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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.

5. Nurcombe Vs Nurcombe and Anr. [(1985) 1 WLR-370.] The decisions relied upon by Learned Counsel for the purchaser are the authorities with regard to non-maintainability of derivative suit where sufficient remedial measures is provided under Section 241 of the Companies Act.

The Hon'ble Delhi High Court in ICP Investments (Supra) was pleased to observe as follows:

"37. I must however hasten to add that while an application under Section 397 of the Companies Act, 1956 for relief in cases of oppression was available to a member of the company, only when the affairs of the company were being conducted in a manner oppressive to such member or other members, but under section 398 thereof an application for relief in cases of mismanagement could lie even on complaint that affairs of the company were being conducted in a manner prejudicial to the interests of the company itself, just like section 241 of the companies Act, 2013 is that the separate remedies of oppression and mismanagement under sections under 397 and 398 of the erstwhile Act of 1956 have been combined, though under the 1956 Act also, a petition was mostly filed, both under sections 397 and 398. However notwithstanding which, derivatives actions for the benefit of a company were held to be maintainable in India. However, my research does not reveal the said aspect to have been considered in any of the judgments holding a derivative action to be maintainable in India. I therefore take the liberty of a holding derivative action to be per se not maintainable, specially claiming a relief of declaration, which under Section 34 of the Specific Relief Act, 1963 is a discretionary relief, and which discretion will not be exercised in favour of the plaintiff when a statutory remedy for a relief is available."

The other contention of Mr. Mukherjee that the order impugned was violative of the provisions of the Companies Act by placing reliance upon Section 111A thereof, since we propose to modify the order of injunction by restricting the transfer of shares only to the extent held by the parties and not in respect of other shares of the defendant no. 6, Mr. Mukherjee cannot have any grievance.' The matter went up before the Hon'ble Supreme Court but there was no observation with regard to the locus standi of the appellants. In the case of Syed Mohamed Ali V.R. Sundarmorthy and others reported in AIR-1958 Madras P 587 the Hon'ble Madras High Court observed as follows 'We are not hampered by such rigid technicalities of procedure and if the minority in a company complains of an oppression and disclosed certain grounds of complaint in the petition which are made the basis for the relief, we would hold that the Court should ordinarily investigate the charges. Such investigations may in certain cases be necessary even to regulate the future conduct of the company for providing against recurrence of such abuses of power by the majority.

'42. A similar question came up for consideration in Sangramsinh P. Gaekwad V. Shantadevi P. Gaekwad wherein this Court upon noticing a large number of decisions including Needle Industries (India) Ltd. Observed: (SCC P. 375 para 191) "191. In Shanti Prasad Jain referring to Elder case it was categorically held that the conduct complained of must relate to the manner of management of the affairs of the company and must be such so as to oppress a minority of the members including the petitioners qua shareholders. The Court, however, pointed out that law, however, has not defined what oppression is for the purpose of the said section and it is left to the court to decide on the facts of each case whether there is such oppression."