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(APO 102 of 2022) For the Dhruva Woolen Mills :- Mr. Jishnu Saha, Sr. Adv.

Mr. Pranit Bag, Adv.

Mr. Vikram Wadehra, Adv.

Ms. Aisia Hasan, Adv.

Mr. Prathik Choudhury, Adv.

Mr. Mayank Shah, Adv.

Mr. Arghya Chakraborty, Adv.

Mr. Devdutt Saha, Adv Mr. Riddhiman Mukherjee, Advs.

  For the respondent          :-   Mr. S. N. Mookherji, Sr. Adv.
  (APO 102 of 2022 &               Mr. Varun Kedia, Adv.
  APO 52 of 2022                   Mr. Yash Singhi, Adv.
                                   Mr. Avee Jaiswal, Adv.
                                   Mr. Himadri Roy, Advs.

  For the respondent Nos.1&2 :-    Mr. Sakya Sen, Sr. Adv.
                                   Mr. S. R. Kakrania, Adv
                                   Ms. Shreya Goenka, Advs.
    For the respondent nos.4,5,6:-           Mr. Aditya Kanodia, Adv.
   APO 102 of 2022 & respondent             Ms. Suparna Sardar, Advs.


   For the respondent No.9         :-       Ms. Reshmi Ghosh, Adv.
   APO 102 of 2022                          Ms. Parna Mukherjee, Advs.


   For the Dhruva Woolen Mills :-           Mr. Pranit Bag, Adv.
                                            Ms. Jayashree Ramacharan, Adv.
                                            Mr. S. S. Banerjee, Adv.
                                            Mr. Vikram Wadehra, Adv.
                                            Mr. Mayukh Roy, Adv.
                                            Mr. Indradeep Basu, Adv.
                                            Swagata Roy, Advs.


   Judgment On                     :-       30.09.2024

Biswaroop Chowdhury, J.:-

The above appeals are taken up together for their interconnectiveness. These appeals arise out of the order dated 17th May 2022, passed by the Hon'ble Justice Krishna Rao in IA GA. 12 of 2022 in C.S. 12 of 2009 and order dated 4th October 2021 passed by the Hon'ble Justice Moushumi Bhattacharya as her ladyship then was in IA. GA 9 of 2021 in C.S. 12 of 2009. As the Appeal APO No-102 of 2022 was preferred against the Order dated 4th October 2021 passed by the Hon'ble Justice Moushumi Bhattacharya in IA. GA. 12 of 2022 in C.S. 12 of 2009 refusing to pass an order of injunction restraining sale of land at Thane and during pendency of the Appeal Land at Thane had already been sold, the Appeal APO No. 102 of 2022, has become infructuous and is treated as disposed of without further discussion. The instant appeal APO-113 of 2022 arises out of the interlocutory Order dated 17th May 2022 passed by a Learned Single Judge of this Court wherein the Learned Judge was pleased to dismiss the application being IA GA 12 of 2022 in C.S. 12 of 2009 where the plaintiffs prayed for the following reliefs.

Learned Advocate also submits that Gurdayal Berlia had five sons. The eldest Satyanaryan Berlia died issueless in the year 2003 ie. before family disputes arose. Another son Shiv Kumar Berlia had special needs, he died in the year 2022. He was unmarried and issueless. The three remaining sons who are all at loggerheads are Vijay Kumar Berlia (defendant no-3) Om Prokash Berlia (defendant no-1) and Narendra Kumar Berlia (Plaintiff no-1). Learned Advocate submits that each of the remaining three brothers also have only 500 shares each in the defendant no-15 (pesticides and Brewers Limited now PB Global Limited) being the Company against which the present derivative suit has been filed, and the rest of the controlling shares (ie. 42. 69%) are held through a network of family companies. It is submitted that the last admitted shareholding of the family in the defendant No. 15 is 42.69% shares held primarily through different family companies till 2004 before Om Prakash Birla at an alleged Extra Ordinary General Meeting without notice to the other brothers caused 500,000/- preferential shares to be allotted to his associates where defendant no-1 purported to gain control. The present suit was filed immediately after this fact was discovered by the plaintiff no-1. Learned Advocate submits that the Learned Trial Judge completely overlooked the fact that the suit has been filed not by the plaintiff as a shareholder but it is a derivative suit where the plaintiff qua shareholder espouses the cause of action of the company. Thus the concept of a shareholder not having any interest in the company's property does not apply. Learned Advocate has also relied upon the Order dated 16th June 2011 passed by the Learned Division Bench in Appeal APO-167 of 2011 and Order dated 12th August 2014, passed by the Hon'ble Supreme Court. Learned Advocate submits that the sale of Thane Property on 31st March 2022 is against the interest of the Company and in violation of the order dated 4th October 2021 passed by a Learned Single Bench of this Court. Learned Advocate further submits that there is faulty valuation, under value sale, and sale consideration payable 5 years after absolute transfer. Learned Advocate also submits that by absolute transfer the buyer gets the property and is free to deal with it in any manner it so chooses without paying the consideration amount. In case of default the seller will have to sue the buyer who by that time may have already transferred/mortgaged the property. Learned Advocate submits that setting aside of the sale of the Thane Property, which is in the defendant No153 only asset is in the interest of the company, whether it is a derivative suit or in an oppression mismanagement petition the interest of the company is paramount since the company is the eo-nominee plaintiff Learned Advocate submits that if at all the sale of Thane Property is not set aside or stayed for the time being appropriate orders are required for protection of the consideration yet to come. (Rs 185.91 crores). Learned Advocate relies upon the following Judicial decision. Syed Mahomed Ali Vs M.R.Sundaramurthy and ors. (Reported in AIR 1958. Madras 587) MSDC. Radharamanan Vs MSD. Chandrasekara Raja and Anr (Reported at (2008) 6 SCC P 750) Learned Counsel for the respondent/defendant no-15 submits that the appellants have not come with clean hands as they are pursuing the said land for self interest in the garb of a suit for derivative action praying for an injunction restraining the respondents from dealing with the land in any manner. Learned Counsel further submits that the Appellants namely Narendra Kumar Berlia and Vijay Kumar Berlia merely hold 500 shares that is 0.05% shareholding of the company. Learned Counsel submits that it is well settled proposition that shareholders have no right over assets of the company. Learned Counsel relies upon the order of the Hon'ble Supreme Court of India dated 12th August 2014, in SLP(c) No. 16759-16760 arising out of Order dated 16th June 2011 vacating the interim order and directing that the sale of subject land to abide by the outcome of the suit. Learned Counsel that the said land was sold at the best possible price in accordance with the valuation report prepared by independent Court appointed valuers and the funds from the said sale was utilized for paying back the creditors and enhancing the working capital of the company. It is submitted that the Company sold the land in haste to the reasons above at the best possible price.