J. SHIVAKUMAR Vs. NAVRANG SHIPPING P. LTD.

JUDGEMENT

(1.) THE present application is filed by the applicants seeking directions from this Bench to direct the respondents to pay a sum of Rs. 4 lakhs per month to the first applicant herein right from October 28, 2008, forthwith. Shri Shanmugam, learned counsel appearing for the applicants narrated the brief facts of the case. He submitted that the applicants filed the above petitions under sections 397 and 398 and various other provisions of the Companies Act, 1956, seeking directions from this Bench as prayed therein. He further submitted that the respondents filed C.A. No. 21 of 2011 in the above petition and after adjudicating the matter the said C.A. was dismissed. After dismissal of their application the respondents filed a detailed counter to the petition along with several documents. This Bench gave liberty to the applicants herein to apply for interim reliefs. Accordingly, the present application is filed seeking the reliefs. It is submitted that the applicants/petitioners and respondents hold equal shareholding in respondent No. 1 company. It is relevant to mention that the alleged memorandum of understanding dated October 28, 2008, refers to only the desire of the first applicant herein to relinquish his entire claim over the firm but it does not refer to about any resignation or removal or even relinquishment from the position of chairman or director of respondent No. 1 company. Therefore, even from the manipulated memorandum of understanding dated October 28, 2008, it cannot be concluded that the first applicant herein has resigned from the position as chairman or director of the company or the first applicant had been removed from the said post(s). For the aforesaid reason, the respondent cannot claim to be the sole director and cannot solely enjoy the benefits of respondent No. 1 company. The second respondent withdrawing an amount of Rs. 4 lakhs every month for his family expenses towards salary, mobile bills, petrol and car maintenance, insurance premium, reliance capital contribution, repayment of housing loan, payment of chit and other payment towards legal expenses, etc., is illegal and mala fide as the applicants, though they also hold fifty per cent. of the capital, are not paid the same. It is to state that respondent No. 1 company was started in the year 1994 on the equal hard work and contribution of the first applicant and the second respondent. In view of the aforesaid reasons, learned counsel requested the Bench to direct the respondents to pay a sum of Rs. 4 lakhs per month to the first applicant herein right from October 28, 2008. In support of his case, learned counsel relied upon the following citations:

(2.) THE respondents filed their counter to the application. Shri R. Murari, learned senior counsel for the respondents narrated the brief facts. He submitted that the present application is scandalous, abuse of process of court and requires to be rejected in limine. He submitted that the relief which is sought by the applicants, has already been sought in the above company petition at paragraph (f) of the interim reliefs and this Bench did not deem it fit to grant such relief. The applicants made the same allegations as are contained in the petition and sought a direction from this Bench to pay a sum of Rs. 1 lakh per month. However, in the present application the amount has been arbitrarily enhanced to Rs. 4 lakhs per month. This would reveal the manner in which multiple applications are sought to be filed claiming essentially the same relief which this Bench did not think it fit to grant in the first instance. Further, the allegations as made in the application cannot be gone into at this interim stage and could only be considered when the main company petition is taken up for hearing. The respondents filed a detailed counter to the main petition pointing out that all such allegations are false and frivolous and the applicants indulged in forum shopping. While matters stood thus, the first applicant has relinquished his office as director of the company. Therefore, on no basis the applicants can claim to be compensated, in any manner, as sought for by them C.A. No. 21 of 2011 filed by the respondents for stay of the proceedings in the above petition is absolutely not connected and is irrelevant to the present application. Further, the applicants, would not be entitled to the relief sought for in the present application, i.e., a direction for payment of money, as it will not come within the scope of proceedings under sections 397 and 398 of the Act; this being essentially a matter to be decided in civil proceedings. In so far as the memorandum of understanding dated October 28, 2008, is concerned, such matters would require to be determined on the basis of evidence which aspect has been observed by the learned single judge of the Madras High Court while deciding the interim applications filed by the applicants in the said civil suit. The observation of this Bench in the proceedings dated November 16, 2011, for "liberty to apply" is not a liberty for the parties to move interim application for the same relief as the one in the company petition which this Bench did not choose to grant to the applicants in any way. For the reasons stated supra, the present application is not maintainable. As regards the allegation regarding withdrawal of an amount of Rs. 4 lakhs per month by the second respondent is concerned, it is submitted that the second respondent is being paid only a sum of Rs. 25,000 as salary from the bank account of respondent No. 1 company and absolutely not withdrawing the amounts from respondent No. 1 company as alleged in paragraph 16 of the application. The respondents filed additional counter to the application. Heard learned counsel for the parties, perused the documents, pleadings and citations relied upon by them. The applicants filed the petition before this Bench by invoking various provisions of the Companies Act, 1956 and sought main and interim reliefs. In the main reliefs, the petitioners, inter alia, sought declaration that the first petitioner is the chairman of respondent No. 1 company and sought an injunction restraining the respondents from giving effect to the bogus memorandum of understanding dated October 28, 2008. In the interim reliefs, among the other reliefs, the petitioners at paragraph (f) sought direction, directing respondent No. 1 company as well as the second respondent to pay to the first petitioner a sum of Rs. 1 lakh per month and other allowances from October 28, 2008, till date and continue to pay the same towards his salary and remuneration as claimed and withdrawn by the second respondent pending disposal of the petition. From the perusal of the petition, the petitioners have alleged various acts including misappropriation of funds by the second respondent for his personal gain. The petition was mentioned on January 11, 2011 and as per the attendance -cum -order sheet it is evident that the company petition was moved for interim reliefs and respondents appeared and sought time to file counter. The Bench afforded an opportunity to the respondents to file counter. Thereafter, the respondents filed an application being C.A. No. 21 of 2011 and ultimately the Bench dismissed the said application vide its order dated March 15, 2011. The petitioners, by way of an interim relief, have sought direction to the respondents to pay a sum of Rs. 1 lakh per month and the said relief still subsists and there is no evidence that the petitioners did press for the same. Pending consideration of the same, the petitioners have filed the present application seeking directions from this Bench to pay a sum of Rs. 4 lakhs per month to the first applicant herein right from October 28, 2008. From the facts as stated in the application, the applicants have almost repeated the same from the petition. I do not find any case made out by the petitioners seeking such relief in the application. In paragraph 16 of the application, the applicants have detailed out the figures towards the expenses. The averment made in paragraph 16 is that "whether the second respondent, happens to be a director of the company, just enjoying fifty per cent. shareholding, can be allowed to withdraw and enjoy every month salary nearly to the tune of more than Rs. 4 lakhs as detailed hereunder". To the averments made in this paragraph, there is no substantial proof to show that the second respondent is withdrawing the amounts towards the expenses as stated in paragraph 16 of the application. Even otherwise, this Bench without proper enquiry into the allegations cannot direct respondent No. 1 company to pay the amounts though the petitioners may be entitled to the same. It is to say that the shareholders can share the dividend of the company, if it is declared, but cannot seek directions to be compensated, seeking compensation from the management, one can avail the alternate remedy available to them before the proper forum but not before this Bench. Even otherwise, as regards the payment of salary to the directors is concerned it is for the board and the company to decide. In the present case, there is dispute with regard to the directorship of the first applicant herein and if the petitioner had any grievance made/alleged in the petition, the same will be decided after hearing the parties. Learned counsel for the applicants relied upon certain decisions but they are not applicable to the facts of the present case. In view of the reasons, the application is devoid of merits and liable to be dismissed. Hence the same is dismissed. No order as to costs.