National Company Law Appellate Tribunal
Mr Shankar Sundram vs M/S Amalgamations Limited on 10 December, 2021
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NATIONAL COMPANY LAW APPELLATE TRIBUNAL
CHENNAI BENCH
CHENNAI
APPELLATE JURISDICTION
IA NO.580/2021
IN
TA NO.18/2021
(COMPANY APPEAL (AT) No.325/2019)
In the matter of
Mr Shankar Sundaram Applicant/Appellant
Vs
M/s Amalgamations Ltd & Ors Respondents
Present:
Mr. K. Ravi, Mr Shantanu Singh, Mr. P. Murugan, Advocates for Appellant.
Mr. Krishna Srinivasan and Ms Geethi Ara, Advocates for Respondents
No.1,3,4,6-11, 13, 16.
Mr D Prabhakaran, Advocates for R12.
Mr. CA Sundaram, Sr Advocate For Mr. Thriyambak Kannan, Advocate, Ms
Rohini Musa, Advocate for Respondents No.24 to 26.
ORDER
VIRTUAL MODE M. Venugopal (J) The Applicant/Appellant has preferred IA No.580/2021 in TA No.18/2021 (Comp App (AT) No.325/2019) seeking permission to file the Additional Documents in the main Appeal and to take them on record, by this 'Appellate Tribunal'.
2. The Learned Counsel for the Applicant/Appellant submits that the 'Appellant' in the main Appeal has sought reliefs against 'oppression and 2 mismanagement' and that the 'majority' - self-appointed themselves as Directors in the Boards of all the profit making subsidiaries of the 1st Respondent company, are not providing any opportunity to the Applicant/Appellant, although, all the shareholders had equally inherited the entire shareholding of their ancestors.
3. It is the stand of the Applicant/Appellant that the majority are siphoning away huge funds of the Group and enriching themselves to the tune of several hundred of crores of rupees by fixing and appropriating for themselves, disproportionately huge remuneration and commission packages from the profit making subsidiaries. In fact, they give only a meagre dividend to the Applicant/Appellant, which the majority also take for themselves apart from their huge 'Remuneration and Commission Packages'.
4. According to the Learned Counsel for the Applicant/Appellant, in recent years, this act of oppression is escalated and so far, the majority had appropriated more than Rs.700 crores for themselves and that the Applicant/Appellant was paid only a dividend of Rs.20 crores.
5. The Learned /Counsel for the Applicant/Appellant contends that the 'Working Sheet' showing the figures for 2017-18, 2018-19, 2019-20 and 2020-2021, duly certified by the Appellant's Auditors clearly establish the fact that the main act of 'oppression' is on the increase. As a matter of fact, the said figures exhibit that the profit to the 'Main Holding Company' is adversely affected and gets reduced because of the majority, especially Mrs Mallika Srinivasan and her daughter Lakshmi Venu.
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6. The grievance of the Applicant/Appellant is that he is the only shareholder depending wholly on the dividend, while others are benefited by the fat remuneration and commission packages. Furthermore, the 1st Respondent/Company for the year 2020-2021 had booked an after tax profit of Rs.5660.25 lakhs, they declared an interim dividend in September, 2020 which worked out to Rs.62,40,000/- to the Applicant/Appellant, but this year they had declared a much lesser dividend that he received only Rs.9,36,000/- through the profit is on the increase.
7. The Learned Counsel for the Applicant/Appellant submits that the Applicant/Appellant has filed IA No.580/2021 in TA No.18/2021 in the main Comp App. (AT) No.325/2019 seeking permission to file the Working Sheet for four years from 2017-18 to 2020-2021, certified by the Appellant's Auditors and 'Certificate of Dividends' issued by the Company for Applicant's share and these documents are relied upon by the Applicant/Appellant to make out his points, which goes to the root of the matter.
8. The Learned Counsel for the Applicant/Appellant points out that if IA No.580/2021 (filed by the Applicant/Appellant to submit the Additional Documents) is allowed by this Tribunal, no prejudice will be caused to anyone because of the fact that these documents contain only figures extracted from the Annual Report submitted by the Company through to its General Body, duly certified by them. Further that IA No.580/2021 is filed in a bona fide manner and, therefore, the Learned Counsel for the Applicant/Appellant prays for allowing the IA No.580/2021 in TA No.18/2021 in Comp. App (AT) No.325/2019, of course, in the interest of justice. 4
7. In response, the Learned Counsel for the Respondent No.1,3, 4. 6 to 11, 13, 16 submits that the Additional Documents sought to be ushered in by the Applicant/Appellant in IA NBoi.580/2021 in TA No.18/2021 in Comp App (AT) No.325/2019 are indeed subject matter of the instant pending Appeal before this Tribunal and that the 'Tribunal' had very elaborately discussed the subject matter in issue and passed the impugned order in TCP No.1/2016 (CP 94/1999) and these 'Additional Documents' sought to be introduced by the Applicant/Appellant at the Appellate stage are not to be permitted because of the fact that based on the available materials on record, this 'Tribunal' can determine the pending main Appeal .
8. The Learned Counsel for the Respondents No. 1,3,4, 6 to 11, 13, 16 refers to the decision in SP Jain Vs Kalinga Tubes Ltd (1965) 35 Comp Cas 351 (Para 18 and 34) and contends that only act upto the date of 'petition' can be considered and further that the 'petition' has to be decided on the basis of the fact as they were, when the application was made. 9 The Learned Counsel for Respondents No. 1,3,4, 6 to 11, 13, 16 cites the decision of Hon'ble Supreme Court in Sangramshingh P Gaekwad amd Ors V Shantadevi P Gaekwad and Ors (2005) 11 SCC 314 (vide paragraph
200) and takes a stand that a case for the grant of relief against 'oppression must be made out in the Company Petition itself and that the 'defects' therein cannot be cured nor the lacuna be filled up by other oral or documentary evidence. Also that, on behalf of the Respondents No. 1,3,4, 6 to 11, 13, 16, a reference is made to the decision in Ashoka Betalnut Company Pvt Ltd V. M.K. Chandrakanth reported in 1997 88 CompCas 274 Mad. 5
10. The Learned Counsel for the Respondents No. R24 to 26 submits that the Applicant/Appellant cannot be permitted to produce the documents mentioned in IA No.580/2021 in TA No.18/2021 because of the fact that all the documents which the Applicant/Appellant is trying to project as Additional Documents are self serving one and even the certification made by the Appellant's Auditor in respect of the Working Sheet for the past four years (2017-18, 2018-19, 2019-20, 2020-21) is a self serving one and even without the Additional Documents in IA NO.580/2021 this Tribunal can decide the main Appeal, because of the fact that the Tribunal had considered all aspects of the matter in the impugned order in a very elaborate manner. 11 The Learned Counsel for the Respondents No.24-26 contends that the Applicant/Appellant is trying to buttress the case and in fact before the 'Tribunal' the Balance Sheet was produced and in fact the Annual Report for 2018 was before the Tribunal and in any event, IA No.580/2021 is not to be allowed to plug loophole of the case.
12. To be noted, that it is not open to any of the litigants at the stage of an appeal to bring in Additional Documents/evidence, with a view to enable one of the parties to remove certain lacunae in their case as per decision Pushpa Bai Stalin V. Dhaya Poomkamazh reported in (2003) 1 MLJ Page 33.
13. It cannot be forgotten for filling up the gaps either in evidence or factual matrix of the case, the admission of Additional Documents/evidence is not to be permitted. Also that an Appellate Forum ought not to receive Additional Documents, as a matter of course.
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14. The real test is whether an Appellate Forum is able to pronounce judgement/pass orders in main case on the materials available before it, without taking into consideration the Additional Documents/evidence sought to be produced.
15. At this juncture, this Tribunal aptly points out the Judgement of the Hon'ble Supreme Court of India in Union of India V. Ibrahim Uddin & Anr (Decided on 17.7.2012) wherein at paragraphs 25 to 28 it is observed as under:-
"25. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008; Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553).
26. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC
798).
27. Under Order XLI , Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a 7 particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala Pancham & Ors. (supra) ].
28. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide: State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101)".
16. As far as the present case is concerned, in view of the fact even in the absence of the 'Additional Documents' sought to be projected in IA No.580/2021 in TA No. 18/2021 in Comp App (AT) No.325/2019, this 'Tribunal' is of the considered opinion that the 'Lis' in TA No.18/2021 (Comp Appeal (AT) No.325/2019) can be determined, of course, based on the available materials on record. Viewed in that perspective the IA No.580/2021 in TA No.18/2021 (Comp Appeal No.325/2019 seeking permission to file Additional Documents) is not entertained by this 'Tribunal' in furtherance of substantial cause of justice.
17. In fine, the IA No.580/2021 is dismissed. No costs.
(Justice M. Venugopal) Member (Judicial) (Mr. Kanthi Narahari) Member (Technical) Dated: 10 -12-2021 bm