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4.5. The fifth respondent, who is the appellant in C.A.No.13 of 2009, was also made as a nominee Director of the first respondent-Company by the second respondent-Investor and he was the Chairman of Haldia Port Trust and a retired Civil Services Officer of I.A.S. Cadre of 1969 batch.

4.6. It is stated that in January, 2007, two projects were secured for the first respondent-Company, one from the Government of Andhra Pradesh for Machilipatnam Port Project and another from the Government of Orissa for Subarnarekha Port Project. In respect of the Machilipatnam Port Project awarded by the Government of Andhra Pradesh, the same was awarded in favour of a "Consortium" consisting of Maytas Infra Limited (Maytas), Nagarjuna Company Limited (NCC), SREI and Sarat Chatterjee & Co. (VSP) Private Limited (SARAT).

11.8. It is the case of the petitioners that it was due to that reason the new Memorandum of Understanding was entered on 14.11.2007 and that was alleged to be a conduct of oppression on the part of the second respondent, being a majority shareholder of the first respondent-Company. The oppression sought to be raised against the second respondent in this regard was that due to the non-funding of Machilipatnam Port Project, the petitioners as well as the first respondent-Company had to be compelled to enter Memorandum of Understanding on 14.11.2007 agreeing to part away a huge amount of Rs.52.50 Crores for Subarnarekha Port Project and for sale of the interest held in Machilipatnam Port Project to the extent of Rs.35 Crores. In fact, the pleadings in this regard show that the petitioners have specifically pleaded that the conduct of the second respondent regarding Machilipatnam Port Project in not providing bank guarantee to the Government of Andhra Pradesh is only in breach of the Investment Agreement.

11.12. Again, in my considered view, the Company Law Board has committed gross error in concluding that the first respondent-Company is a party to the award of the contract of Machilipatnam Port Project by Government of Andhra Pradesh due to reason that Maytas, the Lead member of Consortium Agreement has enclosed its letter of assurance to the first petitioner and the second respondent in the email dated 17.5.2007 sent to the first respondent-Company and informed that SREI portion of equity would be contributed by the first respondent and therefore, it should be presumed that the Machilipatnam Port Project is that of the first respondent-Company. There is absolutely no reason for arriving at such a conclusion. Even assuming that the second respondent has taken a stand that as a member of the Consortium for which contract was granted its portion of contribution to the Machilipatnam Port Project will be contributed through the first respondent, the non-funding by the second respondent towards the project cannot at all be deemed as either a conduct oppressive to the first respondent-Company or against the interest of its members.

12.3. Even as per the petitioners the only two projects of the first respondent-Company which were undertaken after its incorporation were the Machilipatnam Port Project of Government of Andhra Pradesh and Subarnarekha Port Project of Government of Orissa. As far as Machilipatnam Port Project is concerned, as I have analyzed in detail earlier, the complaint is that in respect of Rs.10 Crores claimed against the Consortium Agreement by its Lead Member-Maytas, the second respondent, being one of the members of the Consortium, has not contributed towards performance security. It is not the complaint of Maytas, the Lead Member, against the second respondent that the second respondent has not performed its function as per the Consortium Agreement. Even if such complaint is made by Maytas, in the context of my holding that Machilipatnam Port Project cannot be treated as a project of the first respondent-Company, any such complaint by Maytas against the second respondent cannot be made available either to the first respondent-Company or the petitioners to bring home the complaint of oppression under Section 397 of the Act towards the first respondent-Company by the second respondent. Even the petitioners as partners of Creative Infrastructure or as Directors of the first respondent-Company to contribute the share of the second respondent to the extent of 38% arose only from the Investment Agreement dated 26.5.2006. Inasmuch as under the Investment Agreement Maytas is not a party, there is nothing to infer that in respect of the affairs of the first respondent-Company there has been oppression on the part of the second respondent in non-furnishing of performance security in accordance with the letter of intent by the Government of Andhra Pradesh dated 20.1.2007.