Ch. Mohd. Sharief Tariq, Member - (1.) Under adjudication is the company petition that came to be filed on May 12, 2010 before the Company Law Board under section 111 and sections 397, 398, 402 and 403 of the Companies Act, 1956 and it was numbered as C.P. No. 36 of 2010, which stood transferred to the National Company Law Tribunal and renumbered as T.C.P. No. 48 of 2016. The main prayers which have been made in the company petition are as follows: (1) To cancel the transfer of 2,43,00,000 shares of Rs. 10 each amounting to Rs. 24,30,00,000 share capital issued in the name of respondents Nos. 2, 7, 8, 9 and 10 in the capital of respondent No. 1-company and restore the name of the petitioner as the holder of all such shares in the capital of respondent No. 1-company; and (2) To rectify the register of members of the company suitably consequent upon such cancellation and registration of the shares. However, the rest of the prayers are consequential in nature. From the pleadings, it is found that the very purpose of filing this petition is to get the implementation of the award dated December 16, 2009 passed by the arbitral tribunal. In this connection, the petitioner has made a detailed mention under paragraph 6.20 of the company petition. Counsel for the petitioner also filed a memo dated March 6, 2017 for the implementation of the arbitral award dated December 16, 2009.
(2.) We have heard both of the sides and perused the documents placed on file. It is on record that Ms. B. Abirami, advocate, associated with M/s. K.S.R. and Co. caused appearance on behalf of respondent No. 3 on April 26, 2011. Thereafter, respondent No. 3 chose not to appear. Hence, respondent No. 3 is proceeded ex parte. Respondent No. 4 was deleted on January 24, 2017 from the company petition by the petitioner. Respondents Nos. 5, 6, 7 and 11 have already been set ex parte vide order dated December 15, 2016. However, Shri Gautham Venkatesh, counsel representing respondent No. 7 present and stated that he has filed an application for setting aside the ex parte order dated December 15, 2016 passed against respondent No. 7 and in support, he has filed an affidavit along with the application for condonation of delay. Counsel for the petitioner stated that Mr. K.C. Palanisamy, being the chairman of the group (as has been mentioned at page 104 of the award) admitted before the Company Law Board in his affidavit dated July 13, 2006 that he is the party to the agreement dated July 19, 2004 due to which he came to hold 90 per cent of the capital of respondent No. 1 through companies in Cheran. In view of the said fact having been admitted, we do not see that respondent No. 7 is going to be prejudiced in any manner if the award is implemented. However, in order to comply with the principles of natural justice, the ex parte order dated December 15, 2016 passed against respondent No. 7 is set aside and he is allowed to make submissions. Then he submitted that he is not the party to the arbitral award.
(3.) Counsel for the respondents has drawn our attention towards the order of the hon'ble High Court of Delhi dated July 15, 2015 wherein an order of injunction in relation to Company Application No. 2258 of 2014 has been granted against Mr. K.C. Palanisamy that he shall not dispose of or otherwise part with, in any way, directly or indirectly any of his assets, inter alia, mentioned by him in the affidavit dated August 22, 2006 filed in Crl. Misc. Petition No. 4750 of 2006 and also in annexure A8. We have minutely examined the order passed by the hon'ble High Court, Delhi, in the said matter. The said order does not mention anything about the shares held by Mr. K.C. Palanisamy in SPIL. Therefore, we cannot presume that term "any of his assets" includes the shares held by him in SPIL. Otherwise also the shares which is the subject matter of an award cannot be injuncted except the award is challenged. Even, the affidavit dated August 22, 2006 does not reveal anything about the shares being held by Mr. K.C. Palanisamy in SPIL. Further, annexure A8 at page 12, under item No. 23 of the table indicates the shares (25,00,00,000) are held by respondent No. 8, viz., Cheran Holdings P. Ltd., in SPIL but the fact is that the said increase in the share capital was declared illegal and void by the Company Law Board vide its order dated October 9, 2006 (Kasturi and Sons Ltd. v. Sporting Pastime India Ltd., 2007 139 CompCas 623 (CLB)) passed in C.P. No. 50 of 2005, and the consideration of the shares received back was returned by SPIL to the creditor, i.e., the Canara Bank.;