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Judgment
Per : Justice Sharad Kumar Sharma, Member (Judicial):
The Appellant in the admitted status of being the ``Preference Shareholder’’, questions the propriety of the Impugned Judgment dated 24.10.2024, as it has been rendered in CP No. 123 / BB / 2022, as passed by the learned Adjudicating Authority, NCLT, Bengaluru Bench, in the matters of the Company Petition, being the proceedings, which were held under Sub Section 3 of Section 55 of the Companies Act, 2013.
The consequence of the Impugned Judgment, as it has been rendered by the learned Adjudicating Authority, the proceedings under Section 55 (3) of the Companies Act, that the same has been dismissed on two grounds;
Firstly, it was held that in the capacity of being a Preference Shareholder, the Appellant has got no individually grafted statutory enforceable rights, as such which could be enforced before the learned NCLT with regards to the question emanating from the provisions contained under Sub Section 3 of Section 55 of the Companies Act, 2013, coupled with the fact that;
Secondly, since the parties were already under the Shareholders Agreement, which are binding upon them, and as per the terms of the Shareholders Subscription Agreement dated 26.12.2008, the parties were governed by the Arbitration Clause as contained therein under Clause 13 and in that eventuality it was observed that, in case, if the Appellant, in the capacity of being a ``Preference Shareholder’’, has any right to enforce upon, he is not left remediless, but rather, will have to resort to the judicial recourse Forum, which is available to him in accordance with law and more particularly in accordance with the Shareholders Subscription Agreement dated 26.12.2008 and hence, the Appellant’s right stands protected under Clause 13.1 & Clause 13.2 and proceedings under Sub Section 3 of Section 55 of the Companies Act, 2013, was rejected on the ground that the Appellant in the status of being a Preference Shareholder proceedings at his behest would not be maintainable.
The learned Practising Company Secretary appearing for the Appellant submitted that, owing to certain factual interpretation, which he attempted to venture, he intended to argue that in fact, the proceedings at his behest would be maintainable owing to there being certain flagrant disregard to the conditions of the said Agreement dated 26.12.2008, affecting his alleged legal rights.
The aspect of as to what extent the covenants of the Shareholders Agreement dated 26.12.2008, was violative, would exclusively made as a subject only when the Appellant invokes the rightful Forum agreed to be invoked and made available to him under law.
The Forum of the learned NCLT and the consequentially preference of the Appeal before this Tribunal under Section 421 of the Companies Act, 2013, would not be available to him in the exclusive admitted status of being a ``Preference Shareholder’’, as Shareholders being investors, have no right, the issue which has been settled by the larger Bench, in Clarion Health Food LLP v. Goli Vada Pav Pvt. Ltd., through Interim Resolution Professional, 2024 SCC OnLine NCLAT 1314 vide Para No. 49, which is extracted hereunder:
``49. In view of the discussion above, we are of the view that the appellant being a shareholder of the company is not the “aggrieved party” as per the provisions of the Code. The appellant has no locus to file this appeal and the same is not maintainable. Accordingly, the appeal is dismissed. Pendingl. As if any are closed. There would be no order as to costs.’’
Hence, the findings, which has been recorded by the learned Adjudicating Authority in Para Nos. 5 & 6, do not suffer any apparent legal vices, which may call for an interference by this Appellate Tribunal in the exercises of its Appellate Jurisdiction under Section 421 of the Companies Act, 2013.
Having said so, we make it clear that we have not ventured on merits of the claim of the Appellant, all issues are still left open for him to be addressed upon when he invokes Clause 13 of the ``Shareholders Agreement’’ dated 26.12.2008, if so advised or when he approaches before any other Forum, which is available to him under law.
Exclusively, because of the fact that the present proceedings at the behest of the ``Preference Shareholder’’, would not be maintainable, as having no sustainable and legally enforceable rights. Accordingly, the instant Company Appeal (AT) (CH) No. 14 / 2025, would stand dismissed. The connected pending Interlocutory Applications, if any, would stand closed.