Mohd Sharief Tariq, Member - (1.) During the previous hearings the petitioner and the Respondents have engaged themselves to settle the matter, provided a fair valuation is done by an independent Chartered Accountant for exit of either of the parties. The parties were given the opportunity to arrive at a consensus on the name of any one of the independent Chartered Accountants for assessing true and fair value of the shares of R1 company to enable the willing party to buy back the shares. But the parties could not reach to any consensus for appointment of a suitable person as independent Chartered Accountant for the above said purpose. However, on 10th January 2017 this Bench has suggested M/s. Sundaram and Srinivasan, Chartered Accountants for undertaking the above mentioned assignment to which both of the parties did agree and then, this Bench after going through the outlines of assignment suggested by respective parties, has arrived at a conclusion with the consent of the parties that the scope which has been filed by the counsel for Respondents 4 and 5 is acceptable by them. Therefore, M/s. Sundaram and Srinivasan is hereby appointed as independent Chartered Accountant to determine the true and fair value of the shares of R1 company in the light of the outlines of the assignment which are as follows:- i) The Chartered Accountant shall arrive at the enterprise value of the first Respondent company based on the financials, past performance, business potential and the industry scenario prevailing; ii) The Chartered Accountant shall consider 30th June 2016 as a cut off date for the purpose of arriving at the enterprise value to enable the buy back of the shares by either party; iii) The valuation shall be made on the basis of valuation of shares as a going concern; iv) The Chartered Accountant shall take into consideration the assets of the Respondent company both movable and immovable, tangible and intangible; and v) The Chartered Accountant based on the enterprise value shall suggest the value of per share for the purpose of buyout by either of the shareholders.
(2.) The above exercises shall be completed by the Chartered Accountant within two months from the date, the copy of this order is received. The Chartered Accountant is also given liberty to enlarge the scope if need be, prior to the date agreed upon i.e. 30.06.2012 and also to see the future prospects of R1 company as a going concern. The parties shall bear the remuneration of the Chartered Accountant in the ratio of 50:50 which he is permitted to fix as per the practice in vogue. The parties are directed to assist the Chartered Accountant by providing necessary information, documents, books of accounts and other relevant materials by maintaining appropriate order so that the Chartered Accountant could complete his assignment within the stipulated time.
(3.) However, there is a serious dispute between the petitioner and the respondents which pertains to the allegations that have been levelled by the petitioner against the respondents i.e. siphoning off the valuables, finances, assets and taking away the clientele and employees of R1 company to R6 company. In this connection, on 18.11.2016, this Bench has already heard both of the parties and perused the relevant record. Therefore, it is necessary to give the background and ascertain as to whether prima facie there is some substance in the allegations levelled by the petitioner against the respondents for the purpose of roping in R6 company in order to determine the quantum of the diversion of the business of R1 company to R6 company.;