DIPAK HIMATSINGKA Vs. APL HOLDINGS AND INVESTMENTS LIMITED

JUDGEMENT

(1.) IN this order, I am considering CAs 341 and 342 of 2008 filed by the respondents seeking for dismissal of the petitions CPs 112 and 113 of 2007 filed in respect of the affairs of M/S APL Holdings & Investments Company Limited (the company) and APL Investment Ltd. respectively or in the alternative to permanently stay the proceedings on the ground that the petitioners have already invoked the jurisdiction of Calcutta High Court by filing a suit CS No. 450 of 1998 on more or less same allegations as in the petitions and also seeking for more or less similar reliefs and that the High Court has already passed certain interim orders including maintenance of status quo with regard to the assets and shareholding of and in these two companies.

(2.) THE facts of the case are that the petitioners and the respondents belong to one Himatsingka family. The first petitioner and the 2nd respondent are brothers. After the demise of their father, disputes had arisen between the two brothers resulting in filing of a partition suit by the petitioners before Calcutta High Court. There are two family companies and the petitioners have filed petitions under Sections 397/398 in respect of both the companies. Neither of the companies carries on any business. Both of them own one flat each in the same premises and are in joint possession of the common areas. Both the flats along with the common area have been given on lease and licence basis to the 8th respondent. In both the companies, the petitioners hold 45% shares while the respondents hold 55% shares. The petitioners have filed these instant petitions alleging that the companies are not holding any board and general meetings, that the respondents are guilty of mismanaging the assets of the companies, that they have failed to give inspection of statutory registers/records of the companies to the petitioners, that the respondents have failed to declare dividends, that the respondents directors are siphoning of funds of the companies and that with a view to reduce the shareholding of the petitioners without their knowledge, one of the companies has issued right shares.

(3.) THE respondent companies have no business except owning the flats and receiving the rent from the 8th respondent to whom the flats have been given on lease and license basis. The flats owned by these companies have been claimed as a joint property of the family in the suit. The names of persons who are directors of the company have also been indicated in the annexure to the suit. One of the main allegations in the suit as averred in para 47 of the plaint is that the first defendant i.e. the 2nd respondent, has been mismanaging the affairs of the family companies which include both the companies and that he along with the second defendant i.e. the 3rd respondent have usurped complete control of the bank accounts without accounting for the same.