LAW FOR ALL : NCLAT was completely wrong in holding as though Tata Sons, in connivance with the Registrar of companies did something clandestinely, contrary to the procedure established by law. The request made by Tata Sons and the action taken by the Registrar of Companies to amend the Certificate of Incorporation were perfectly in order.

Thursday, April 1, 2021

NCLAT was completely wrong in holding as though Tata Sons, in connivance with the Registrar of companies did something clandestinely, contrary to the procedure established by law. The request made by Tata Sons and the action taken by the Registrar of Companies to amend the Certificate of Incorporation were perfectly in order.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.440441 0F 2020

TATA CONSULTANCY SERVICES LIMITED … APPELLANT(S)

VERSUS

CYRUS INVESTMENTS PVT. LTD. AND ORS. … RESPONDENT(S)

WITH

CIVIL APPEAL NOs.1314 0F 2020

CIVIL APPEAL NOs.442443 0F 2020

CIVIL APPEAL NOs.1920 0F 2020

CIVIL APPEAL NOs.444445 0F 2020

CIVIL APPEAL NOs.448449 0F 2020

CIVIL APPEAL NOs.263264 0F 2020

CIVIL APPEAL NO.1802 0F 2020

J U D G M E N T

1. Lis in the Appeals

1.1 Tata Sons (Private) Limited has come up with two appeals

in Civil Appeal Nos.1314 of 2020, challenging a final order dated

18122019 passed by the National Company Law Appellate

Tribunal (“NCLAT” for short) (i) holding as illegal, the proceedings of

the sixth meeting of the Board of Directors of TATA Sons Limited

held on 24.10.2016 in so far as it relates to the removal of Shri

Cyrus Pallonji Mistry (“CPM” for short); (ii) restoring the position of

CPM as the Executive Chairman of Tata Sons Limited and

consequently as a Director of the Tata Companies for the rest of the

tenure; (iii) declaring as illegal the appointment of someone else in

the place of CPM as Executive Chairman; (iv) restraining Shri Ratan

N. Tata (“RNT” for short) and the nominees of Tata Trust from

taking any decision in advance; (v) restraining the Company, its

Board of Directors and Shareholders from exercising the power

under Article 75 of the Articles of Association against the minority

members except in exceptional circumstances and in the interest of

the Company; and (vi) declaring as illegal, the decision of the

Registrar of Companies for changing the status of Tata Sons

Limited from being a public company into a private company.

1.2 RNT has come up with two independent appeals in Civil

Appeal Nos.1920 of 2020 against the same Order of the NCLAT, on

similar grounds.

1.3 The trustees of two Trusts namely Sir Ratan Tata Trust

and Sir Dorabji Tata Trust have come up with two independent

appeals in Civil Appeal Nos.444445 of 2020, challenging the

impugned order of the Appellate Tribunal. A few companies of the

Tata Group, which were referred to in the course of arguments, as

the operating companies or downstream companies, such as the

Tata Consultancy Services Limited, the Tata Teleservices Limited

and Tata Industries Limited have come up with separate appeals in

Civil Appeal Nos.440441 of 2020, 442443 of 2020 and 448449 of

2020. The grievance of RNT as well as the Trustees of the two

Trusts, is as regards the injunctive order of the Appellate Tribunal

restraining them from taking any decision. The grievance of the

three operating companies which have filed 6 Civil Appeals is that

CPM has been directed to be reinstated as Director of these

companies by the impugned Order, for the rest of the tenure.

1.4 The original complainants before the National Company

Law Tribunal (“NCLT”for short), who initiated the proceedings under

Sections 241 and 242 of the Companies Act, 2013 namely (i) Cyrus

Investments Private Limited (ii) Sterling Investment Corporation

Private Limited, have come up with a cross appeal in Civil Appeal

No.1802 of 2020. Their grievance is that in addition to the reliefs

already granted, the NCLAT ought to have also granted a direction

to provide them proportionate representation on the Board of

Directors of Tata Sons Limited and in all Committees formed by the

Board of Directors. They have one more grievance namely that the

Appellate Tribunal ought to have deleted the requirement of an

affirmative Vote in the hands of select Directors under Article 121

or at least ought to have restricted the affirmative vote to matters

covered by Article 121A.

1.5 In addition to C.A.Nos. 13 and 14 of 2020, Tata Sons

have also come up with 2 more appeals in C.A.Nos. 263 and 264 of

2020. These appeals arise out of an order passed by NCLAT on 06

012020 in two interlocutory applications filed by the Registrar of

Companies, Mumbai, seeking amendment of the final order passed

by NCLAT in the main appeals. The reason why the Registrar of

Companies was constrained to file 2 interlocutory applications in

the disposed of appeals, was that in the final order passed on 18

122019 by NCLAT in the 2 company appeals, there were some

remarks against the Registrar of Companies for having issued an

amended certificate of incorporation to Tata Sons by striking off the

word “Public” and inserting the word “Private”. NCLAT dismissed

these 2 applications by an order dated 06012020, not merely

holding that there were no adverse remarks against the Registrar of

Companies but also giving additional reasons to justify its findings

in the disposed of appeals, in the purported exercise of the power

available under section 420 of the Companies Act, 2013. Therefore,

Tata Sons have come up with these 2 appeals in C.A.Nos. 263 and

264 of 2020.

1.6 Thus we have on hand, 15 Civil Appeals, 14 of which are

on one side, assailing the Order of NCLAT in entirety. The

remaining appeal is filed by the opposite group, seeking more reliefs

than what had been granted by the Tribunal.

1.7 For the purpose of easy appreciation, we shall refer to the

appellants in the set of 14 Civil Appeals as “the Tata Group” or “the

Appellants”. We shall refer to the other group as “SP Group”

(Shapoorji Pallonji Group) or “the respondents”. Similarly we shall

refer to Tata Sons Limited (or Tata Sons Private Limited) merely as

‘Tata Sons’, as there is a controversy regarding the usage of the

word “Private” before the word “Limited”.

2. Background of the Litigation

2.1 On 08.11.1917, Tata Sons was incorporated as a Private

Limited Company under the Companies Act, 1913.

2.2 Two companies by name Cyrus Investments Private

Limited and Sterling Investment Corporation Private Limited,

forming part of the SP Group respectively acquired 48 preference

shares and 40 equity shares of the paidup share capital of Tata

Sons, from an existing member by name Mrs. Rodabeh Sawhney.

Over the years, the shareholding of SP Group in Tata Sons has

grown to 18.37% of the total paidup share capital.

2.3 The shareholding pattern of Tata Sons Limited is as

follows:

(i) Shares held by two Tata Trusts 65.89%

(ii) Shares held by SP Group 18.37%

(iii) Shares held by operating Companies 12.87%

Total 97.13%

The balance is held by RNT and a few others.

2.4 From 25.06.1980 to 15.12.2004 Shri Pallonji S. Mistry,

the father of CPM was a NonExecutive Director on the Board of

Tata Sons. On 10.08.2006 CPM was appointed as a NonExecutive

Director on the Board.

2.5 By a Resolution of the Board of Directors of Tata Sons

dated 16.03.2012, CPM was appointed as Executive Deputy

Chairman for a period of five years from 01.04.2012 to 31.03.2017,

subject however to the approval of the shareholders at a General

Meeting. The General Meeting gave its approval on 01.08.2012.

2.6 By a Resolution dated 18.12.2012, the Board of Directors

of Tata Sons redesignated CPM as its Executive Chairman with

effect from 29.12.2012, even while designating RNT as Chairman

Emeritus.

2.7 By a Resolution passed on 24.10.2016, the Board of

Directors of Tata Sons replaced CPM with RNT as the interim NonExecutive Chairman. It is relevant to note that CPM was replaced

only from the post of Executive Chairman and it was left to his

choice to continue or not, as NonExecutive Director of Tata Sons.

2.8 As a follow up, certain things happened and by separate

Resolutions passed at the meetings of the shareholders of Tata

Industries Limited, Tata Consultancy Services Limited and Tata

Teleservices Limited, CPM was removed from Directorship of those

companies. CPM then resigned from the Directorship of a few other

operating companies such as the Indian Hotels Company Limited,

Tata Steel Limited, Tata Motors Limited, Tata Chemicals Limited

and Tata Power Company Limited, after coming to know of the

impending resolutions to remove him from Directorship.

2.9 Thereafter, 2 companies by name, Cyrus Investments

Private Limited and Sterling Investment Corporation Private

Limited, belonging to the SP Group, in which CPM holds a

controlling interest, filed a company petition in C.P No.82 of 2016

before the National Company Law Tribunal under Sections 241 and

242 read with 244 of the Companies Act, 2013, on the grounds of

unfair prejudice, oppression and mismanagement.

2.10 But these two companies, hereinafter referred to as ‘the

complainantcompanies’, together had only around 2% of the total

issued share capital of Tata Sons. This is far below the deminimus

qualification prescribed under Section 244(1)(a) to invoke sections

241 and 242. Therefore, the complainant companies filed a

miscellaneous application under the proviso to Subsection (1) of

Section 244 seeking waiver of the requirement of Section 244(1)(a),

which requires atleast one hundred members of the company

having a share capital or onetenth of the total number of fixed

members or any member or members holding not less than onetenth of the issued share capital of the company alone to be entitled

to be the applicant/applicants.

2.11 Along with the application for waiver of the requirement

of Section 244(1)(a), the complainant companies also moved an

application for stay of an Extraordinary General Meeting (“EGM”

for short) of Tata Sons, in which a proposal for removing CPM as a

Director of Tata Sons had been moved. The NCLT refused stay, as a

consequence of which the EGM proceeded as scheduled and CPM

was removed from the Directorship of Tata Sons, by a Resolution

dated 16.02.2017.

2.12 Subsequently, by an Order dated 06.03.2017, NCLT held

the main company petition to be not maintainable at the instance of

persons holding just around 2% of the issued share capital. This

was followed by another order dated 17.4.2017, by which NCLT

dismissed the application for waiver.

2.13 The complainant companies filed appeals before NCLAT

against both the Orders dated 06.03.2017 and 17.04.2017. These

appeals were allowed on 21.09.2017, granting waiver of the

requirement of Section 244(1)(a) and remanding the matter back to

NCLT for disposal on merits. Tata Group did not challenge this

order.

2.14 Thereafter, NCLT heard the company petition on merits

and dismissed the same by an Order dated 09.07.2018.

2.15 Challenging the order of the NCLT, the two complainant

companies filed one appeal. CPM filed another appeal. Both these

appeals were allowed by the Appellate Tribunal by a final Order

dated 18.12.2019 granting the following reliefs:

(i) The proceedings of the sixth meeting of the Board of Directors

of ‘Tata Sons Limited’ held on Monday, 24th October,

2016 so far as it relates to removal and other actions

taken against Mr. Cyrus Pallonji Mistry (11th Respondent) is

declared illegal and is set aside. In the result, Mr. Cyrus

Pallonji Mistry (11th Respondent) is restored to his original

position as Executive Chairman of ‘Tata Sons Limited’ and

consequently as Director of the ‘Tata Companies’ for rest of

the tenure.

As a sequel thereto, the person who has been appointed as

‘Executive Chairman’ in place of Mr. Cyrus Pallonji Mistry

(11th Respondent), his consequential appointment is declared

illegal.

(ii) Mr. Ratan N. Tata (2nd Respondent) and the nominee of the

‘Tata Trusts’ shall desist from taking any decision in advance

which requires majority decision of the Board of Directors or

in the Annual General Meeting.

(iii) In view of ‘prejudicial’ and ‘oppressive’ decision taken during

last few years, the Company, its Board of Directors and

shareholders which has not exercised its power under Article

75 since inception, will not exercise its power under Article 75

against Appellants and other minority member. Such power

can be exercised only in exceptional circumstances and in

the interest of the company, but before exercising such power,

reasons should be recorded in writing and intimated to the

concerned shareholders whose right will be affected.

(iv) The decision of the Registrar of Companies changing the

Company (‘Tata Sons Limited’) from ‘Public Company’ to

‘Private Company’ is declared illegal and set aside. The

Company (‘Tata Sons Limited’) shall be recorded as ‘Public

Company’. The ‘Registrar of Companies’ will make correction

in its record showing the Company (‘Tata Sons Limited’) as

‘Public Company’.”

2.16 After NCLAT disposed of the appeals by its order dated

18122019, the Registrar of Companies moved 2 interlocutory

applications seeking the deletion of certain remarks made by

NCLAT against them. These applications were dismissed by NCLAT

by order dated 06012020. Therefore, as against the final Order of

NCLAT dated 18122019, (i) Tata Sons Private Limited (ii) RNT (iii)

the Trustees of the two Tata Trusts and (iv) three operating

companies of Tata Group have come up with 2 Civil Appeals each

(totalling to 12 appeals) and the complainant companies have come

up with one Civil Appeal. In addition, Tata Sons have also come up

with 2 more appeals against the order dated 06012020 passed by

NCLAT on the applications of the Registrar of Companies.

3. Case set up by the complainants in their petition under

sections 241 and 242, Companies Act, 2013 and Reliefs sought

3.1 In the company petition as it was originally filed by S.P.

Group in December, 2016 before the NCLT, the complainantcompanies claimed that the affairs of Tata Sons, are carried out as

though it was a proprietary concern of RNT and that the oppressive

conduct of the respondents was such that it would be just and

equitable to wind up Tata Sons, but such winding up would

unfairly prejudice the interest of the petitioners and that therefore

the Tribunal should pass such orders so as to bring to an end, the

acts of oppression and mismanagement.

3.2 The acts of oppression and mismanagement complained

against Tata Sons revolved around (i) alleged abuse of the Articles

of Association, particularly Articles 121, 121A, 86, 104B and 118,

to enable the trusts and its nominee Directors to exercise control

over the Board of Directors; (ii) alleged illegal removal of CPM as

Executive Chairman without any notice and an all out attempt to

remove him from the Directorship of all the operating companies of

the Tata group; (iii) alleged dubious transactions in relation to Tata

Teleservices Limited, alongwith one Mr. C. Sivasankaran; (iv) RNT

allegedly treating Tata Sons as a proprietorship concern with all

others acting as puppets, resulting in the Board of Directors failing

the test of fairness and probity (v) acquisition of Corus Group PLC

of UK at an inflated price and then jeopardising the talks for its

merger with Thyssen Krupp (vi) Nano car project becoming a

disaster with losses accumulating year after year and the conflict of

interest that RNT had in the supply of Nano gliders to a company

where he had stakes; (vii) providing corporate guarantee to IL & FS

Trust Company for the loan sanctioned by Standard Chartered

Bank to Sterling (viii) making Kalimati Investments Ltd, a

subsidiary of Tata Steel to provide an inter corporate bridge loan to

Sterling; (ix) the dealings with NTT DoCoMo and Sterling resulting

in an arbitration award for a staggering amount; (x) leaking

information to Siva of Sterling that resulted in Siva issuing legal

notices to Tata Teleservices and Tata Sons (xi) RNT making a

personal gain for himself through the sale of a flat owned by a Tata

group company to Mehli Mistry; (xii) companies controlled by Mehli

Mistry receiving favours due to the personal relationship that RNT

had with him; and (xiii) fraudulent transactions in the deal with Air

Asia which led to financing of terrorism.

3.3 On the foundation of the above, the complainantcompanies contended before NCLT: (i) that the directors of Tata

Sons are not carrying out their fiduciary responsibilities for and on

behalf of the shareholders, but have become mere puppets

controlled by RNT and the Trustees of the two Trusts; (ii) that the

powers contained in the Articles of Association are being exercised

in a malafide manner prejudicial to the interest of the petitioners

and to public interest; (iii) that various operating decisions are

taken either for emotional reasons or for pampering the ego of RNT;

(iv) that attempts are made to shield persons responsible for

fraudulent transactions at Air Asia; (v) that attempts are made to

ensure that no legal action is initiated against Siva who owes Rs.

694 crores; (vi) that Ratan Tata enabled his associates to unjustly

enrich themselves at the cost of Tata Sons; and (vii) that the

present directors of Tata Sons are not promoting the interests of

shareholders of Tata Sons and the interests of the shareholders of

various operating companies of the Tata group.

3.4 In the light of the above pleadings and contentions, the

petitioners before the NCLT sought a set of about 21 reliefs, whose

abridged version is as follows:

“(A) Supersede the existing Board of Directors of Respondent No. 1

and appoint an administrator;

(B) In the alternative to prayer (A) above, appoint a retired

Supreme Court Judge as the nonexecutive Chairman of the

Board of Directors of Respondent No. 1 and appoint such

number of new independent directors;

from attending any meeting of the Board of Directors;

(D) restrain Respondent No. 14 from interfering in the affairs of

Respondent No. 1;

(E) direct Respondent No. 1 not to issue any securities which

results in dilution of the present paidup equity capital;

(F) direct the Respondents not to remove Respondent No. 11 as a

director from the Board of Respondent No. 1;

(G) restrain the Respondents from making any changes to the

Articles of Association of Respondent No. 1;

(H) order an investigation into the role of the Trustees of the Tata

Trusts in the operations of Respondent No. 1 and/or Tata

Group companies and prohibit the Trustees from interfering in

the affairs of Respondent No. 1 and/or Tata Group

companies;

(I) appoint an independent auditor to conduct a forensic audit

into transactions and dealings of Respondent No. 1 with

particular regard to all transactions with C.Sivasankaran and

his business entities and all transactions involving Mr. Mehli

Mistry and his associated entities and such findings of the

audit and investigation should be referred to the Serious

Fraud Investigation Office;

(J) Appoint an inspector (under applicable law) to investigate into

the breach of the SEBI (Prohibition of Insider Trading)

Regulations, 2015 and/or refer the findings of such

investigation to the Serious Fraud Investigation Office of the

Ministry of Corporate Affairs, Government of India.

(K) direct Respondent No.2 to pay Respondent No. 1 the amount

of unjust enrichment that has accrued to Respondent No. 2 on

account of surrender of the subtenancy of the Bakhtawar

flat;

(L) appoint a forensic auditor to reinvestigate the transactions

executed by AirAsia with entities in India and Singapore and

such findings of the audit should be referred by the Hon’ble

Tribunal to the Serious Fraud Investigation Office of the

Ministry of Corporate Affairs, Government of India;

(M) strike of Articles numbered 86, 104(B), 118, 121 and 121A in

their entirety and in so far as Article 124 of the Articles of

Association of Respondent No. 1 is concerned, the following

portion of the said Article, which is offending and/or

repugnant, should be deleted: “… Any committee empowered

to decide on matters which otherwise the Board is authorised

to decide shall have as its member at least one director

appointment pursuant to Article 104B. The Provisions relating

to quorum and the manner in which matters will be decided

contained in Articles 115 and 121 respectively shall apply

mutatis mutandis to the proceedings of the committee. “from

the Articles of Association of Respondent No. 1; and substitute

these articles with such articles as the nature and

circumstances of this case may require;

(N) direct the Respondents (excluding Respondent Nos. 4, 10

&11) to bring back into Respondent No. 1, the funds used by

Respondent No. 1 for acquiring shares of Tata Motors;

(O) restrain Respondent No. 1 from initiating any new line of

business or acquiring any new business;

(P) restrain the trustees of the Trusts from interfering in the

affairs of Respondent No. 1 and in the various companies;

(Q) restrain the existing Selection Committee from acting any

further.

(R) direct that no candidate selected by the Selection Committee

constituted pursuant to Article 118 of the Articles of

Association of Respondent No. 1 to be appointed without leave

of this Hon’ble Tribunal;

(S) direct Respondent No. 1 not to demand and/or procure any

unpublished price sensitive information from any listed

operating companies within the Tata Group;

(T) grant interim and adinterim reliefs in terms of Prayers (A) to

(S) above; and

(U) pass such further orders that this Hon’ble Tribunal may,

deem necessary for bringing an end to the acts of oppression

and mismanagement in the running of Respondent No. 1.”

4. Amendment of pleadings, addition and deletion of reliefs

4.1 The contents of Chapter3 above, are the pleadings made

and the reliefs sought in the company petition, as it was originally

filed on 20.12.2016. But the pleadings and the prayers underwent

certain changes in the course of the proceedings, partly due to

subsequent developments and partly due to change of

strategy/better counsel.

4.2 What is important to note here is that some of the

changes to the pleadings and the reliefs sought, were by way of

proper applications for amendment and some others were just by

way of additional affidavits. We shall advert to them in this part.

4.3 The company petition filed on 20.12.2016 was taken up

on 22.12.2016 and the NCLT passed an order to the following

effect:

“It has also been further agreed by all the parties more

specially by the petitioner counsel, or R11 counsel and

the counsel on behalf of the answering respondents

that they will not file any interim application or initiate

any action or proceedings over this subject matter

pending disposal of this company petition.”

4.4 Soon, the matter got precipitated. Claiming that CPM

sent four boxfiles containing several documents relating to Tata

Education Trust, to the Deputy Commissioner of Income Tax with a

view to create trouble, a special notice was issued for convening the

EGM of Tata Sons on 06.02.2017 for considering the proposal for

the removal of CPM as a Director of Tata Sons.

4.5 Therefore, the complainantcompanies moved a contempt

application. The said application was disposed of by NCLT by an

order dated 18.01.2017, permitting the complainantcompanies and

CPM to file an additional affidavit limiting to the proposal for the

removal of Cyrus Pallonji Mistry from the Board.

4.6 Accordingly, an additional affidavit was filed on

21.01.2017. However, the NCLT, by an order dated 31.01.2017

rejected the prayer of S.P. Group for stay of EGM scheduled to be

held on 06.02.2017.

4.7 S.P. Group filed an appeal against the order refusing the

stay of EGM. The appeal was disposed of on 03.02.2017, merely

permitting the S.P. Group to file a petition for amendment, in the

event of CPM being removed in the EGM. In the EGM held on

06.02.2017, CPM was removed.

4.8 Therefore, the complainantcompanies filed an

amendment application dated 10.02.2017 seeking addition of two

more prayers namely: (i) to direct the respondents to reinstate the

representative of the complainantcompanies on the Board of Tata

Sons; and (ii) to direct the amendment of Articles of Association of

Tata Sons to provide for proportional representation of shareholders

on the Board of Directors of Tata Sons.

4.9 But the petition for contempt, the petition for interim

stay of EGM and the application for amendment to include

additional prayers, all turned out to be exercises in futility, with the

NCLT passing two orders, one on 06.03.2017 and another on

17.04.2017. By the first order dated 06.03.2017, NCLT held the

company petition to be not maintainable, on the ground that the

two complainant companies did not hold at least 10% of the issued

share capital of Tata Sons. By the second order dated 17.04.2017,

NCLT rejected the application for grant of waiver filed under the

proviso to Subsection (1) of Section 244.

4.10 But the aforesaid orders of NCLT dated 06.03.2017 and

17.04.2017 were reversed by NCLAT by an order dated 21.09.2017

and the matter was remanded back to NCLT.

4.11 Thereafter, the complainantcompanies filed one

additional affidavit, one application for amendment, one application

for stay and one memo giving up some of the reliefs already sought.

The facts relating to these, can be compressed into a tabular

column as follows:

Sl.No. What was filed Reliefs sought

1. Additional affidavit dated

31.10.2017

This additional affidavit sought to

challenge the conversion of Tata Sons

from being a Public Limited Company

into a Private Limited Company.

2. Application for amendment

dated 31.10.2017

By this application, the complainants

sought the following prayers:

(M1): Set aside the resolution

passed by the shareholders of

respondent No.1 on September 21,

2017 insofar as it seeks to amend the

Articles of Associations and

Memorandum of Association of

Respondent No.1 for conversion of

Respondent No.1 into a private

company.

(M2): Strike off/Delete Article

75 as the same is a tool in the hands

of the majority shareholders to

oppress the minority; and;

(M3): Pending the final hearing

disposal of the Company Petition, the

effect and operation of the resolution

dated September 21, 2017 be stayed.

(F1): Direct Respondent No.1

and/or Respondent No. 2 to 10 and

12 to 22 to reinstate a representative

of the Petitioners on the Board of

Respondent No.1

(G1): Direct that the Articles of

Association of Respondent No.1 be

amended to provide for proportionate

representation of shareholders on the

Board of Directors of Respondent

No.1

3. Application for stay dated

31.10.2017

Through this application, the

complainants sought Stay of

conversion of Tata Sons into a Private

Limited Company.

4. Memo dated 12.01.2018 By this memo, certain reliefs

originally sought, were given up,

certain reliefs originally prayed for,

were not pressed and one particular

relief was sought to be restricted.

The prayer in the Memo was as

follows:

a. Prayer M, which sought the

striking of Articles 86, 104(B), 118,

121 and 121A, and striking of a

portion of Article 124, is restricted as

under:

i. The necessity of an

affirmative vote of the

majority of directors

nominated by the Trusts,

which are majority of

shareholders, be deleted;

ii. The Petitioners be entitled

to proportionate

representation on Board of

Directors of Respondent

No.1;

iii. The Petitioners be entitled

to representation on all

committees formed by the

Board of Directors of

Respondent No.1; and

iv. The Articles of Association

be amended accordingly.

b. Prayers A, B and C were not

pressed.

c. Prayers F, Q and R, being

infructuous were not pressed.

5. Response of Tata Sons to the allegations made in the

Company Petition

5.1 Tata Sons filed a reply to the company petition

contending interalia : (i) that CPM, who was removed from the post

of Executive Chairman, after having lost the confidence of 7 out of 9

Directors, has sought to use the complainant companies to

besmirch the reputation of Tata Group; (ii) that even the decisions

to which CPM was a party have been questioned in the petition; (iii)

that Tata Group founded in 1868 is a global enterprise,

headquartered in India, comprising over a hundred operating

companies, having presence in more than 100 countries across six

continents, collectively employing over 6,60,000 people; (iv) that the

revenue of Tata Group in 201516, was $103.51 billion; (v) that

there are 29 publicly listed companies in the Tata Group with a

combined market capitalisation of about $116.41 billion; (vi) that

65.3% of the issued ordinary share capital of Tata Sons is held by

philanthropic trusts which support education, health, livelihood

generation and art and culture; (vii) that it was at the instance of

CPM that RNT was designated as Chairman Emeritus and he was

requested to attend Board Meetings as a special and permanent

invitee and continue to guide the Board; (viii) that Articles 104B

and 121 were introduced through a new version of Articles of

Association at the Annual General Meeting of Tata Sons held on

13.09.2000 and Article 121 was subsequently amended by

Resolution dated 09.04.2014; (ix) that Shri Pallonji Shapoorji

Mistry, who represented the complainant companies, was present

at the General meeting held on 13.09.2000; (x) that CPM himself

was a party to the Resolution passed by the shareholders on

09.04.2014, introducing Articles 121A and 121B; (xi) that CPM’s

leadership gave rise to certain issues such as insufficient detail and

discipline on capital allocation decisions, slow execution on

identified problems, lack of specificity and follow through in

strategic plan and business plan, failure to take meaningful steps to

enter new growth businesses, weak top management team and

reluctance to embrace the Articles of Association that spelt out the

governance structure of the company and the rights of Tata Trusts;

(xii) that there was a growing trust deficit between the Board of

Directors of Tata Sons and CPM due to several reasons, such as the

conflict of interest in the matter of award of contracts to S.P. Group

of companies and his systematic and planned reduction of the

representation of Tata Sons Directors on the Boards of other major

Tata Companies; (xiii) that even when the Directors of Tata Sons

resolved on 24.10.2016 to replace CPM as Executive Chairman, the

Board agreed to his continuance as a Director of Tata Sons;

(xiv) that however CPM addressed a vitriolic mail on 25.10.2016 to

the Directors making false allegations; (xv) that though the mail

was marked confidential, it was simultaneously leaked to the press;

(xvi) that CPM also breached his fiduciary and contractual duties

by disclosing confidential information and documents pertaining to

Tata Sons to third parties; (xvii) that CPM made representations to

the shareholders of all operating companies, with unsubstantiated

and false allegations, thereby attempting to make the operating

companies vulnerable to make confidential data available for public

inspection; (xviii) that the shareholders of Tata Industries Limited,

Tata Consultancy Services and Tata Teleservices Limited passed

Resolutions respectively on 12.12.2016, 13.12.2016 and

14.12.2016 to remove CPM from Directorship; (xix) that, therefore,

CPM resigned from the Directorship of the other companies also on

19.12.2016, when he faced the prospect of being removed in the

impending meetings; (xx) that the actions and conduct of CPM after

24.10.2016 compelled Tata Sons to issue a special notice and

requisition for his removal from the Directorship of Tata Sons; (xxi)

that the company petition was not about espousing the cause of

corporate governance or seeking remedies for oppression and

mismanagement of Tata Sons; (xxii) that prior to his removal as

Executive Chairman, CPM never raised any concerns regarding any

oppression or mismanagement; (xxiii) that many of the acts of

oppression complained of by the complainant companies, have

happened long before the date of filing of the company petition,

showing thereby that the company petition was hopelessly barred

by delay and laches.

5.2 On the allegations of oppression and mismanagement,

the response of Tata Sons was as follows: (i) that the complainant

companies have cherry picked certain business decisions to launch

a vitriolic attack on the Tata Trusts; (ii) that while the complainant

companies have talked about bad business deals, such as Corus

acquisition and Nano Project, they have deliberately omitted to talk

about Tetley acquisition by Tata Global Beverages Limited, the

immensely successful Jaguar Land Rover acquisition by Tata

Motors and the phenomenal success of Tata Consultancy Services;

(iii) that Corus acquisition, the Nano Project, contracts awarded to

the business concerns of Mr. Mehli Mistry and the investment by

Mr.C. Sivasankaran have surfaced only after the replacement of Mr.

Cyrus Mistry as the Executive Chairman; (iv) that CPM has been

the Director of Tata Sons since the year 2006 and was also the

Executive Chairman from December, 2012 to October, 2016 and

was fully aware of how the decisions relating to these projects were

taken when they were taken; (v) that courts cannot be called upon

to sit in judgment over the commercial decisions of the Board of

Directors of companies; and (vi) that even commercial misjudgments of the Board of Directors cannot be branded as instances

of oppression and mismanagement.

5.3 On specific acts of oppression and mismanagement,

raised in the company petition, such as (i) over priced and bleeding

acquisition of Corus PLC of UK; (ii) doomed Nano car project;

(iii) loan advanced by Kalimati Investments to Siva; (iv) sale of the

residential flat to Mehli Mistry; (v) unjust enrichment of Mehli

Mistry and the companies controlled by him, due to the personal

equation of RNT with him; (vi) aviation industry misadventures;

and (vii) a huge loss due to purchase of shares of Tata Motors, the

reply filed by Tata Sons contained an elaborate and graphic

rebuttal. We shall take note of them later, while dealing with the

question whether or not the allegations constitute the ingredients of

sections 241 and 242 of the Act.

6. The approach of NCLT

6.1 The NCLT, in its order dated 9.7.2018, went into each of

the allegations of oppression, mismanagement and prejudice and

recorded categorical findings. In brief, these findings, allegationwise, were as follows:

On the allegations revolving around Siva and Sterling group of

companies

(i) Tata Teleservices shares were acquired in the year 2006

with the approval of the Board and hence almost after 10

years, it cannot be raised as an issue. It is also a fact that

the very complainant companies had acquired same TTSL

shares two months before, for Rs.15 per share.

(ii) The loan taken from Kalimati Investments was already paid

back by Siva Group of Companies and the company was

relieved of its undertaking by Siva himself who provided

personal guarantee for the loan taken from Standard

Chartered Bank.

(iii) As to the allegation that Siva made a big profit by selling

shares to NTT DoCoMo @ Rs.117 per share, it is evident

from the record that these shares were sold in the year

2008 to NTT DoCoMo, while NTT DoCoMo was acquiring

shares in bulk from TTSL as well as from some of the

shareholders of TTSL including the brother and father of

CPM and also from Siva. They also equally gained benefit

just as Siva group gained from selling shares of TTSL to NTT

DoCoMo. But this was not disclosed by the complainant

companies either in their petition or in their rejoinder. The

rate at which the petitioners acquired shares of TTSL is less

than the rate at which Siva Group acquired and the gain

that the petitioners made by selling shares to NTT DoCoMo

was more than the gain Siva group got from selling shares

to NTT DoCoMo.

(iv) No material has been placed either by the petitioner or by

CPM to show that any information was leaked to Siva Group

either by RNT or by anyone else.

(v) DoCoMo issue cropped up in 2016, when the award was

passed for payment of Rs.8450 crores. The letter around

which a controversy is raised, was written by RNT in the

year 2013. Hence that letter cannot be linked to DoCoMo

issue to show as if RNT was encouraging Mr. Siva not to pay

money to the company.

On the allegations relating to Air Asia

(i) Air Asia India Pvt. Ltd. is a joint venture between Air Asia

Berhad (Malaysian Company) and Tata Sons, incorporated

on 28.03.2013. The allegations relating to this, are mostly

based on the emails sent by one Mr. Bharat Vasani, who is

not a party to this proceeding and hence these allegations

could not be put to test.

(ii) In the meeting held on 06.12.2012, CPM did not raise any

objection to the approval of the joint venture or for infusing

funds in Air Asia India, until he was removed as Chairman

of the company.

(iii) In their desperate attempt to make a case out of nothing,

the complainant companies claim on the one hand that

CPM had no say in the Air Asia transaction, but on the

other hand, they claim that CPM protected the interest of

the company by limiting its exposure to 30% equity of USD

30 million and by ensuring that no fall back liability came

on the company.

(iv) A person privy to a transaction is estopped from questioning

it, but the complainant companies and CPM have made all

kinds of allegations with impunity flouting all legal

principles. They have proceeded as though they did not take

active part in the Air Asia incorporation and as though CPM

did not preside over the meeting on 15.09.2016 for further

funding it. In addition, they have made a scurrilous

statement, without a shred of paper, that RNT funded one

Terrorist through hawala with diversion of Air Asia India

funds.

On the Transactions with Mehli Mistry, including the sale of the flat

(Bhakthawar) and a land (Alibaug)

(i) There is nothing to indicate that RNT got enriched at the

cost of the company. Forbes Golak was not made a Party

and the transaction happened somewhere in the year 2002,

but the allegation is raised in the year 2016.

(ii) As to these allegations relating to Mehli deriving huge

benefits, the only document that the Petitioners and CPM

filed and relied on, is an email Mr. Mehli addressed to Mr.

Padmanabhan of TPC among others.

(iii) In respect of the 1993 contract for dredging at Trombay, it

was awarded by Tata Power to MpCL for 9 years after

choosing them from amongst three vendors. Thereafter it

was renewed 5 times for various tenures from October 2002

to September, 2014 after obtaining requisite approvals.

When these approvals were given, CPM was a Director of

Tata Power. He held directorship from 1996 to 2006 and

again from 2011 to 2016, but never raised any objection.

Nano car project and the losses suffered by Tata Motors

(i) RNT has not been the director of Tata Motors at any point of

time during which the actions complained of happened.

(ii) Tata Motors and Jayem incorporated a joint venture

company by name J.T. Special Vehicle Pvt. Ltd. with 50:50

shareholdings, in July 2016. This joint venture was

incorporated under the stewardship of CPM himself. It is

therefore entirely incorrect to say that Jayem has benefited

unduly from any patronage extended by RNT.

Acquisition of Corus

(i) The acquisition of Corus was a collective decision of Tata

Steel and it was approved by CPM as a director of the board

of Tata Steel. This entire acquisition was undertaken

following the due governance process under the supervision

of the board of directors of Tata Steel without any dissent

from any of the shareholders of Tata Steel.

(ii) Tata Steel did not buy it for an inflated price, but it so

happened that Tata Steel took a unanimous decision to

quote a price of GBP 608 pence per share while their

competitor CSN’s final bid was GBP 603 pence per share.

CPM or the complainant companies have not placed any

letter or email, seeking divesting or restructuring of Corus.

Private company vs Public company

(i) On the impact of Section 43A (2A) of the Companies Act,

1956 and the issue of the amended certificate of

incorporation to Tata Sons, it has to be seen that Tata Sons

had not altered any of the Articles of Association so as to

bring any new entrenchment to the Articles and that the

management had not done anything so as to cause

prejudice to the rights of the minority shareholders.

On the contention that a few Articles were oppressive or that they

were abused

(i) The contention that Articles 104B, 121, 121A and 75 of the

Articles of Association were per se oppressive and that they

have been used as tools of oppression and mismanagement,

is unacceptable since CPM’s father was party to the

amendments made to the Articles of Association on

13.09.2000. The amendment of Article 118 was passed on

06.12.2012 when CPM was the Executive Deputy

Chairman. CPM was also party to the Resolutions passed

on 09.04.2014, in which the Articles were amended so as to

confer affirmative rights in favour of the Directors of the

Trusts. In so far as Article 75 is concerned, it was in

existence throughout and hence the question whether

persons who acquired shares of such a company

consciously despite the presence of Article 75, can turn

around later and project them as oppressive, looms large.

(ii) The fact that the nominee Directors stepped out of the

meeting of the Board held on 29.06.2016 to take

instructions from RNT on the issue of acquisition of

Welspun by Tata power, cannot be projected as an incident

where Article 121 was abused, since the issue of acquisition

of Welspun should have come up before the Board of Tata

Sons even prior to Tata Power taking a decision, in view of

Article 121A(h). Since Tata Power had already signed the

papers for the acquisition of Welspun on 12.06.2016 itself,

CPM really made the Directors of Tata Sons as fait accompli.

Therefore, it was the action of CPM that was prejudicial to

the interests of Tata Sons and not the other way around.

(iii) None of the Articles have ever been opposed either by the

complainant companies or by CPM at any point of time in

the past. And Article 75 has been in place even before the

complainant companies acquired shares.

Allegation of Breach of fiduciary duties by the Directors

(i) In support of their allegation that there was breach of

fiduciary duties by the Trust nominee Directors and to

prove that the Directors of the Company were guilty of

dereliction of duties in the teeth of Sections 149 and 166 of

the Companies Act, 2013 read with schedule IV (Code for

Independent Directors), the complainant companies had not

placed any material other than the Minutes of the meeting

held on 24.10.2016 (in which CPM was removed from

Chairmanship). Also the removal of CPM as Executive

Chairman was not in deprivation of any of the rights of the

complainant companies as shareholders and his removal

had nothing to do with his association with the complainant

companies. The removal of CPM as Executive Chairman

cannot be projected as oppression of minority shareholders

merely because he also happens to have controlling interest

in companies that hold around 18.40% shareholding in the

company.

(ii) The provision in the Articles of Association entitling the two

Trusts to have 1/3rd of the Directors on the Board of Tata

Sons with an affirmative vote, was actually a curtailment of

their right to appoint majority of the Directors to the Board

and hence it cannot be construed as oppressive of the

minority.

On the removal of CPM

(i) The removal of CPM as Executive Chairman of Tata Sons on

24.10.2016 and his removal as Director on 06.02.2017,

were on account of trust deficit and there was no question

of a Selection Committee going into the issue of his removal.

(ii) There was no material to hold that CPM was removed on

account of purported legacy issues. CPM created a situation

where he is not accountable either to the majority

shareholders or to the Trust nominee Directors and hence

his removal.

(iii) The letter dated 25.10.2016 issued by CPM could not have

been leaked to the media by anyone other than CPM and

hence his removal from Directorship on 06.02.2017 became

inevitable.

6.2 What we have provided in the preceding paragraph, is an

abridged version of the findings recorded by NCLT on every one of

the allegations contained in the main company petition. Apart from

those findings recorded in the body of the judgment, NCLT itself

gave a summary of findings in paragraph 581 of its decision. It is

extracted verbatim as follows:

“a) Removal of Mr. Cyrus Mistry as Executive Chairman on

24.10.2016 is because the Board of Directors and Majority

of Shareholders, i.e., Tata Trusts lost confidence in Mr.

Cyrus as Chairman, not because by contemplating that

Mr. Cyrus would cause discomfort to Mr. Tata, Mr.

Soonawala and other answering Respondents over

purported legacy issues. Board of Directors are competent

to remove Executive Chairman; no selection committee

recommendation is required before removing him as

Executive Chairman.

b) Removal of Mr. Cyrus Mistry from the position of Director

is because he admittedly sent the company information to

Income Tax Authorities; leaked the company information to

Media and openly come out against the Board and the

Trusts, which hardly augurs well for smooth functioning of

the company, and we have not found any merit to believe

that his removal as director falls within the ambit of

section 241 of Companies Act 2013.

c) We have not found any merit to hold that proportional

representation on Board proportionate to the shareholding

of the petitioners is possible so long as Articles do not

have such mandate as envisaged under section 163 of

Companies Act, 2013.

d) We have not found any merit in purported legacy issues,

such as Siva issue, TTSL issue, Nano car issue, Corus

issue, Mr. Mehli issue and Air Asia issue to state that

those issues fall within the ambit of section 247 and 242

of Companies Act 2013.

e) We also have not found any merit to say that the company

filing application under section 14 of Companies Act 2013

asking this Tribunal to make it from Public to Private falls

for consideration under the jurisdiction of section 247 &

242 of Companies Act 2013.

f) We have also found no merit in saying that Mr. Tata & Mr.

Soonawala giving advices and suggestions amounted to

interference in administering the affairs of the company, so

that to consider their conduct as prejudicial to the interest

of the company under section 241 of Companies Act 2013.

g) We have found no merit in the argument that Mr. Tata and

Mr. Soonawala acted as shadow directors superimposing

their wish upon the company so that action to be taken

under section 241 & 242 of Companies Act 2013.

h) We have not found any merit in the argument that Articles

75, 104B, 118, 121 of the Articles of Association per se

oppressive against the petitioners.

i) We have not found any merit in the argument that Majority

Rule has taken back seat by introduction of corporate

governance in Companies Act, 2013, it is like corporate

democracy is genesis, and corporate governance is

species. They are never in conflict with each other; the

management is rather more accountable to the

shareholders under the present regime. Corporate

governance is collective responsibility, not based on

assumed freehand rule which is alien to the concept of

collective responsibility endowed upon the Board.

j) We have observed that prejudice remedy has been

included in 2013 Act in addition to oppressive remedy

already there and also included application of "just and

equitable" ground as precondition to pass any relief in

mismanagement issues, which was not the case under old

Act.”

7. The Approach of NCLAT

7.1 While NCLT dealt with every one of the allegations

contained in the main company petition and recorded its findings,

NCLAT, curiously, focused attention only on (i) the removal of CPM

(ii) the affirmative voting rights of the Directors nominated by the 2

Trusts in the decision making process and (iii) the amended

certificate of incorporation issued by the RoC, deleting the word

“Public” and making it a private company once again.

7.2 The findings recorded by NCLAT are presented, to a great

extent, in the language of NCLAT itself, as follows:

(i) The word ‘unfairly prejudicial’ has not been used in Section

241. The Indian Law (Sections 241 & 242 of the Companies

Act, 2013) does not recognize the term ‘legitimate

expectation’ to hold any act prejudicial or oppressive.

(paragraphs 101 and 102 of the impugned order)

(ii) In the general meeting of the shareholders of ‘Tata Sons

Limited’ or the Board of Directors, the majority decision is

fully dependent upon the affirmative votes of nominated

Directors of ‘Tata Trusts’. The affirmative vote of the

Directors nominated by ‘Tata Trusts’ has an overriding

effect and renders the majority decision subservient to it.

(paragraph 115 of the impugned order)

(iii) The Tribunal/Appellate Tribunal has no jurisdiction to hold

any of the Articles as illegal or arbitrary, the terms and

conditions being agreed upon by the shareholders. However,

if any action is taken even in accordance with law which is

‘prejudicial’ or ‘oppressive’ to any member or members or

‘prejudicial’ to the Company or ‘prejudicial’ to the public

interest, the Tribunal can notice whether the facts would

justify the winding up of the Company and in such case, if

the Tribunal holds that it would unfairly prejudice member

or members or public interest or interest of the Company, it

may pass appropriate orders in terms of Section 242.

(paragraph 119 of the impugned order)

(iv) The email correspondence dated 18.07.2013, 28.02.2014,

11.03.2015, 28.05.2015, 03.11.2015 etc. would show that

CPM was unaware and not in a position to understand how

decisions are taken by the Tata Trusts before the decision of

the Board of Directors of Tata Sons and that CPM felt the

need for development of a governance framework.

(paragraph 126 of the impugned order)

(v) Emails dated 13th March, 2016; 30th April, 2016 and 10th

May, 2016 between CPM and Mr. Nitin Nohria show that

CPM formulated a governance framework after obtaining the

feedback from Mr. Nitin Nohria to clarify the role of the

Trustees of ‘Tata Trusts’ in the decision making process of

‘Tata Sons Limited’. It was followed by email dated 15th

May, 2016 sent by CPM to RNT forwarding a draft of the

governance framework. (paragraph 127 of the impugned

order)

(vi) The communications between the Respondents from 2013

to 2016 show that there was complete confusion in the

Board about the governance framework of the Company

(‘Tata Sons Ltd.’) as before deciding any matter or for taking

any resolution by the Board, decision used to be taken by

RNT for ‘Tata Trusts’, in which Mr. Nitin Nohria and Mr.

N.A. Soonawala, were taking active part. (paragraph 129 of

the impugned order)

(vii) Prior to the Board’s meeting held on 24th October, 2016

before removing CPM, on the same date decision had

already been taken by RNT in presence of Mr. Nitin Nohria

to remove CPM, who asked him to step down from the post

of the ‘Executive Chairman’ of the Company (‘Tata Sons

Limited’). (paragraph 130 of the impugned order)

(viii) RNT was determined to remove CPM even prior to the

meeting of the board and the majority shareholders of Tata

Trust knew that there was a requirement of advance notice

before the removal of CPM. Therefore, they had taken

opinion from eminent lawyers and a former Judge of the

Supreme Court. (paragraph 133 of the impugned order)

(ix) There is nothing on the record to suggest that the Board of

Directors or any of the trusts, namely— Sir Dorabji Tata

Trust or the Sir Ratan Tata Trust at any time expressed

displeasure about the performance of CPM. (paragraph 134

of the impugned order)

(x) From the opening sentence of ‘Press Statement’ dated 10th

November, 2016, issued by Tata Sons it is clear that sudden

and hasty removal of CPM as Executive Chairman of ‘Tata

Sons Limited’ raised concerns in the industrial group.

(paragraph 137 of the impugned order)

(xi) The allegations as made in the ‘Press Statement’ dated 10th

November, 2016 appears to be an afterthought as the

aforesaid matter was not discussed in any of the meetings

of the Board of Directors. The allegations in the ‘Press

Statement’ as not supported by record cannot be accepted.

(paragraph 139 of the impugned order)

(xii) Correspondence between CPM, RNT, Mr. Nitin Nohria and

Mr. N.A. Soonawala show that all the time CPM had been

pointing out that some of the ‘Tata Companies’ were

suffering losses and if appropriate steps were not taken, it

may aggravate in future. In spite of such communications

no decision for the revival or restructuring of Tata

Companies was taken. (paragraph 140 of the impugned

order)

(xiii) If there was a failure and loss caused to one or other Tata

Company which also affected the ‘Tata Sons Limited’, the

‘Tata Trusts’ or the Board of Directors could not be absolved

of its responsibility, particularly when the nominee

Directors of the Tata Trusts who have affirmative vote to

reverse the majority decision. (paragraph 141 of the

impugned order)

(xiv) If all major decisions are taken in advance by the ‘Tata

Trusts’ and for taking every decision, matters are to be

placed before the ‘Tata Trusts’, the independence of the

Board of Directors of the Company becomes irrelevant.

(paragraph 143 of the impugned order)

(xv) The suggestions made by CPM for good governance by the

Board and to take care of Tata Companies, including ‘Tata

Motors’, ‘Docomo’ etc., were not taken in its letter and spirit

by RNT or ‘Tata Trusts’ which resulted in no confidence on

CPM. (paragraph 144 of the impugned order)

(xvi) The record suggests that the removal of CPM had nothing to

do with any lack of performance. On the other hand, the

material on record shows that the Company under the

leadership of CPM performed well which was praised by the

‘Nomination and Remuneration Committee’ a Statutory

Committee under Section 178, on 28th June, 2016 i.e. just

few months before he was removed. (paragraph 146 of the

impugned order)

(xvii) Nominee Director Mr. Vijay Singh on behalf of ‘Tata Trusts’

was well aware that performance of CPM was satisfactory

and there was need for a framework for operationalizing the

Articles. (paragraph 149 of the impugned order)

(xviii) The annual performance review of the ‘Nomination and

Remuneration Committee’ was unanimously approved by

the Board of Directors of ‘Tata Sons’ in its meeting held on

the next day i.e. on 29th June, 2016. (paragraph 150 of the

impugned order)

(xix) Three Directors who also voted for removal of CPM,

including Mr. Amit Chandra, who spearheaded the removal

proceedings and Mr. Ajay Piramal and Mr. Venu Srinivasan,

had been inducted into the Board of ‘Tata Sons Ltd.’ only on

8th August, 2016 i.e. after the appraisal report of

‘Nomination and Remuneration Committee’. They attended

just one Board meeting prior to the meeting held on 24th

October, 2016. (paragraph 151 of the impugned order)

(xx) Two of the Directors, Mr. Ranendra Sen and Mr. Vijay

Singh, a Trust Nominee Director, who voted for the removal

of CPM, were members of the ‘Nomination and

Remuneration Committee’ which just four months’ prior to

his removal on 28th June, 2016 praised the performance of

CPM as Executive Chairman. These two Directors also voted

against CPM just four months thereafter which has not

been explained by Mr. Ranendra Sen and Mr. Vijay Singh.

Further, what is accepted is that prior to the meeting held

on 24th October, 2016 between 2.00 p.m. to 3.00 p.m., in

the forenoon, the ‘Tata Trusts’ in a separate meeting

decided to remove CPM. Even before decision of ‘Tata

Trusts’, RNT in presence of Mr. Nitin Nohria called CPM and

asked him to resign. (paragraph 152 of the impugned order)

(xxi) In view of what transpired, it is not open to the

Respondents to state or allege that loss in different ‘Tata

Companies’ was due to mismanagement of CPM. If that be

so, why the nominated Directors who have affirmative

voting right over the majority decision of the Board or in the

Annual General Meeting of the shareholders allowed the

‘Tata Companies’ to function in a manner which caused

loss, as accepted in the press release dated 10th November,

2016. The consecutive chain of events coming to fore from

the correspondence amply demonstrates that impairment of

confidence with reference to conduct of affairs of company

was not attributable to probity qua CPM but to unfair abuse

of powers on the part of other Respondents. (paragraph 155

of the impugned order)

(xxii) Even in the absence of a right of minority members

(‘Shapoorji Pallonji Group’), because of the healthy

atmosphere and clear understanding between two groups

i.e. ‘Tata Group’ and ‘Shapoorji Pallonji Group’ for the last

40 years, except for few years in between thereof, one of the

persons of ‘Shapoorji Pallonji Group’ was made as the

Executive Chairman or Director, which includes CPM and

his father Mr. Pallonji Shapoorji Mistry. (paragraph 160 of

the impugned order)

(xxiii) ‘Shapoorji Pallonji Group’, minority shareholders, all the

time had confidence on the decision making power of the

Board of Directors of the ‘Tata Sons Ltd.’ as amity and

goodwill prevailed inter se the two groups. (paragraph 161

of the impugned order)

(xxiv) Because of recent actions of ‘Tata Trusts’, its nominee

Directors, and RNT and Mr. Nitin Nohria, taken since the

year 2013, as noticed and discussed and sudden and hasty

removal of CPM on 24th October, 2016, without any basis,

and without following the normal procedure under Article

118, the minority group (‘Shapoorji Pallonji Group’) (the

Appellants), and others have raised no confidence and

sense of uncertainty. (paragraph 162 of impugned order)

(xxv) The prejudicial action, did not come to an end, after 24th

October, 2016, when CPM was removed as Executive

Chairman and Director of the Company (‘Tata Sons

Limited’). It continued even thereafter with the removal of

CPM from the Directorship of other group companies and

the conversion of Tata Sons Limited from being a public

limited company into a private company, after the decision

of NCLT. (paragraph 165 of the impugned order)

(xxvi)Tata Sons Limited became a public company by virtue of

Section 43(1A) of the Companies Act, 1956 on the basis of

average annual turnover, w.e.f. 01.02.1975. (para 165) In

terms of Subsection (2) of Section 43A Tata Sons informed

the Registrar and the Registrar deleted the word “private” in

the name of the Company upon the Register. By virtue of

Subsection (4), such a company is to continue to be a

public company until it becomes a private company with

the approval of the Central Government and in accordance

with the Act. (para 167) The Companies Act, 2013 repealed

part of the 1956 Act. The new Act defines a “Private

Company” and a “Public Company” under Clauses (68) and

(71) of Section 2. (para 169 to 172). Under the 2013 Act,

there is no provision similar to Section 43A(1A), for

automatic conversion of a company. Since there is no

automatic conversion, Tata Sons, having become a public

company long ago was required to alter its articles of

Association by following the procedure prescribed by

Section 14(1)(b) read with Section 14(2) and 14(3), for

converting the company as a private company.( paras 173

to 175). The General Circular No.15 of 2013 dated

13.09.2013 and Notification dated 12.09.2013 issued by the

central Government cannot override Section 14 of the Act

(para 177) and hence the action taken by Tata Sons

hurriedly to get the word “public” struck off in the certificate

of incorporation, after the order of NCLT is absolutely

illegal.

(xxvii) The aforesaid action on the part of the company and its

Board of Directors to take action to hurriedly change the

Company (‘Tata sons Limited’) from ‘Public Company’ to a

‘Private Company’ without following the procedure under

law (Section 14), with the help of the Registrar of

Companies just before the filing the appeal, suggests that

the nominated members of ‘Tata Trusts’ who have

affirmative voting right over the majority decision of the

Board of Directors and other Directors/members, acted in a

manner ‘prejudicial’ to the members, including minority

members (‘Shapoorji Pallonji Group’) and others as also

‘prejudicial’ to the Company (‘Tata Sons Limited’)

(paragraph 181 of the impugned order)

(xxviii) The affirmative voting power of the nominated Directors

of the ‘Tata Trust’ over majority decision of the Board;

actions taken by Mr. Rata N. Tata (2nd Respondent), Mr.

Nitin Nohria (7th Respondent) and Mr. N.A. Soonawala (14th

Respondent) and others as discussed above; the fact that

the Company (‘Tata Sons Limited’) has suffered loss

because of ‘prejudicial’ decisions taken by Board of

Directors; the fact that a number of ‘Tata Companies have

incurred loss in spite of decision making powers vested with

the Board of Directors with affirmative power of nominated

Directors of the ‘Tata Trust’; the manner in which Mr. Cyrus

Pallonji Mistry (11th Respondent) was suddenly and hastily

removed without any reason and in absence of any

discussion in the meeting of the Board of Directors held on

24th October, 2016 and his subsequent removal as Director

of different ‘Tata Companies’ coupled with global effect of

such removal, as accepted by the Company in its ‘Press

Statement’ form a consecutive chain of events with

cumulative effect justifying the Tribunal to hold that the

Appellants have made out a clear case of ‘prejudicial’ and

‘oppressive’ action by the contesting respondents, including

Mr. Ratan N. Tata (2nd Respondent), Mr. Nitin Nohria (7th

Respondent) and Mr. N.A. Soonawala (14th Respondent) and

other nominee Directors. (paragraph 183 of the impugned

order)

(xxix) The company’s affairs have been or are being conducted

in a manner ‘prejudicial’ and ‘oppressive’ to members

including Appellants, Mr. Cyrus Pallonji Mistry (11th

Respondent) as also ‘prejudicial’ to the interests of the

Company and its group Companies i.e., ‘Tata Companies’

and winding up of the Company would unfairly prejudice

the members, but otherwise the facts, as narrated above,

would justify a winding up order on the ground that it was

just and equitable that the Company should be wound up

and thereby, it is a fit case to pass order under Section 242

of the Companies Act, 2013.

(xxx) The Resolution dated 24th October, 2016 passed by the

Board of Directors of Company removing Mr. Cyrus Pallonji

Mistry (11th Respondent) as the Executive Chairman of the

Company (‘Tata Sons’) is illegal; all consequential decisions

taken by ‘Tata Companies’ for removal of Mr. Cyrus Pallonji

Mistry (11th Respondent) as Director of such Companies are

also illegal. (paragraph 184 of the impugned order)

(xxxi) For better protection of interest of all stake holders as

also safeguarding the interest of minority group, in future at

the time of appointment of the Executive Chairman,

Independent Director and Directors, the ‘Tata Group’ which

is the majority group should consult the minority group i.e.,

‘Shapoorji Pallonji Group’ and any person on whom both

the parties have trust, be appointed as Executive Chairman

or Director as the case may be which will be in the interest

of the Company and create healthy atmosphere removing

the mistrust between the two groups, already developed and

has caused global effect as admitted in the ‘Press

Statement’ of the Company. (paragraph 185 of the

impugned order)

8. Important difference between the approach of NCLT and the

approach of NCLAT

8.1 As pointed out at the beginning of chapter 7, NCLT dealt

with every one of the allegations of oppression and mismanagement

and recorded reasoned findings. But NCLAT, despite being a final

court of facts, did not deal with the allegations one by one nor did

the NCLAT render any opinion on the correctness or otherwise of

the findings recorded by NCLT. Instead, the NCLAT summarised in

one paragraph, namely paragraph 183, its conclusion on some of

the allegations, without any kind of reasoning. This Paragraph 183

reads as follows:

“The facts, as noticed above, including the affirmative voting

power of the nominated Directors of the ‘Tata Trusts’ over

majority decision of the Board; actions taken by Mr. Ratan N.

Tata (2nd Respondent), Mr. Nitin Nohria (7th Respondent) and Mr.

N.A.Soonawala (14th Respondent) and others as discussed

above; the fact that the Company (‘Tata Sons Limited’) has

suffered loss because of ‘prejudicial’ decisions taken by Board of

Directors; the fact that a number of ‘Tata Companies’ have

incurred loss; in spite of decision making power vested with the

Board of Directors with affirmative power of nominated Directors

of the ‘Tata Trusts’; the action in making change from ‘Public

Company’ to ‘Private Company’; the manner in which Mr. Cyrus

Pallonji Mistry (11th Respondent) was suddenly and hastily

removed without any reason and in absence of any discussion in

the meeting shown in the Board of Directors held on 24th October,

2016 and his subsequent removal as Director(s) of different ‘Tata

Companies’, coupled with global effect of such removal, as

accepted by the Company in its ‘Press Statement’ form a

consecutive chain of events with cumulative effect justifying us to

hold that the Appellants have made out a clear case of

‘prejudicial’ and ‘oppressive’ action by contesting Respondents,

including Mr. Ratan N. Tata (2nd Respondent), Mr. Nitin Nohria

(7th Respondent) and Mr. N.A.Soonawala (14th Respondent) and

other, the nominee Directors.

8.2 The allegations relating to (i) over priced and bleeding

Corus acquisition (ii) doomed Nano car project (iii) undue favours to

Siva and Sterling (iv) loan by Kalimati to Siva (v) sale of flat to Mehli

Mistry (vi) the unjust enrichment of the companies controlled by

Mehli Mistry (vii) the Aviation industry misadventures (viii) losses

due to purchase of the shares of Tata Motors etc., were not

individually dealt with by NCLAT, though NCLT had addressed each

one of these issues and recorded findings in favour of Tata Sons.

Therefore, there is no escape from the conclusion that NCLAT

did not expressly overturn the findings of facts recorded by

NCLT, on these allegations. We are constrained to take note of

this, even at the outset, in view of a contention raised by Shri

Shyam Divan, learned Senior Counsel for the SP group, that in an

appeal under Section 423 of the Companies Act, 2013, this court

will not normally interfere with a finding of fact reached by NCLAT,

unless it is found to be wholly perverse.

9. Contentions on behalf of Tata Sons, group companies and

Trustees

9.1 Assailing the judgment of NCLAT, Shri Harish Salve and

Dr. Abhishek Manu Singhvi, learned Senior counsel for Tata Sons

contended as follows:

(i) The entire focus of NCLAT was only on the justification for the

removal of CPM from the post of Executive Chairman of Tata

Sons, despite the fact that the positive case of the complainant

companies as well as CPM was that they were not seeking the

reinstatement of CPM;

(ii) In focusing entirely upon the removal of CPM from Executive

Chairmanship of Tata Sons, NCLAT lost track of the law that

such a removal cannot be termed as oppression or

mismanagement;

(iii) NCLAT went completely overboard by directing the

reinstatement of CPM as the Executive Chairman of Tata Sons

and also annulling the appointment of the new Chairman N.

Chandrasekaran;

(iv) NCLAT went completely out of the way in directing the

reinstatement of CPM as a Director of even the operating

companies, the management of affairs of which, were not even

the subject matter. The subject matter concerned only the

management of the affairs of Tata Sons and not its Group

Companies;

(v) NCLAT failed to see that the “just and equitable clause” is

triggered only in two situations namely: (a) wherever there was

a functional deadlock; and (b) wherever there was a corporate

quasi partnership in which there was a breakdown of trust

and confidence. In the case on hand there was no preexisting

partnership between Tata Group and the S.P. Group. S.P.

Group became shareholders only after 48 years of the

incorporation of Tata Sons and they did not even hold any

directorial position until June1980. Therefore S.P. Group

never had any right of management nor a right that could

emanate from a preexisting relationship of trust and

confidence, before the incorporation of the company;

(vi) Tata sons was not a “Two Group” company with one of them

being a majority and the other, a minority. S.P. Group became

shareholders long after the incorporation of the company and

they did not acquire any privilege, prerogative or right. S.P.

Group became shareholders, accepting the rights and

obligations inter se among shareholders, as spelt out by the

Articles of Association. S.P. Group also accepted without any

demur, all the amendments made to the Articles of

Association, when Pallonji Mistry was on the Board and also

when CPM was on the Board;

(vii) The removal of CPM was on account of the loss of confidence in

CPM and the complete breakdown of trust between the other

members of the Board and CPM. To say that his removal

required the stamp of approval of the Selection Committee, is

completely amiss;

(viii) NCLAT failed to appreciate in the right perspective, the effects

of the Amendment Act 53 of 2000 on a ‘deemed to be a public

company’ under Section 43A and the provisions of the 2013

Act, while dealing with the question whether Tata Sons would

be a private Company or a public Company. NCLAT, without

any justification, made uncharitable remarks against the

Registrar of Companies for issuing an amended certificate of

incorporation after the judgment of NCLT, though RoC was not

a party. When RoC sought the expunction of those remarks by

filing an application, NCLAT entertained the same, only for the

purpose of improving upon the reasons already provided,

showing thereby the mindset with which NCLAT approached

the case;

(ix) NCLAT committed a serious error in whittling down Article 75

of the Articles of Association, though the said Article was not

found to be illegal;

(x) Curiously NCLAT did not find any actual misuse of the Articles

of Association, which envisaged a crucial role for the nominee

Directors of the two Trusts. CPM himself had proposed a

Governance framework which recognised preconsultation

with the Trusts. Therefore, the findings of NCLAT as though

the preconsultation as well as the affirmative voting right

conferred upon the Directors nominated by the Trust,

undermined the role of the Board of Directors of Tata Sons,

are completely perverse;

(xi) The direction issued by NCLAT to the majority (Tata Group) to

consult the S.P. Group, for all future appointments of

Executive Chairman or Director, is wholly unsustainable in

law. This direction tantamount to striking down Articles 104B

and 118, even though the challenge to these Articles had

already been given up.

10. Contentions on behalf of S.P. Group:

10.1 Shri C. Aryama Sundaram, learned Senior counsel,

appearing on behalf of the S.P. Group raised the following

contentions, both in defense of that portion of the judgment of

NCLAT which had gone in their favour and also for attacking NCLAT

for not going further:

(i) Tata Sons could very well be treated as a two group company

where the relationship between the groups was in the nature

of a quasi partnership, which created equitable obligations.

The relationship between the family of CPM and the Tata

family, spans over seven decades and was one of trust and

mutual confidence. S.P. Group had acted as the guardian of

Tata Group’s interest when the Trust had no affirmative voting

rights;

(ii) The existence of a quasi partnership can be presumed

whenever it is found (a) that an Association was formed or

continued on the basis of a relationship involving mutual trust

and confidence; (b) that there was an understanding that some

of the members would participate in the management of the

company; or (c) that there was a restriction upon the transfer

of the member’s interest in the company. One or more of these

elements were found to exist in the relationship between Tata

Group and S.P. Group and hence it was in the nature of quasi

partnership;

(iii) The Trustees misused the Articles of Association to undermine

the Board of Directors of Tata Sons and also caused erosion of

their ability to exercise independent judgment and to act in

the interest of the Company. RNT as well as Soonawala

demanded preconsultation and prior clearance of the agenda

items to be placed before the Board. There were instances (a)

when the TrustNominee Directors objected to matters being

placed before the Board without the approval of the Trust, (b)

when RNT edited the minutes of the Board meetings that he

did not attend, (c) when RNT questioned certain operational

and business decisions of Tata Motors, (d) when the Trustees

overruled the views of the Tata Group legal counsel in the

DoCoMo disputes and (e) when the Trustees interfered in

business decisions such as Welspun acquisition and rights

issue of Tata Motors;

(iv) Tata sons was a public company in form and conduct, as they

accepted public deposits even after 13.12.2000 till September2002 and hence the conversion of the company into a private

company by a hand written order of the ROC, effected at night

just before NCLAT was to hear the appeals, was completely

shocking. The conversion of the company into a private

company was aimed at avoiding a higher standard of scrutiny

statutorily required for public companies. The conversion also

adversely affected the ability of Tata Sons to raise funds,

thereby increasing borrowing costs. Due to this conversion,

Tata Sons became obliged to refund money to insurance

companies which held substantial investments in the

instruments issued by the company. Therefore the conversion

of the company into a private company lacked probity and

prejudiced the proprietary rights of minority shareholders;

(v) The removal of CPM was contrary to the provisions of Article

118, which required the setting up of a Selection Committee

both for appointment as well as removal. In fact Article 121B

contemplates a 15 days’ notice, but the same was also not

complied. Therefore, the removal of CPM, carried out without

there being any agenda for the same and without there being

any deliberation or discussion, was wholly illegal. The manner

in which three Directors were inducted into the Board without

being vetted by the Nomination and Remuneration Committee

and the manner in which the resolution for removal was

passed would show that it was preplanned. It was quite

strange that CPM’s performance came to be appreciated by the

Nomination and Remuneration Committee in June2016 and

this Committee had two members, who later became parties to

the resolution removing him from Executive Chairmanship;

(vi) The removal of CPM from the Directorship of Tata Sons as well

as the Directorship of the other Group Companies showed

complete lack of probity, since veiled threats were sent to the

Board of Directors of the other group companies for the

withdrawal of the Tata brand, if they failed to fall in line.

10.2 Carrying the baton from Shri Aryama Sundaram, it was

contended by Shri Shyam Divan, learned Senior counsel, as follows:

(i) With the coming into force of the Companies Act, 2013, law

has moved from ‘corporate majority’ or ‘Corporate

democracy’ to ‘corporate governance’, which includes the

principles of fairness. This is seen from sections 135, 148,

151, 166 and 177.

(ii) Law now enjoins companies to be operated and managed

within a statutory framework i.e. by a Board of Directors

and no one else, as per s.149 of the 2013 Act.

(iii) Directors of companies have a fiduciary role visàvis the

company with the highest level of duty, which cannot be

outsourced or delegated and their allegiance should only be

to the company alone.

(iv) Once a director is appointed, his duty is only to the

company and none else, irrespective of how he is appointed.

(v) There was a series of acts of oppression, including the

breach of Articles, misuse of Articles and also a violation of

the essential understanding between the two groups. This

was found by the NCLAT.

(vi) There was a clear lack of probity and honesty in the

dealings of the majority. The concept of probity is much

broader and wider than integrity.

(vii) There was a long good faith relationship between the Tata

group and SP group, developed over several decades and

this has to be viewed in the context of a specific statutory

framework that existed from 1964 upto 2000.

(viii) In matters of this nature, the Court is obliged, in its

equitable jurisdiction, to take note of the status of the

company in question, which is at the top (apex) of the

pyramid, with several stakeholders including the minority

shareholders of the company itself, the employees and

shareholders of the operating companies controlled by the

company etc.

(ix) NCLAT has recorded detailed findings on facts and there is

no perversity in those findings. Therefore there is actually

no scope for interference by this court.

(x) The reliefs sought in the company petition, are consistent

with the provisions of the Companies Act, 2013 including

Section 163 (proportionate representation) and subSections (1), (5), (7) and (8) of Section 242 of the Act.

10.3 Mr. Janak Dwarakadas, learned counsel appearing on

behalf of CPM, the original composer of this musical ensemble,

raised the following contentions:

(i) Lack of financial probity is not the only ground on which

the ‘just and equitable’ clause for winding up can be

invoked. Infraction of a legal and/or proprietary right is also

a ground for invoking it.

(ii) Proprietary right includes the right to be governed in

accordance with the Articles of Association and the

provisions of the Act. Independence and autonomy of Board

is guaranteed by law. Interference by majority shareholders

that encroaches upon the Board’s autonomy and

independence, is an infraction upon the proprietary rights

of minority shareholders.

(iii) Art. 104B, 121 and 121A have been misinterpreted,

misconstrued and misapplied to mean that majority

shareholders have a right to seek preconsultation or preclearance before matters can be placed before the Board of

Tata Sons or Tata Operating Companies. The right to

nominate 1/3rd directors by Tata Trusts (A.104B), the

requirement of affirmative vote of a majority of nominee

directors (A.121) and Article 121A, do not alter the fact that

nominee directors have a fiduciary duty in exercising these

powers to act in the interests of the company alone. Article

122(b) provided that Tata Sons shall be boardmanaged.

But the true legal scope and meaning of these Articles were

never understood.

(iv) The role and duties of nominee Directors should have been

well defined and kept within the confines of law.

(v) The Nomination and remuneration Committee, in its

meeting held on June 28, 2016, expressed the need for

clarity on the functioning of the Board of Tata Sons in

relation to Tata Trusts as well as its role visavis the group

companies.

(vi) NCLAT has recorded a finding that 3 attempts were made

by CPM to place before the Board of Tata Sons, a

governance structure and that this became the principal

cause for his removal. This finding of fact cannot be set at

naught by this court.

11 Contentions on behalf of the Tata Trusts

Assailing the judgment of NCLAT, Shri Mohan Parasaran,

learned Senior counsel appearing for the Trusts, contended as

follows:

(i) Impugned judgment did not deal with the detailed findings

of fact rendered by NCLT, nor the arguments advanced on

behalf of the Trustees of the Tata Trust.

(ii) Impugned judgment employed erroneous tests to determine

oppression under section 241 of the 2013 Act

(iii) Mere unwise or loss making business decisions etc. cannot

be construed as acts of mismanagement so as to justify

winding up on just and equitable grounds. For holding the

majority guilty (a) there must be a sequential chain of

events leading up to the date of filing the petition; (b) the

conduct must be burdensome, harsh and wrongful qua the

minority; and (c) there must be an element of lack of probity

depriving the proprietary rights of the SP group as

shareholders.

(iv) This is not a case of quasipartnership

(v) Impugned judgment is replete with erroneous findings of

fact that influenced the conclusions drawn and reliefs

granted

(vi) Impugned judgment misattributes the replacement of CPM

to RNT and grants reliefs that were not prayed for.

(vii) Though the TrustNominee Director introduced the

resolution for CPM’s removal, it was ultimately the majority

of the Board that voted in favor of the resolution.

(viii) Impugned judgment goes against the fundamentals of

corporate democracy by taking away basic rights of

shareholders

(ix) By directing that all future appointments to directorial

positions in Tata Sons can be made only through mutual

“consultation” with the SP Group and that only a person

“on whom both the groups have trust” can be appointed,

NCLAT has undermined the role of majority. This could

create a stalemate and an impasse by giving minority

shareholders a veto power.

(x) This direction also renders mute, the right of the Tata

Trusts to nominate directors under Art.104B even though

its validity was not under challenge before NCLAT.

(xi) Impugned judgment’s interpretation of affirmative voting

rights u/ Art 121 is conceptually and legally wrong.

(xii) NCLAT took the affirmative right to mean unilateral power

to implement decisions (referencing para 155 of the

judgment).

12. Contentions of Tata Consultancy Services (TCS)

Attacking one portion of the judgment of NCLAT which issued

a direction to TCS to reinstate CPM as a Director, Ms. Fereshte D.

Sethna, learned counsel appearing for TCS argued as follows:

(i) NCLAT lacked jurisdiction to direct CPM’s reinstatement, as

TCS was not party to the original proceedings or appellate

proceedings. Neither the SP Group, nor CPM had prayed for

reinstatement of CPM to the board of directors of TCS

(ii) Due process was followed in the removal of CPM from the

board of TCS. CPM was granted opportunity to make a

representation against the proposed resolution for his

removal in compliance with section 169 of the Companies

Act. Unanimous approval was granted by the board of

directors of TCS at their meeting dated 17.11.2016 for

convening an EGM for removal of CPM from the board of

directors. Circulation of representation against his proposed

removal on 05.12.2016 was made by CPM to members.

Requisite majority of shareholders (93.11%) passed

resolution at EGM dated 13.12.2016, for the removal of

CPM. 57.46% of public institutional shareholders were in

favor of the resolution for his removal. Further, 71.88% of

public shareholders were in favor of resolution for his

removal.

(iii) Action against TCS not maintainable by the SP Group as

they did not meet the requisite threshold under section 244

of the Companies Act, 2013. The SP Group held only 0.24%

in direct equity interests in TCS which stood at 0.55% on

13.12.2016, and has since been diluted to 0.05% on

18.12.2019 – the date of the impugned order.

(iv) There was no allegation of oppression and mismanagement

made out against TCS.

(v) TCS was denied the opportunity of hearing which was

contrary to the principles of natural justice.

(vi) NCLAT lacked jurisdiction to grant reinstatement as CPM’s

tenure of office came to an end on 16.06.2017.

13. Contentions of others

13.1 Shri Tushar Mehta, learned Solicitor General, appearing

on behalf of the Registrar of Companies, made submissions to the

limited extent of justifying the action of the RoC in issuing an

amended certificate of incorporation. According to him, the Articles

of Association of Tata Sons contained provisions which come within

the parameters of the definition of a ‘private company’ under section

2(68) of the Act. The amendment merely recognized a preexisting

reality and the RoC followed the extant provisions of the Act. But

unfortunately, the NCLAT passed remarks, though it claimed it did

not, without even hearing the RoC beforehand.

13.2 Shri Zal Andhyarjuna, learned counsel appearing for Shri

Noshir A. Soonawala, submitted that Soonawala has never been

accused of wrongdoing in his 44 years of association with the Tata

Group and even during CPM’s tenure as Director. He has not

attended a single meeting of the Board of Directors of Tata Sons

since his retirement. He was requested to act as advisor to Tata

Sons which received unanimous approval of the Board in 2010.

CPM would therefore, approach him from time to time for advice on

financial matters of Tata Sons. Soonawala has, on his own

initiative, sent only two notes to CPM and RNT which were purely

advisory in nature and cannot be construed as being “directions” or

“instructions” from him. The Note dated 04.12.2015 was an

analysis of Tata Sons’ past financial results pointing out areas of

concern and the Memo dated 09.07.2015 concerned Tata Tele

Services Limited, an unlisted company having financial problems.

Therefore, he argued that NCLAT was wrong in attributing to him,

interference with the affairs of Tata Sons.

14. Questions of law arising for consideration

14.1 Though the learned counsel for the parties have raised

innumerable contentions touching upon every aspect, micro or

macro, and which we have faithfully recorded in paragraphs 9 to 13

above, the jurisdiction of this Court under Section 423 of the

Companies Act, 2013, is primarily to answer questions of law

arising out of the proceedings before the Tribunal and Appellate

Tribunal.

14.2 Therefore, from the rival contentions, the questions of

law that arise are formulated as follows:

(i) Whether the formation of opinion by the Appellate

Tribunal that the company’s affairs have been or are

being conducted in a manner prejudicial and oppressive

to some members and that the facts otherwise justify the

winding up of the company on just and equitable ground,

is in tune with the well settled principles and parameters,

especially in the light of the fact that the findings of NCLT

on facts were not individually and specifically overturned

by the Appellate Tribunal ?

(ii) Whether the reliefs granted and the directions

issued by the Appellate Tribunal, including the

reinstatement of CPM into the Board of Tata Sons and

other Tata companies, are in consonance with the

pleadings made, the reliefs sought and the powers

available under Subsection (2) of Section 242 ?

(iii) Whether the Appellate Tribunal could have, in law,

muted the power of the Company under Article 75 of the

Articles of Association, to demand any member to

transfer his ordinary shares, by simply injuncting the

company from exercising such a right without setting

aside the Article ?

(iv) Whether the characterisation by the Tribunal, of the

affirmative voting rights available under Article 121 to the

Directors nominated by the Trusts in terms of Article

104B, as oppressive and prejudicial, is justified especially

after the challenge to these Articles have been given up

expressly and whether the Tribunal could have granted a

direction to RNT and the Nominee Directors virtually

nullifying the effect of these Articles ?

(iv) whether the reconversion of Tata Sons from a public

company into a private company, required the necessary

approval under section 14 of the Companies Act, 2013 or at

least an action under section 43A(4) of the Companies Act,

1956 during the period from 2000 (when Act 53 of 2000

came into force) to 2013 (when the 2013 Act was enacted)

as held by NCLAT ?

15. Legislative History of Oppression, Mismanagement and

Unfair Prejudice

15.1 Before we take up the questions of law formulated above

for consideration, we think it would be useful to look at the

legislative history of oppression, mismanagement and prejudice/

unfair prejudice, both in England and India, as colonial vintage

continues to haunt us (fortunately or unfortunately), both in

legislative drafting and in judicial decision making even till date.

In England

15.2 The history of legislative action to regulate incorporated

companies, in England, is just 176 years old. It begins with the

Joint Stock Companies Act, 1844. Until then, the government

created corporations under a Royal Charter or an Act of Parliament

with the grant of a monopoly over a specified territory. The best

known example is the British East India Company, to which Queen

Elizabeth I granted the exclusive right to trade with all countries to

the east of the Cape of Good Hope. During this period, Corporations

essentially used to act on the government's behalf, bringing in

revenue from their exploits abroad.

15.3 A chartered company (similar to East India Company),

known as the South Sea Company, was established in 1711 to

trade in the Spanish South American colonies. The South Sea

Company's monopoly rights were supposedly backed by the Treaty

of Utrecht, signed in 1713 as a settlement following the War of

Spanish Succession. Investors in the UK were promised high

returns of unimaginable proportions, which led to the shares of the

company being traded by avaricious investors at high premium. By

1717, the South Sea Company became so wealthy despite having

done no real business that it assumed the public debt of the UK

government. This was the first speculative bubble that the country

(or perhaps the world) saw, but by the end of 1720, the bubble had

"burst", leading to bankruptcies and the passage of The Bubble Act,

1720.

15.4 The UK Bubble Act, 1720 prohibited the establishment of

companies without a Royal Charter and it remained in force until

its repeal in 1825. By 1825, Industrial Revolution had gathered

pace, necessitating a legal change. The Bubble Companies Act 1825

lifted the restrictions, but it did not resolve the problem fully.

15.5 Therefore in 1843, the Parliamentary Committee on Joint

Stock Companies, chaired by William Gladstone made a report,

which led to the enactment of the Joint Stock Companies Act 1844.

This Act made it possible for ordinary people to incorporate

companies through a simple registration procedure. However, it did

not permit limited liability.

15.6 Then came the Limited Liability Act, 1855, which allowed

investors to limit their liability in the event of business failure, to

the amount they invested in the company. These two features a

simple registration procedure and limited liability were

subsequently codified in the first modern company law enactment,

namely the Joint Stock Companies Act 1856. The Joint Stock

companies Act, 1856 made it possible for any 7 individuals,

subscribing to shares individually, to form a limited liability

company. This was subsequently consolidated with a number of

other statutes in the Companies Act 1862, which was described by

Francis Palmer as the Magna Carta of Cooperative enterprises.

15.7 The Companies Act, 1862 consolidated the laws relating

to the incorporation, regulation and winding up of trading

companies and other associations. Though this Act did not provide

for any remedies to the minority shareholders in respect of

oppression and mismanagement, Section 79 empowered the Court

to wind up a company whenever the Court was of the opinion that it

is just and equitable to wind up the company. This Act also

contained a provision conferring a limited right upon a dissentient

member, whenever a sale or transfer of the business or property of

the company took place in the course of winding up proceedings.

15.8 However, when fraudulent practices in relation to the

formation and management of companies came to the fore, an

investigation was ordered by a Committee chaired by Lord Davey.

The Committee submitted a report along with a draft Bill in June,

1895. This Bill became the Companies Act, 1900. This Act also did

not contain any provision relating to oppression and

mismanagement. So was the case with the Companies

(Consolidation) Act, 1908. The Act of 1908 was examined by a

committee presided over by Lord Wrenbury in 1918 and again by a

committee headed by Greene, K.G. in 1926, which led to the

Companies Act, 1929.

15.9 During the second world war, a Company Law Reforms

Committee chaired by Lord Cohen was appointed (in 1943) by the

President of the Board of Trade to consider and report what major

amendments are needed to the 1929 Act, particularly “to review the

requirements prescribed in regard to the formation and affairs of

companies and the safeguards afforded for investors and for the

public interest”. This Committee’s report dealt specifically with 2

problems, namely (i) the hardship caused to the legal heirs of a

deceased shareholder of a private company in the matter of disposal

of the shares, due to the restriction on the transferability of shares

and (ii) the abuse of office by the Directors in siphoning off huge

profits in the form of remuneration, to the detriment of the small

shareholders. After analyzing these 2 issues in paragraphs 58 and

59 as illustrative cases, the Cohen Committee, recommended that

“a step in the right direction would be to enlarge the power of the

Court to make a windingup order by providing that the power shall

be exercisable notwithstanding the existence of an alternative

remedy”.

Paragraphs 58 to 60 of the Report reads as follows:

58. Restrictions on transfer of shares. It has been

represented to us that the provisions which are inserted in

the articles of a private company for the restriction of the

transfer of the shares have caused hardship especially

where the legal representatives of minority shareholders

have to raise money to pay estate duties. The directors of the

company, who are usually the principal shareholders,

sometimes exercise their power to refuse to register transfers

to outsiders, with the result that executors, who must realise

their testators' shares in order to pay estate duty, have to

sell to the directors or persons approved by them at prices

much lower than the values at which the shares are

assessed by the Board of Inland Revenue in valuing the

estate of the deceased for purpose of estate duty. This

difficulty is not in law peculiar to private companies since

there is no legal impediment to a public company having in

its articles a provision subjecting transfer of shares to the

approval of the directors though Stock Exchanges do not

accept it where leave to deal is required. This restriction is

valued as a means of keeping a family business under the

control of the family and we see no sufficient reason for its

removal, particularly if our suggestion in paragraph 6o is

adopted.

59. Excessive remuneration of directors. Another abuse

which has been found to occur is that the directors absorb

an undue proportion of the profits of the company in

remuneration for their services so that little or nothing is left

for distribution among the shareholders by way of dividend.

This may happen where, for example, two persons trading in

partnership form their business into a limited company and

one partner dies, leaving his shares to his widow who takes

no active part in the business. At present the only remedy

open to the minority shareholder is to commence an action to

restrain the company from paying the remuneration on the

ground that such payment is a fraud on the minority, since

the Court would not make a windingup, order in view of the

alternative remedy.

60. Oppression of minorities.We have carefully examined

suggestions intended to strengthen the minority

shareholders of a private company in resisting oppression by

the majority. The difficulties to which we have referred in the

two preceding paragraphs are, in fact, only illustrations of a

general problem. It is impossible to frame a recommendation

to cover every case. We consider that a step in the right

direction would be to enlarge the power of the Court to make

a windingup order by providing that the power shall be

exercisable notwithstanding the existence of an alternative

remedy. In many cases, however, the windingup of the

company will not benefit the minority shareholders, since the

breakup value of the assets may be small, or the only

available purchaser may be that very majority whoseoppression has driven the minority to seek redress. We,

therefore, suggest that the Court should have, in addition,

the power to impose upon the parties to a dispute whatever

settlement the Court considers just and equitable. This

discretion must be unfettered, for it is impossible to lay down

a general guide to the solution of what are essentially

individual cases. We do not think that the Court can be

expected in every case to find and impose a solution; but our

proposal will give the Court a jurisdiction which it at present

lacks, and thereby at least empower it to impose a solution

in those cases where one exists.

15.10 Ultimately, in para 153 of the report, a recommendation

was made to amend the provision relating to winding up, by adding

the following:

There be a new section under which, on a shareholder's

petition, the Court, if satisfied that a minority of the

shareholders is being oppressed and that a windingup order

would not do justice to the minority, should be empowered,

instead of making a windingup order, to make such other

order, including an order for the purchase by the majority of

the shares of the minority at a price to be fixed by the Court,

as to the Court may seem just

15.11 Lord Cohen committee report led to the enactment of the

Companies Act, 1948, in which a provision was incorporated in

section 210. The heading given to the Section was, “Alternative

Remedy to Winding up in Cases of Oppression”. This provision reads

as follows:

“210. Alternative remedy to winding up in cases of

oppression

(1) Any member of a company who complains that the affairs of

the company are being conducted in a manner oppressive to

some part of the members (including himself) or, in a case

falling within subsection (3) of section one hundred and sixtynine of this Act, the Board of Trade, may make an application

to the court by petition for an order under this section.

(2) If on any such petition the court is of opinion—

(a) that the company's affairs are being conducted as

aforesaid; and

(b) that to wind up the company would unfairly prejudice that

part of the members, but otherwise the facts would justify the

making of a windingup order on the ground that it was just

and equitable that the company should be wound up;

the court may, with a view to bringing to an end the matters

complained of, make such order as it thinks fit, whether for

regulating the conduct of the company's affairs in future, or for

the purchase of the shares of any members of the company by

other members of the company or by the company and, in the

case of a purchase by the company, for the reduction

accordingly of the company's capital, or otherwise.

(3) Where an order under this section makes any alteration in

or addition to any company's memorandum or articles, then,

notwithstanding anything in any other provision of this Act but

subject to the provisions of the order, the company concerned

shall not have power without the leave of the court to make

any further alteration in or addition to the memorandum or

articles inconsistent with the provisions of the order; but,

subject to the foregoing provisions of this subsection, the

alterations or additions made by the order shall be of the same

effect as if duly made by resolution of the company and the

provisions of this Act shall apply to the memorandum or

articles as so altered or added to accordingly.

(4) An office copy of any order under this section altering or

adding to, or giving leave to alter or add to, a company's

memorandum or articles shall, within fourteen days after the

making thereof, be delivered by the company to the registrar of

companies for registration; and if a company makes default in

complying with this subsection, the company and every officer

of the company who is in default shall be liable to a default

fine.

(5) In relation to a petition under this section, section three

hundred and sixtyfive of this Act shall apply as it applies in

relation to a windingup petition, and proceedings under this

section shall, for the purposes of Part V of the Economy

(Miscellaneous Provisions) Act, 1926, be deemed to be

proceedings under this Act in relation to the winding up of

companies.

15.12 But the word “oppressive” appearing in section 210 of the

1948 Act, was construed by the House of Lords in Scottish

Cooperative Wholesale Society vs. Meyer1

to mean

“burdensome, harsh and wrongful”. The expression “wrongful”

gave rise to some uncertainty as to whether it required actual

illegality or invasion of legal rights. Moreover, the provision invited 2

criticisms namely (i) that the requirement to establish grounds

which justified winding up under the just and equitable clause was

itself harsh and (ii) that section 210 would not apply to an isolated

act, but applied only to a course of conduct.

15.13 Therefore, the Jenkins Committee of 1962 recommended

use of the term “unfairly prejudicial”. Parliament adopted it in

Section 75 of the Companies Act, 1980. Later, this section 75 of the

1980 Act became, with an amendment, Section 459 of the

Companies Act, 1985. Sections 459 to 461 of the Companies Act,

1985 were included in Part XVII, under the caption “Protection of

Company’s Members against Unfair Prejudice”. Sections 459 to

461 read as follows:

1 1959 A.C.324

459. Order on application of company member.

(1) A member of a company may apply to the court by petition

for an order under this Part on the ground that the company’s

affairs are being or have been conducted in a manner which

is unfairly prejudicial to the interests of some part of the

members (including at least himself) or that any actual or

proposed act or omission of the company (including an act or

omission on its behalf) is or would be so prejudicial.

(2) The provisions of this Part apply to a person who is not a

member of a company but to whom shares in the company

have been transferred or transmitted by operation of law, as

those provisions apply to a member of the company; and

references to a member or members are to be construed

accordingly.

460 Order on application of Secretary of State

(1) If in the case of any company—

(a) the Secretary of State has received a report under section

437, or exercised his powers under section 447 or 448 of this

Act or section 44(2) to (6) of the [1982 c. 50.] Insurance

Companies Act 1982 (inspection of company's books and

papers), and

(b) it appears to him that the company's affairs are being or

have been conducted in a manner which is unfairly prejudicial

to the interests of some part of the members, or that any actual

or proposed act or omission of the company (including an act or

omission on its behalf) is or would be so prejudicial. he may

himself (in addition to or instead of presenting a petition under

section 440 for the winding up of the company) apply to the

court by petition for an order under this Part.

(2) In this section (and, so far as applicable for its purposes, in

the section next following) "company" means any body

corporate which is liable to be wound up under this Act.

100

461 Provisions as to petitions and orders under this Part

(1) If the court is satisfied that a petition under this Part is well

founded, it may make such order as it thinks fit for giving relief

in respect of the matters complained of.

(2) Without prejudice to the generality of subsection (1), the

court's order may—

(a) regulate the conduct of the company's affairs in the future,

(b) require the company to refrain from doing or continuing an

act complained of by the petitioner or to do an act which the

petitioner has complained it has omitted to do,

behalf of the company by such person or persons and on such

terms as the court may direct,

(d) provide for the purchase of the shares of any members of

the company by other members or by the company itself and,

in the case of a purchase by the company itself, the reduction

of the company's capital accordingly.

(3) If an order under this Part requires the company not to

make any, or any specified, alteration in the memorandum or

articles, the company does not then have power without leave

of the court to make any such alteration in breach of that

requirement.

(4) Any alteration in the company's memorandum or articles

made by virtue of an order under this Part is of the same effect

as if duly made by resolution of the company, and the

provisions of this Act apply to the memorandum or articles as

so altered accordingly.

(5) An office copy of an order under this Part altering, or giving

leave to alter, a company's memorandum or articles shall,

within 14 days from the making of the order or such longer

period as the court may allow, be delivered by the company to

the registrar of companies for registration ; and if a company

makes default in complying with this subsection, the company

and every officer of it who is in default is liable to a fine and,

for continued contravention, to a daily default fine.

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(6) Section 663 (windingup rules) applies in relation to a

petition under this Part as in relation to a windingup petition.

The words in bold letters in the above extract in section 459,

were later substituted by the words “unfairly prejudicial to the

interests of its members generally or of some part of its

members” by a 1989 amendment which came into effect in 1991.

15.14 The Companies Act, 1985 was repealed by the

Companies Act, 2006, which had the dubious distinction of being

the longest Act in British parliamentary history, with 1300 sections

and 16 schedules. (until it was overtaken by the Corporation Tax

Act, 2009). Part 30 of the Act contains 3 provisions in sections 994

to 996 (apart from others), grouped under the heading “Protection of

Members against Unfair Prejudice”. Paragraph 1265 of the

Explanatory Notes to the 2006 Act, confirms that Sections 994998

restate sections 459, 460 and 461 of the 1985 Act.

15.15 Sections 994 to 996 of the Companies Act, 2006 read as

follows:

“994 Petition by company member

(1) A member of a company may apply to the court by

petition for an order under this Part on the ground—

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(a) that the company’s affairs are being or have been

conducted in a manner that is unfairly prejudicial to the interests

of members generally or of some part of its members (including at

least himself), or

(b) that an actual or proposed act or omission of the

company (including an act or omission on its behalf) is or would

be so prejudicial.

(2) The provisions of this Part apply to a person who is not

a member of a company but to whom shares in the company have

been transferred or transmitted by operation of law as they apply

to a member of a company.

(3) In this section, and so far as applicable for the purposes

of this section in the other provisions of this Part, “company”

means—

(a) a company within the meaning of this Act, or

(b) a company that is not such a company but is a statutory

water company within the meaning of the Statutory Water

Companies Act 1991 (c. 58).

995 Petition by Secretary of State

(1) This section applies to a company in respect of which—

(a) the Secretary of State has received a report under

section 437 of the Companies Act 1985 (c. 6) (inspector’s report);

(b) the Secretary of State has exercised his powers under

section 447 or 448 of that Act (powers to require documents and

information or to enter and search premises);

has exercised his or its powers under Part 11 of the Financial

Services and Markets Act 2000 (c. 8) (information gathering and

investigations); or

(d) the Secretary of State has received a report from an

investigator appointed by him or the Financial Services Authority

under that Part.

(2) If it appears to the Secretary of State that in the case of

such a company—

(a) the company’s affairs are being or have been conducted

in a manner that is unfairly prejudicial to the interests of

members generally or of some part of its members, or

103

(b) an actual or proposed act or omission of the company

(including an act or omission on its behalf) is or would be so

prejudicial, he may apply to the court by petition for an order

under this Part.

(3) The Secretary of State may do this in addition to, or

instead of, presenting a petition for the winding up of the

company.

(4) In this section, and so far as applicable for the purposes

of this section in the other provisions of this Part, “company”

means any body corporate that is liable to be wound up under the

Insolvency Act 1986 (c. 45) or the Insolvency (Northern Ireland)

Order 1989 (S.I. 1989/2405 (N.I. 19)).

996 Powers of the court under this Part

(1) If the court is satisfied that a petition under this Part is

well founded, it may make such order as it thinks fit for giving

relief in respect of the matters complained of.

(2) Without prejudice to the generality of subsection (1), the

court’s order may—

(a) regulate the conduct of the company’s affairs in the

future;

(b) require the company— (i) to refrain from doing or

continuing an act complained of, or (ii) to do an act that the

petitioner has complained it has omitted to do;

and on behalf of the company by such person or persons and on

such terms as the court may direct;

(d) require the company not to make any, or any specified,

alterations in its articles without the leave of the court;

(e) provide for the purchase of the shares of any members

of the company by other members or by the company itself and,

in the case of a purchase by the company itself, the reduction of

the company’s capital accordingly.

Legislative history in India

104

15.16 In India, the earliest legislation made for the ‘Regulation

of Registered Joint Stock Companies’ was Act No. XLIII of 1850.

This Act provided for the registration of every unincorporated

company of partners, associated under a deed containing a

provision that the shares in the stock or business of the said

company, are transferable without the consent of all the partners. It

will be fascinating for those interested in history, to know that

under this 1850 Act, the Supreme Courts of Judicature at

Calcutta, Madras and Bombay were conferred not only with the

power of registration of such companies but also with a power to

enforce the performance by the directors of any of their duties

under the Act or the deed of partnership. These courts also had a

consequential power to punish a person for contempt, if there was

any disobedience of the order of the court. The concepts such as

minority, majority, oppression, mismanagement etc., were alien to

this Act of 1850.

105

15.17 Then came Act No.XIX of 1857 which provided for the

incorporation and regulation of joint stock companies and other

associations either with or without limited liability of the members

thereof. The primary object of the Act was to enable the members of

the joint stock companies and other associations to limit their

liability for the debts and engagements relating to those companies

and associations. It was under this Act that for the first time the

prescription that 7 or more persons associated for any lawful

purpose may form themselves into an incorporated company with

or without limited liability by subscribing their names to a

Memorandum of Association, was introduced. By this very same Act

the prohibition for 20 or more persons to carry on any partnership

in trade or business having gain as its object, unless they are

registered as a company, was also introduced. But even in this Act

the concepts such as oppression and mismanagement etc., were not

dealt with (perhaps due to the fact that East India Company alone

was granted such a privilege).

106

15.18 Thereafter, a fullfledged enactment known as The Indian

Companies’ Act, 1866 was passed with a view to consolidate and

amend the laws relating to the incorporation, regulation and

winding up of trading companies and other associations. Even this

Act, did not provide for any remedy in the case of oppression and

mismanagement, though provisions were made for winding up

including voluntary winding up.

15.19 The above Act No. X of 1866 was repealed by The Indian

Companies Act No. VI of 1882. This Act also did not contain

provisions for an individual or group of shareholders/members to

seek redressal against oppression, mismanagement or any unfair

prejudicial treatment.

15.20 Then came The Indian Companies Act, 1913 (Act No.VII

of 1913) which repealed the 1882 Act and the amendments made

thereof. Interestingly, this 1913 Act also repealed one particular

provision in the Indian Arbitration Act, 1899. Though in the original

enactment of 1913, there was no provision relating to oppression

107

and mismanagement, the Amendment Act 52 of 1951 inserted

Section 153C to The Indian Companies Act, 1913. This Section

153C reads as follows :

“153C. Power of court to act when company acts in a

prejudicial manner or oppresses any part of its

members.(1) Without prejudice to any other action that may

be taken, whether in pursuance of this Act or any other law

for the time being in force, any member of a company who

complains that the affairs of the company are being

conducted

(a) In a manner prejudicial to the interest of the

company, or

(b) In a manner oppressive to some part of the

members (including himself) may make an

application to the court for an order under the

section.

(2) An application under subsection (I) may also be made

by the Central Government if it is satisfied that the affairs of

the company are being conducted as aforesaid.

(3) No application under subsection (I) shall be made by any

member, unless

(a) In the case of a company having a share

capital, the member complaining

(i) has obtained the consent in writing of not

less than one hundred in number of the

members of the company or not less than

108

onetenth in number of the members,

whichever is less or

(ii) holds not less than onetenth of the issued

share capital of the company upon which

all calls and other sums due have been

paid; and

(b) In the case of a company not having a share

capital the member complaining has obtained the

consent in writing of not less than onefifth in number of

the members, and where there are several persons

having the same interest in any such application and

the condition specified in clause (a) or clause (b) of this

subsection is satisfied with reference to one or more of

such persons, any one or more of them may, with the

permission of the court, make the application on behalf

of, or for the benefit of, all persons so interested, and

the provisions of rule 8 of Order I of the First Schedule

to the Code of Civil Procedure, 1908 (Act V of 1908),

shall apply to any such application as it applies to any

suit within the meaning of that rule.

(4) If on any such application the court is of opinion

(a) that the company’s affairs are being conducted

as aforesaid, and

(b) that to wind up the company would unfairly and

materially prejudice the interests of the company or any

part of its members, but otherwise the facts would

justify the making of a winding up order on the ground

that it is just and equitable that the company should be

wound up,

109

the court may, with a view to bringing to an end the matters

complained of, make such order in relation thereto as it thinks

fit.

(5) Without prejudice to the generality of the powers vested

in a court under subsection (4), any order made under that

subsection may provide for

(a) the regulation of the conduct of the company’s

affairs in future;

(b) the purchase of the shares or interests of any

members of the company by other members thereof or

by the company;

by the company being a company having a share

capital, for the reduction accordingly of the company’s

capital or otherwise;

(d) the termination of any agreement, howsoever,

arrived at, between the company and its manager,

managing agent, managing director or any of its other

directors;

(e) the termination or revision of any agreement

entered into between the company and any person

other than any of the persons referred to in clause(d),

provided that no such agreement shall be termination

or revised except after due notice to the party

concerned and in the case of revision of any such

110

agreement, after obtaining the consent of the party

concerned thereto;

(f) the setting aside of any transfer, delivery of

goods, payment, execution or other act relating to

property made or done by or against the company

within three months before the date of the application

under subsection (I), which would, if made or done by

or against an individual, be deemed in his insolvency

to be a fraudulent preference.

(6) Where an order under this section makes any alteration

in, or addition to, the memorandum or articles of any

company, then notwithstanding anything contained in any

other provision of this Act, but subject to the provisions of the

order, the company concerned shall not have power without

the leave of the court to make any further alteration in, or

addition to, the memorandum or articles inconsistent with the

provisions of the order, but subject to the foregoing provisions

of this subsection the alterations or additions made by the

order shall have the same effect as is duly made by a

resolution of the company, and the provisions of this Act shall

apply to the memorandum or articles as so altered or added

to accordingly.

(7) A certified copy of every order under this section

altering or adding to, or giving leave to alter or add to, the

memorandum or articles of any company shall, within fifteen

days after the making thereof, be delivered by the company to

the registrar for registration, and if a company makes default

in complying with the provisions of this subsection, the

company and every officer of the company who is in default

shall be punishable with fine which may extend to five

thousand rupees.

(8) It shall be lawful for the court upon the application of

any petitioner or of any respondent to a petition under this

111

section and upon such terms as to the court appears just and

equitable, to make an such interim order as it thinks fit for

regulating the conduct of the affairs of the company pending

the making of a final order in relation to the application.

(9) Where any manager, managing agent, managing

director or any other director or any other person who has not

been impleaded as a respondent to any application under this

section applies to be made a party thereto, the court shall, if it

is satisfied that his presence before the court is necessary in

order to enable the court effectually and completely to

adjudicate upon and settle all the questions involved in the

application, direct that the name of any such person be added

to the application.

(10) In any case in which the court makes an order

terminating any agreement between the company and its

manager, managing agent or managing director or any of its

other directors, as the case may be, the court may, if it

appears to it that the manager, managing agent, managing

director or other director, as the case may be, has misapplied

or retained or become liable or accountable for any money or

property of the company or has been guilty of any

misfeasance or breach of trust in relation to the company,

compel him to repay or restore the money or property or any

part thereof respectively with interest at such rate as the court

thinks just, or to contribute such sums to the assets of the

company by way of compensation in respect of the

misapplication, retainer, misfeasance or breach of trust as the

court thinks just, and the provisions of sections 235 and 236

of this Act shall apply as they apply to a company in the

course of being wound up.

Explanation. For the purposes of this section, any material

change after the 21st day of July, 1951, in the control of a

company, or in the case of a company having a managing

agent in the composition of the managing agent which is a

firm or in the control of the managing agent which is a

company, may be deemed by the court to be a fact which

112

would justify the making of a windingup order on the ground

that it would be just and equitable that the company should

be wound up:

Provided that the court is satisfied that by reason of the

change the interests of the company or any part of its

members are or are likely to be unfairly and materially

prejudiced”

15.21 After the country attained independence, a Company Law

Committee was appointed by the Government of India for the

revision of the Companies Act with particular reference to Indian

trade and industry. The Committee submitted its report in March1952. After circulating the Report to all State Governments,

Chambers of Commerce, Trade Associations and other bodies and

after examining the inputs received, the Companies Act, 1956 (Act

no.1 of 1956) was passed. This Act included a full Chapter in

Chapter VI of Part VI, containing elaborate provisions for the

prevention of oppression and mismanagement. This Chapter was

divided into two parts, with Part A dealing with the powers of the

Court/Tribunal and Part B dealing with the powers of the Central

113

Government. Sections 397, 398 and 402 of the Act are of

significance and, hence, they are extracted as follows:

“397. Application to Court for relief in cases of

oppression. (1) Any members of a company who complain

that the affairs of the company are being conducted in a

manner oppressive to any member or members (including any

one or more of themselves) may apply to the Court for an

order under this section, provided such members have a right

so to apply in virtue of section 399.

(2) If, on any application under subsection (1), the Court is

of opinion

(a) that the company's affairs are being conducted in

a manner oppressive to any member or members; and

(b) that to wind up the company would unfairly

prejudice such member or members, but that otherwise

the facts would justify the making of a winding up

order on the ground that it was just and equitable that

the company should be wound up;

the Court may, with a view to bringing to an end the matters

complained of, make such order as it thinks fit.

398. Application to Court for relief in cases of

mismanagement.(1) Any members of a company who

complain

(a) that the affairs of the company are being

conducted in a manner prejudicial to the interests of the

company; or

(b) that a material change (not being a change

brought about by, or in the interests of, any creditors

including debenture holders, or any class of

shareholders, of the company) has taken place in the

management or control of the company, whether by an

alteration in its board of Directors, or of its managing

agent or secretaries and treasurers, or in the

114

constitution or control of the firm or body corporate

acting as its managing agent or secretaries and

treasurers, or in the ownership of the company's

shares, or if it has no share capital, in its membership,

or in any other manner whatsoever, and that by reason

of such change, it is likely that the affairs of the

company will be conducted in a manner prejudicial to

the interests of the company;

may apply to the Court for an order under this section,

provided such members have a right so to apply in virtue of

section 399.

(2) If, on any application under subsection (1), the Court is

of opinion that the affairs of the company are being conducted

as aforesaid or that by reason of any material change as

aforesaid in the management or control of the company, it is

likely that the affairs of the company will be conducted as

aforesaid, the Court may, with a view to bringing to an end or

preventing the matters complained of or apprehended, make

such order as it thinks fit.

402 Powers of Court on application under section 397

or 398. Without prejudice to the generality of the powers of

the Court under section 397 or 398, any order under either

section may provide for

(a) the regulation of the conduct of the company's

affairs in future;

(b) the purchase of the shares or interests of any

members of the company by other members thereof or

by the company;

company as aforesaid, the consequent reduction of its

share capital;

(d) the termination, setting aside or modification of

any agreement, howsoever arrived at, between the

company on the one hand, and any of the following

persons, on the other, namely:

115

(i) the managing director,

(ii) any other director,

(iii) the managing agent,

(iv) the secretaries and treasurers, and

(v) the manager.

upon such terms and conditions as may, in the opinion

of the Court, be just and equitable in all the

circumstances of the case.

(e) the termination, setting aside or modification of

any agreement between the company and any person

not referred to in clause (d), provided that no such

agreement shall be terminated, set aside or modified

except after due notice to the party concerned and

provided further that no such agreement shall be

modified except after obtaining the consent of the party

concerned;

(f) the setting aside of any transfer, delivery of

goods, payment, execution or other act relating to

property made or done by or against the company

within three months before the date of the application

under section 397 or 398, which would, if made or done

by or against an individual, be deemed in his

insolvency to be a fraudulent preference;

(g) any other matter for which in the opinion of the

Court it is just and equitable that provision should be

made.”

15.22 After the economy of the country opened up and the

national and international economic environment changed, the

Government decided to replace the 1956 Act with a new one.

Accordingly, the Companies Bill, 2009 was introduced in the Lok

116

Sabha. But this bill was withdrawn and the Companies Bill, 2011

was introduced. This eventually became the Companies Act 2013.

Among the many changes brought about by this Companies Act

2013, those relating to protection of minority shareholders is what

is relevant for our purpose. In fact, paragraph 5(ix) of the Statement

of Objects and Reasons for the Companies Act, 2013 deals with the

issue of protection of minority shareholders. It reads as follows:

“5. (ix) Protection for Minority Shareholders:

(a) Exit option to shareholders in case of dissent to

change in object for which public issue was made.

(b) Specific disclosure regarding effect of merger on

creditors, key managerial personnel, promoters and

nonpromoter shareholders is being provided. The

Tribunal is being empowered to provide for exit offer to

dissenting shareholders in case of compromise or

arrangement.

small shareholders who may be elected in such manner

as may be prescribed by rules.”

15.23 Chapter XVI of the 2013 Act containing Sections 241 to

246 deals exclusively with “Prevention of Oppression and

117

Mismanagement.” Sections 241 and 242 are of relevance for our

purpose and hence it is extracted as follows:

“241. Application to Tribunal for relief in cases of

oppression, etc. — (1) Any member of a company who complains

that—

(a) the affairs of the company have been or are being

conducted in a manner prejudicial to public interest or

in a manner prejudicial or oppressive to him or any

other member or members or in a manner prejudicial to

the interests of the company; or

(b) the material change, not being a change brought

about by, or in the interests of, any creditors, including

debenture holders or any class of shareholders of the

company, has taken place in the management or control

of the company, whether by an alteration in the Board

of Directors, or manager, or in the ownership of the

company‘s shares, or if it has no share capital, in its

membership, or in any other manner whatsoever, and

that by reason of such change, it is likely that the

affairs of the company will be conducted in a manner

prejudicial to its interests or its members or any class of

members,

may apply to the Tribunal, provided such member has a right

to apply under section 244, for an order under this Chapter.

(2) The Central Government, if it is of the opinion that

the affairs of the company are being conducted in a manner

prejudicial to public interest, it may itself apply to the Tribunal

for an order under this Chapter:

242. Powers of Tribunal.— (1) If, on any application made under

section 241, the Tribunal is of the opinion—

(a) that the company‘s affairs have been or are being

conducted in a manner prejudicial or oppressive to any

118

member or members or prejudicial to public interest or

in a manner prejudicial to the interests of the company;

and

(b) that to wind up the company would unfairly

prejudice such member or members, but that otherwise

the facts would justify the making of a windingup

order on the ground that it was just and equitable that

the company should be wound up,

the Tribunal may, with a view to bringing to an end the

matters complained of, make such order as it thinks fit.

(2) Without prejudice to the generality of the powers

under subsection (1), an order under that subsection may

provide for—

(a) the regulation of conduct of affairs of the

company in future;

(b) the purchase of shares or interests of any

members of the company by other members thereof or

by the company;

company as aforesaid, the consequent reduction of its

share capital;

(d) restrictions on the transfer or allotment of the

shares of the company;

(e) the termination, setting aside or modification, of

any agreement, howsoever arrived at, between the

company and the managing director, any other director

or manager, upon such terms and conditions as may, in

the opinion of the Tribunal, be just and equitable in the

circumstances of the case;

(f) the termination, setting aside or modification of

any agreement between the company and any person

other than those referred to in clause (e): Provided that

no such agreement shall be terminated, set aside or

119

modified except after due notice and after obtaining the

consent of the party concerned;

(g) the setting aside of any transfer, delivery of

goods, payment, execution or other act relating to

property made or done by or against the company

within three months before the date of the application

under this section, which would, if made or done by or

against an individual, be deemed in his insolvency to

be a fraudulent preference;

(h) removal of the managing director, manager or

any of the directors of the company;

(i) recovery of undue gains made by any managing

director, manager or director during the period of his

appointment as such and the manner of utilisation of

the recovery including transfer to Investor Education

and Protection Fund or repayment to identifiable

victims;

(j) the manner in which the managing director or

manager of the company may be appointed subsequent

to an order removing the existing managing director or

manager of the company made under clause (h);

(k) appointment of such number of persons as

directors, who may be required by the Tribunal to report

to the Tribunal on such matters as the Tribunal may

direct;

(l) imposition of costs as may be deemed fit by the

Tribunal;

(m) any other matter for which, in the opinion of the

Tribunal, it is just and equitable that provision should

be made.

(3) A certified copy of the order of the Tribunal under

subsection (1) shall be filed by the company with the

Registrar within thirty days of the order of the Tribunal.

120

(4) The Tribunal may, on the application of any party

to the proceeding, make any interim order which it thinks fit

for regulating the conduct of the company‘s affairs upon such

terms and conditions as appear to it to be just and equitable.

(5) Where an order of the Tribunal under subsection

(1) makes any alteration in the memorandum or articles of a

company, then, notwithstanding any other provision of this

Act, the company shall not have power, except to the extent, if

any, permitted in the order, to make, without the leave of the

Tribunal, any alteration whatsoever which is inconsistent

with the order, either in the memorandum or in the articles.

(6) Subject to the provisions of subsection (1), the

alterations made by the order in the memorandum or articles

of a company shall, in all respects, have the same effect as if

they had been duly made by the company in accordance with

the provisions of this Act and the said provisions shall apply

accordingly to the memorandum or articles so altered.

(7) A certified copy of every order altering, or giving

leave to alter, a company‘s memorandum or articles, shall

within thirty days after the marking thereof, be filed by the

company with the Registrar who shall register the same.

(8) If a company contravenes the provisions of subsection (5), the company shall be punishable with fine which

shall not be less than one lakh rupees but which may extend

to twentyfive lakh rupees and every officer of the company

who is in default shall be punishable with imprisonment for a

term which may extend to six months or with fine which shall

not be less than twentyfive thousand rupees but which may

extend to one lakh rupees, or with both.”

15.24 Thus the English legislative history of the provisions

relating to oppression, mismanagement and prejudice, show 3

milestones, namely (i) the introduction in the year 1862, of

121

the ‘just and equitable clause’ for winding up and the

conferment of a limited right on the dissentient member,

whenever a transfer or sale took place in the course of

winding up proceedings, (ii) the provision of an alternative

remedy to winding up, in case of oppression of minority, in

the year 1948 and (iii) the shift from oppression to the ‘unfair

prejudice’ quotient in 1980/1985. The journey, in other words,

was from “winding up on just and equitable cause” to

“oppression” to “unfair prejudice”.

15.25 But in so far as India is concerned, what was

incorporated in section 210 of the English Companies Act, 1948,

inspired the insertion of section 153C of the Indian Companies Act,

1913, by way of an amendment in 1951. Then came sections 397

and 398 of the 1956 Act, with certain modifications. An overhaul of

these provisions resulted in Sections 241 and 242 of the 2013

Indian Act, on the model of (and not exact reproduction of) sections

122

459 to 461 of the English Companies Act, 1985 and sections 994 to

996 of the English Act of 2006.

15.26 The change of language and the consequential change of

parameters for an inquiry relating to oppression and

mismanagement from 1951 to 1956 and from 1956 to 2013 and

thereafter can be best understood, if the anatomy of the statutory

provisions are dissected and presented in a table :

1913 Act

(After the Amendment

Act 52 of 1951)

1956 Act

(with the amendment

made under Act 53 of

1963)

2013 Act

(1) Company’s affairs

are being conducted in

a manner

(a) Prejudicial to

the company’

interest;

(b) Oppressive to

some part of the

members;

and

(2) Winding up will

unfairly and materially

prejudice the interests

of the company’s or

any part of its

members

(1) Company’s affairs

are being conducted in

a manner

(a) Prejudicial to

public interest;

(b) Oppressive to any

member or

members;

interests of the

company;

and

(2) Winding up will

unfairly prejudice such

(1) Company’s affairs

have been or are being

conducted in a manner–

(a) Prejudicial to

any member or

members;

(b) Prejudicial to

public interest;

interests of the

company; or

(d) Oppressive to

123

(3) The object should be

to bring to an end, the

matters complained of.

member or members. any member or

members.

(2) Winding up will

unfairly prejudice such

member or members.

15.27 From the table given above, it could be seen that the

changes brought about in India in course of time, were material.

These changes can be summarised as follows:

(i) While the conduct of the company’s affairs in a manner that

warrant interference, should be “present and continuing”, under

the 1913 Act and 1956 Act, as seen from the usage of the words

“are being”, the conduct could even be “past or present and

continuous” under the 2013 Act as seen from the usage of the

words “have been or are being” (But the conduct cannot be of a

distant past);

(ii) Prejudice to public interest and prejudice to the interests of any

member or members were not among the parameters prescribed in

the 1913 Act, but under the 1956 Act prejudice to public interest

124

was included both under the provision relating to oppression and

also under the provision relating to mismanagement. Prejudice to

the interest of the company was included only in the provision

relating to mismanagement. But under the 2013 Act conduct

prejudicial to any member or prejudicial to public interest or

prejudicial to the interest of the company are all added along with

oppression;

(iii) Under the 1913 Act, the Court should be satisfied that winding

up under the just and equitable clause will not only unfairly

prejudice but “also materially prejudice” the interests of the

company or any part of its members. But in the 1956 Act and 2013

Act, the words “and materially” do not follow the word “unfairly”.

Moreover, under the 1956 Act and 2013 Act all that is required to

be seen is whether the winding up will unfairly prejudice “such

member or members” indicating thereby that the focus was on

complaining/affected members.

125

15.28 Having thus seen the shift in the Indian legislative policy

under Act 52 of 1951 (amending the 1913 Act) and then under the

1956 Act as amended by Act 53 of 1963 and thereafter under the

2013 Act, let us also see how the shift in the legislative policy

happened in the United Kingdom. A table similar to the one given in

para 15.26, is presented below insofar as the English Law is

concerned:

1948 English Act 1985 English Act with

Amendment in 1991

2006 Act

(i) the company’s

affairs are being

conducted in a

manner oppressive to

some part of the

members

(ii) to wind up the

company would

unfairly prejudice that

part of the members,

though winding up on

just and equitable

ground may be

justified.

(iii) the order of the

Court should be

(i) the company’s affairs

are being or have been

conducted in a manner

unfairly prejudicial to the

interests of some part of

its members or:

(ii) that any actual or

proposed act would be so

prejudicial

then the Court may pass

such order as it thinks fit

for giving relief in respect

of the matters complained

of.

(i) the company’s affairs

are being or have been

conducted in a manner

unfairly prejudicial to the

interests of the members

generally or of some part

of its members and:

(ii) that any actual or

proposed act would be so

prejudicial

then the Court may pass

such order as it thinks fit

for giving relief in respect

of the matters complained

of.

126

passed with a view to

bringing to an end the

matters complained of.

15.29 There are a few notable features of the shift that

happened in England. They are (i) from a “conduct oppressive to

some part of the members” the focus has shifted to “conduct unfairly

prejudicial to the interests of the members generally or of some part

of its members”: (ii) conduct prejudicial to public interest or

prejudicial to the company’s interest, does not form part of the

scheme of English Law; (iii) any actual or proposed act or omission,

can also be challenged under English Law on the ground that it

would turn out to be prejudicial; (iv) the question of the Court

forming an opinion that the facts would otherwise require an order

for winding up on just and equitable ground but that the same will

unfairly prejudice the complaining members, does not arise under

the English Law any more.

15.30 But despite the huge shift in England, there appears to

be a common thread running in all the enactments, both in India

127

and England. In all the 3 Indian enactments, namely the 1913 Act,

1956 Act and the 2013 Act, the Court is ordained, generally to pass

such orders “with a view to bringing to an end the matters

complained of”. This sentence is found in Section 153C(4) of the

1913 Act. It is found in Section 397(2) as well as 398(2) of the 1956

Act and it is also found in Section 242 (1) of the 2013 Act. This is

also the common thread that runs through the statutory

prescriptions contained in the English Acts of 1948, 1985 and

2006. Therefore, at the stage of granting relief in an application

under these provisions, the final question that the Court should ask

itself is as to whether the order to be passed will bring to an end the

matters complained of. Having thus seen the development of law, let

us now take up the questions of law one after another.

128

16. Question No. 1

16.1 The first question of law arising for consideration is

whether the formation of opinion by the Appellate Tribunal that the

company’s affairs have been or are being conducted in a manner

prejudicial and oppressive to some members and that the facts

otherwise justify the winding up of the company on just and

equitable ground, is in tune with the well settled principles and

parameters, especially in the light of the fact that the findings of

NCLT on facts were not individually and specifically overturned by

the Appellate Tribunal ?

16.2 An analysis of the provisions of Section 241(1)(a) read

with clauses (a) and (b) of Subsection (1) of Section 242 shows that

a relief under these provisions can be granted only if the Tribunal is

of the opinion –

“(1) that the company’s affairs have been or are being

conducted in a manner –

(a) Prejudicial to any member or members or

129

(b) Prejudicial to public interest or

(d) Oppressive to any member or members

and

(2) that though the facts would justify the making of a

winding up order on the basis of just and equitable clause,

such a winding up would unfairly prejudice such member or

members.

16.3 Keeping in mind the above statutory prescription, if we go

back to the pleadings, it will be seen that the complainant

companies forming part of the S.P. Group pitched their claim in

their original petition on the ground:

(i) that the affairs of Tata Sons are being carried as though

it was the proprietary concern of RNT; and

(ii) that though the oppressive conduct of the respondents

was such that it would be just and equitable to wind up Tata

Sons under Section 241, but such winding up would unfairly

prejudice the interests of the complainants.

16.4 The specific allegations on which the complainant

companies (of the S.P. Group) sought relief are as follows:

130

(i) The abuse of a few Articles of Association and the control

exercised by the Tata Trust and its nominee Directors over the

Board of Directors of Tata Sons;

(ii) The removal of CPM as Executive Chairman;

(iii) Transactions with Mr. C. Sivasankaran of Sterling

Infotech and the transactions in which Tata Teleservices got

entangled;

(iv) Acquisition of Corus Group Inc of U.K.;

(v) Doomed Nano Car project;

(vi) The grant of intercorporate bridge loan to sterling

computers;

(vii) The dealings with NTT DoCoMo which eventually led to

an arbitration award for a huge sum of money;

(viii) The sale of a flat to Mehli Mistry and the grant of huge

personal favours to the companies owned and controlled by

Mehli Mistry.

16.5 Each and every one of the allegations forming the basis of

the complaint, was dealt with by NCLT and categorical findings

131

based on evidence was recorded by NCLT. The findings recorded by

NCLT allegationwise, are indicated in paragraph 6.1 above.

16.6 None of the above findings, except the one relating to the

removal of CPM was specifically and individually overturned by

NCLAT. In addition NCLAT focused on the conversion of Tata Sons

from a public company to a private company.

16.7 For easy appreciation, we present in the following table,

the allegations made in the complaint, the findings recorded by

NCLT with an indication whether NCLAT dealt with the same or not:

Allegation Findings of NCLT Whether NCLAT dealt

with it specifically

Siva Group Co. –

1. Non-payment

of due amount by

Siva Group

(Sterling) as per

arbitral award in

TTSL-NTT

DoCoMo deal

(para 218-234)

2. Acquisition of

shares in TTSL

by Siva and

Temasek

3. Info leak

pertaining to

1. On 03.10.2013, Siva wrote

a letter to CPM seeking an

exit from TTSL in lieu of the

financial strain it was facing.

On 08.10.2013, RNT wrote to

CPM requesting him to meet

Siva to discuss the

predicament, in lieu of

latter’s previous

contributions in the history of

TTSL. However, this was

three years before the

Docomo issue, which cropped

up in 2016. (Para 222, 233)

2. The loan given by one of

No specific finding.

132

initiation of

action against

Siva

4. Acquisition of

Dishnet DSL

(DDSL) from

Siva Group

the Tata Group Companies

(Kalimati) to Siva Company

was paid back and

undertaking given by the

company was released. Siva

himself provided personal

guarantee for the loan taken

from Standard Chartered

Bank. Moreover, no Tata

Group company paid any

money for acquisition of

TTSL shares by Siva Group.

(Para 228)

3. Ultimately, Siva had to pay

its group pro-rata share of

the Docomo award. Siva, on

19.09.2016, then sought

damages from Tata Sons for

the alleged mismanagement

of TTSL, for the ensuing

losses incurred by it.

However, this did not prove

any special relationship with

RNT.(Para 221, 230,

233,234)

4. Acquisition price of TTSL

by both Siva and Temasek

had unanimous approval of

the shareholders. (Para 230)

5. Transaction was not done

not behind the back of CPM

and connected parties. (Para

230)

6. The reason for the

difference in the acquisition

prices between Temasek

133

(Rs.26/ share) and Siva

Group (Rs.17/share) was

owing to more shareholding

rights with Temasek. (Para

230)

7. CPM made more profits

from the acquisition of

shares of TTSL than Siva

Group. (the latter had sold its

shares to NTT-Docomo in

2008). Complainant

companies also acquired

shares of Tata Teleservices

Ltd. at Rs. 15/ per share.

(Para 230)

8. NTT-DoCoMo also

acquired shares from brother

and father of CPM. CPM was

also a beneficiary like Siva

but this was not disclosed by

the complainant companies.

The rate at which the

petitioners acquired the

shares of TTSL is less than

the rate at which Siva

acquired them and the gain

made by the petitioners by

selling shares of NTT

DoCoMo was more than the

gain made by the Siva Group.

(Para 230)

9. The acquisition happened

in 2006 and it is sought to

raise after 10 years, during

which period CPM was part

of that board and also the

134

Executive Chairman for a

period.

10. No proof on record to

show leakage of info

11. It was Mr. Nitin Nohria

(Trust Nominee director) and

not CPM, who proposed to

initiate legal action against

Siva. (Para 231)

12. With respect to Tata

Capital giving a loan to Mr.

Siva, due diligence carried

out on the same, and no role

in the grant of this loan can

be attributed to RNT. (Para

234)

13. The acquisition of

Dishnet DSL (DDSL) from

Siva group took place in

2004. CPM has not argued

that he was unaware of this

acquisition. Nor has it been

argued that RNT made any

illicit gain out of it. In fact, it

was commercial decision of

TTSL. This issue was brought

to the notice of CPM way

back in October, 2013, but he

never complained earlier.

(Para 235)

Neither TTSL nor Kalimati

nor Tata Capital were

arrayed as party to the

proceeding.

Air Asia India

Ltd. &Vistara:-

Air Asia not made a party.

At the time when resolution

No specific finding.

135

Diversion of

funds through a

Global terrorist.

for Joint Venture was placed

on 06.12.2012, CPM was

active in discussions and was

a consenting party to the

same. The said Joint Venture

was incorporated on

28.03.2013 and CPM did not

raise any issue till his

removal in 2016. (Para 242-

244)

CPM contends that the deal

was struck with Mr. Hamid

Reza Malakotipour who was

classified as a Global

terrorist by the United

Nations. However, the

allegation of indirectly

financing terrorism through

the involvement of such third

parties, is serious and

demeaning. (Para 241)

After claiming that he has no

say in the AirAsia

transactions, CPM claims to

have protected the interest of

the company by limiting its

exposure and ensuring no

fallback liability. These two

claims conflict with each

other. (Para 242)

With respect to the Joint

Venture with Singapore

Airlines to set up Vistara, all

Air Asia decision are fait

accompli upon him, and thus,

he is estopped from denying

136

knowledge regarding these

transactions. (Para 244)

It would be preposterous to

allege that RNT funded a

terrorist through hawala with

diversion of AirAsia India

funds. (Para 245)

Mehli Mistry:-

1. Awarding of

dredging and

Shipping

contracts

(without tenders)

to Mehli’s

Companies by

Tata Power.

2. Purchase of

agricultural land

by RNT at

Alibaug in 1993

where Aqua

Farms (in which

Mr. Mehli was a

partner) was a

confirming party

to the sale deed.

3. Sale of

Bakhtawar

Apartment at

Colaba to

MPCPL (which

belongs to

The contract for dredging at

Trombay was awarded in

1993 and renewed for

various tenures (5 times)

from 2002 – 2014. CPM held

directorship of Tata Power

from 1996-2006 & 2011-

2016, but never raised any

objection. (Para 258)

2004 barging cum dredging

contract – with regard to the

award of contract by Tata

Power to MPCL, there is

nothing on material to prove

that this caused loss to TPC.

(Para 259)

2006 Shipping Contract

awarded by Tata Power to a

consortium (comprising of

MPSPL and Mercator Lines

Ltd.) – Letter written by Mr.

Mehli to Tata Power dated

04.05.2013 pertained to issue

of coal storage, which does

not prove any expropriation

or bullying by him. Since, the

company of Mr. Mehli was

the contractor, he only wrote

No specific finding.

137

Forbes Gokak

Ltd.)

to Tata Power to ensure

proper coordination and joint

decision making to sustain a

smooth supply chain to

Trombay Power house. (Para

263)

This (Alibaug) was a regular

transfer that took place in

1993. Previously, Aqua Farms

had made payments to the

original landowner for

purchase, but the sale deed

did not fructify. Aqua Farms

was made a confirming party,

as RNT reimbursed Aqua

Farms for the original

payment that it had made to

the original land owners.

Simply put, the moment RNT

reimbursed Aqua Farms, the

vendors of the land would

execute the sale deed in

favour of RNT. This was a

mere sale transaction

between two parties, which

cannot be used to argue that

contracts were bestowed to

Mr. Mehli(Para 253)

No unjust enrichment of RNT

at the cost of Company –

Forbes Gokak Ltd. not

arrayed as a party –

138

Allegation raised in 2016 of

the events which can be

traced back to 2002 – This

was not a company related

affair, as RNT retired from

the company and has not

been in management since

2012 – Not a case falling

under 241. (Para 252)

Corus

acquisition

The allegation that Tata Steel

acquired Corus at an inflated

price is without basis. (Para

301)

The price quoted by Tata

Steel was GBP 608 Pence per

share, while their

competitors’ final bid was

GBP 603 Pence per share.

(Para 301)

Acquisition of Corus was a

collective decision by Tata

Steel. CPM (Director at Tata

Steel) approved every

resolution of Tata Steel, for

entering into auction and for

confirming the final

acquisition share price.

Acquisition was undertaken

following due governance

process under the

supervision of the Board,

without any dissent of

shareholders of Tata Steel.

(Para 300)

No specific finding.

139

To salvage the company from

the losses incurred from the

Corus acquisition, TSL

entered into a merger with

ThyssenKrupp. There is no

material to prove that RNT

had any role in preventing

the same. (Para 303)

Moreover, CPM never raised

this issue before the board

when he was chairman.

(Para 305)

TSL has not been made a

party.

Tata Motors –

Nano Project:-

It is well established that

RNT was not in the

management of either Tata

Motors or the company after

retirement. There is not a

single instance where the

advice of RNT was directly

implemented without

consideration by the

respective Board. (Para

267)

Tata Motors and Jayem Auto

incorporated a Joint Venture.

This happened under the

stewardship of CPM. (Para

275)

CPM never objected over any

visit, correspondence or

investment by RNT in Jayem

Auto. (Para 272)

Merely because Tata Motors

Finance (TMF) had a loss of

No specific finding.

140

Rs. 392 Crores (towards

Nano out of Rs.2000 Crores)

for financing Nano, it cannot

be used to make a case of

mismanagement against

RNT. (Para 280)

With regard to personal visits

of RNT to the Jayem Auto

factory and about the

enquiries sought apropos to

the projects, no personal

benefit to RNT or harm to

Tata Motors has been proved.

(Para 281-282)

No evidence of the UPSI

causing prejudice to the

interest of Tata Motors has

been placed by CPM, upon

whom the burden of proof

was. (Para 284)

Seeking information does not

amount to conducting affairs

of the company. (Para 285)

The correspondences of RNT

to CPM regarding the supply

of cars to Ola/ Uber, were

done to try to get into

business with either of the

two. (Para 290-293)

Wellspun

Acquisition by

Tata Power

Since the acquisition of

Welspun was not put up to

the Board of Tata Sons for

prior approval and it came up

only after Tata Power had

signed the papers for

No specific finding.

141

acquisition, making Tata

Sons a fait accompli, the

nominee directors had to

indulge in consultations and

the same did not tantamount

to interference by the Trusts.

(Para 384, 385, 543)

The oppressive

nature of Articles

104B, 121, 121A

and 75

CPM’s father was a director

at the time when

amendments were made to

the Articles of Association on

13/09/2000. (Para 371)

Article 118 was amended on

06/12/2012 when CPM was

chairman. (Para 372)

CPM was also a party to the

resolution passed on

09/04/2014, amending the

articles so as to confer

affirmative rights in favour of

the Trust-Nominated

directors. (Para 373)

Article 75 was always in

existence and neither CPM

nor his father nor the

complainant companies ever

made a complaint. (Para

393)

No specific finding.

The provision in

the Articles of

Association

entitling the two

trusts to have

1/3 of the

The two Trusts, if they really

wished, could have had the

Board of Directors entirely

with their nominees. But they

allowed the Articles of

Association only to have the

No specific finding.

142

directors with

affirmative vote,

is prejudicial to

the interests of

the members and

the interests of

the company

minimum requirement and

hence the same cannot be

termed as oppressive of the

minority. (Para 419)

16.8 NCLAT, being an Appellate Tribunal, conferred with the

power under subSection (4) of Section 421 to confirm, modify or

set aside the order of NCLT, can be taken to be a final court of fact.

An appeal from the Order of the NCLAT to this Court under Section

423 is only on a question of law. Considering the nature of the

jurisdiction conferred upon NCLAT, it is clear that the findings of

the NCLT, not specifically modified or set aside by NCLAT should be

taken to have reached finality, unless the parties aggrieved by such

noninterference by NCLAT have approached this Court, raising this

as an issue. Though SP group has also filed an appeal in C.A. No.

1802 of 2020, the grievance aired therein, as seen from para 3 of

the memorandum of appeal, is limited to the failure of NCLAT to

grant certain reliefs. The failure of NCLAT to specifically overturn

143

the findings of fact recorded by NCLT, is not assailed in the SP

group’s appeal. Therefore, we have no hesitation in holding that the

allegations relating to

(i) transactions with Siva and Sterling Group of Companies;

(ii) Air Asia;

(iii) Transactions with Mehli Mistry;

(iv) the losses suffered by Tata Motors in Nano car project;

and

(v) the acquisition of Corus

reached finality.

16.9 The findings recorded by NCLAT for the grant of reliefs,

revolved primarily around the removal of CPM, the affirmative

voting rights, interference by nominee Directors and the conversion

of Tata Sons into a private company. In other words, these are the 4

areas in which NCLAT can be taken to have undertaken a scrutiny

and reversed the findings of NCLT. Therefore, for answering the first

question of law, we need to focus mainly on these issues on which

NCLAT expressly overruled NCLT.

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16.10 Out of these 4 specific issues on which NCLAT overruled

NCLT, 3 issues will also be covered in our discussion on questions

of law 4 and 5.. Therefore, we shall take up in this chapter, the

question (i) whether the removal of CPM could have been the basis

for the allegation that the company’s affairs have been or are being

conducted in a manner oppressive or prejudicial to the interests of

some of the members and (ii) whether the findings recorded by

NCLAT about the existence of just and equitable clause is in

accordance with the well established principles of law.

Removal of CPM

16.11 CPM was first removed only from the post of Executive

Chairman of Tata Sons, but not from the Directorship, by the

resolution of the Board dated 24.10.2016. This acted as the trigger

point for CPM, to launch an offensive. On the very next day namely

25.10.2016, CPM wrote a mail alleging total lack of corporate

governance and failure on the part of the directors to discharge

their fiduciary duties. He also called all the Trust nominee directors

145

as postmen. Though the mail was labelled as ‘confidential’, a copy

of the mail landed up with the media creating a “sensation”. NCLT

recorded a finding that CPM who owes a duty to explain this

leakage of confidential mail, could not provide a satisfactory answer

and that therefore, by virtue of section 106 of the Evidence Act, the

leakage has to be traced to CPM. NCLAT did not overrule this

finding.

16.12 The mail compelled Tata sons to issue a Press Statement

on 10.11.2016. This was followed by the removal of CPM from the

Directorship of Tata Industries Limited, Tata Consultancy Services

Limited and Tata Teleservices Limited, all of which happened during

the period from December 12 to December 14, 2016. Seeing clearly

the course of destiny (which was actually set in motion by none

other than himself), CPM resigned from other operating companies

of Tatas such as The Indian Hotels Company Limited, Tata Steel

Limited, Tata Motors Limited, Tata Chemicals Limited and Tata

Power Limited, on 19.12.2016, on the eve of the Extraordinary

146

General Meetings of those companies, convened for considering

resolutions for his removal. On the very next day namely,

20.12.2016 the complainant companies, of which CPM is the pivot,

filed a petition C.P.No.82 of 2016 before NCLT, Mumbai, under

Sections 241 and 242 read with Section 244 of the Companies Act,

2013.

16.13 Around this time, as if by coincidence, the Principal

Officer of Tata Sons received a letter dated 29.11.2016 from the

Deputy Commissioner of Income Tax (Exemptions) seeking certain

information under Section 133(6) of the Income Tax Act, 1961 in

the case of Tata Education Trust. Tata Sons, through a reply dated

09.12.2016 furnished necessary information along with the

requested documents. The Deputy Commissioner of Income Tax

also called for some additional information by subsequent letters,

and the information so called for, was also furnished.

16.14 Claiming that a mail dated 20.12.2016 issued by the

Deputy Commissioner of Income Tax seeking further information

147

under Section 133(6) was copymarked to him, CPM sent a reply to

the Income Tax department confirming (i) that the Directors

appointed by Tata Trust controlled the decision making processes

by virtue of the affirmative voting rights; (ii) that RNT and

Soonawala have on many occasions sought prior information and

consultation; (iii) that the conduct of the Trustees posed several

regulatory risks; and (iv) that the office of RNT, in his capacity as

Chairman Emeritus was funded by Tata Sons, including the cost of

his overseas travel by private jet. To this letter to the Deputy

Commissioner of Income Tax was enclosed certain files purportedly

containing the information sought.

16.15 Upon coming to know of CPM’s letter to the Deputy

Commissioner of Income Tax, Tata Sons lodged a protest through a

letter dated 26.12.2016. It was followed by a legal notice issued by

Tata Sons to CPM on 27.12.2016 pointing out that he was guilty of

breach of confidentiality and that he had passed on confidential

and sensitive information contained in 4 box files, without any

148

authority. CPM sent a legal reply dated 05.01.2017 claiming that he

had a statutory obligation to cooperate with Income Tax authorities.

As if to display his courage of conviction, CPM sent another letter

dated 12.01.2017 to the Deputy Commissioner of Income Tax

sending one more file and assuring the authorities that he would

continue to check the records and submit any additional

data/information as and when available.

16.16 In the light of whatever transpired as narrated above, a

“Special Notice and Requisition” was moved on 03.01.2017

convening an EGM of Tata Sons for considering the removal of CPM

as Director of Tata sons. It must be remembered at this stage that

by the Resolution of the Board of Tata Sons dated 24.10.2016, CPM

was merely removed from the post of Executive Chairman, but he

continued to be a member of the Board as a Non Executive Director

even after 24.10.2016. It must also be remembered that it was

during his continuance as the member of the Board that CPM

exchanged correspondence/legal notice with Tata Sons and also

149

passed on information along with certain files, to the Income Tax

authorities claiming to be a very “law abiding citizen”.

16.17 Since the EGM of Tata sons was scheduled to be held on

06.02.2017, for considering the resolution for CPM’s removal from

the Directorship, the Companies (S.P. Group) which filed the

complaint before the NCLT moved an interim application before

NCLT for a stay of the EGM. NCLT declined stay and the appeal

against the refusal to grant stay was also dismissed by NCLAT.

Therefore, the EGM proceeded as scheduled on 06.02.2017 and

CPM was removed from the Directorship of Tata Sons. In his place

Mr. N. Chandrasekharan, was appointed as Executive Chairman.

16.18 In the Company Petition as it was originally filed on

20.12.2016, the complainant companies had sought a set of 21

reliefs, one of which was for a direction to the respondents (the

company and its directors) not to remove CPM (who was cited as R11 in the original petition) from the directorship of Tata Sons. This

was in prayer clause (F) of Paragraph 153 of the main company

150

petition. This prayer was in direct contrast to the reliefs sought in

prayer clauses (A) and (B). Prayer clause (A) was for superseding the

existing Board of Directors and appointment of an Administrator.

Prayer in clause (B) was for appointment of a retired Supreme Court

Judge as Non Executive Chairman and for appointment of a new set

of independent Directors.

16.19 After the dismissal of the interim application moved for

stalling the EGM scheduled to be held on 06.02.2017 and after the

passing of the resolution for the removal of CPM in the EGM held

on 06.02.2017, the complainant companies moved an application

for amendment of the original petition so as to include two

additional prayers namely (i) reinstatement of the representative of

the complainant companies on the Board of Tata Sons; and (ii)

amendment of the Articles of Association to provide for proportional

representation.

16.20. However, eventually the prayers made in clauses (A), (B)

and (C) were not pressed. Prayers in clauses (F), (Q) & (R) were also

151

not pressed on the ground that they had become infructuous. In

Paragraph 3.4 above we have extracted the reliefs as originally

sought in the main company petition and in the table in Paragraph

4.11 we have indicated the prayers additionally made and the reliefs

either given up or sought to be modified.

16.21 In fact the real reason why the complainant companies

thought fit, quite tactfully, not to press for the reinstatement of

CPM is that the mere termination of Directorship cannot be

projected as something that would trigger the just and equitable

clause for winding up or to grant relief under Sections 241 and 242.

A useful reference can be made in this regard to the decision of this

Court in Hanuman Prasad Bagri & Ors. vs. Bagress Cereals

Pvt. Ltd.

16.22 It must be remembered : (i) that a provision for inclusion

of a representative of small shareholders in the Board of Directors,

is of a recent origin under Section 151 of the Companies Act, 2013

2 (2001) 4 SCC 420

152

and it is applicable only to a listed company; (ii) that Tata sons is

not a listed Company; (iii) that the Articles of Association of Tata

sons, to which the complainant companies, CPM and his father had

subscribed, do not provide for any representation; (iv) that despite

there being no statutory or contractual obligation, Tata Sons

inducted CPM’s father as a director on the board in the year 1980

and continued him for a period of almost 25 years; (v) that CPM

himself was inducted, again without reference to any statutory or

contractual obligation, as a Director on the Board in August, 2006;

and (vi) that within 6 years of such induction, CPM was identified

as a successor to RNT and was appointed as Executive Deputy

Chairman and elevated to the position of Executive Chairman.

16.23 It is an irony that the very same person who represents

shareholders owning just 18.37% of the total paid up share capital

and yet identified as the successor to the empire, has chosen to

accuse the very same Board, of conduct, oppressive and unfairly

prejudicial to the interests of the minorities. In support of such

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allegation, the complainant companies have pointed out certain

business decisions taken during the period of more than 10 years

immediately preceding the date of removal of CPM. That failed

business decisions and the removal of a person from Directorship

can never be projected as acts oppressive or prejudicial to the

interests of the minorities, is too well settled. In fact it may be

concede today by Tata sons that one important decision that the

Board took on 16.03.2012 certainly turned out to be a wrong

decision of a life time.

16.24 Therefore, the fact that the removal of CPM was only from

the Executive Chairmanship and not the Directorship of the

company as on the date of filing of the petition and the fact that in

law, even the removal from Directorship can never be held to be an

oppressive or prejudicial conduct, was sufficient to throw the

petition under section 241 out, especially since NCLAT chose not to

interfere with the findings of fact on certain business decisions.

154

16.25 The subsequent conduct on the part of CPM in leaking

his mail dated 25102016 to the Press and sending replies to the

Income Tax Authorities enclosing 4 box files, even while continuing

as a Director, justified his removal even from the Directorship of

Tata Sons and other group companies. A person who tries to set his

own house on fire for not getting what he perceives as legitimately

due to him, does not deserve to continue as part of any decision

making body (not just the Board of a company). It is perhaps this

realisation that made the complainant companies give up their

original prayer for restraining the company from removing CPM and

singing a different tune seeking proportionate representation on the

Board.

16.26 For assailing the decision to remove CPM from the

Chairmanship of Tata Sons, it is contended (i) that Tata Group

performed exceedingly well under his stewardship; (ii) that the

Nomination and Remuneration Committee for the Financial Year

201516 endorsed his performance and even recommended a pay

155

hike and performance linked bonus; and (iii) that the Board

unanimously approved these recommendations on 29.6.2016 just

four months before his unceremonious removal.

16.27 First of all, the above contention is in direct conflict with

the entire foundation on which the whole case of the complainant

companies was erected. If CPM and the members of the Nomination

and Remuneration Committee as well as the entire Board were on

the same page till 29.6.2016 that the company was doing well

under the stewardship of CPM, then there can be no allegation that

the company’s affairs were conducted in a manner oppressive or

prejudicial to the interest of anyone, namely the company or the

minority, at least until 29.6.2016. On the contrary if the company’s

affairs have been conducted in a manner oppressive or prejudicial,

even before 29.6.2016, the other members of the Board and CPM

could not have formed themselves into a mutual admiration society

to laud CPM’s performance and CPM acknowledging that the

company was doing well when he was in the driver’s seat.

156

16.28 An important aspect to be noticed is that in a petition

under Section 241, the Tribunal cannot ask the question whether

the removal of a Director was legally valid and/or justified or not.

The question to be asked is whether such a removal tantamount to

a conduct oppressive or prejudicial to some members. Even in cases

where the Tribunal finds that the removal of a Director was not in

accordance with law or was not justified on facts, the Tribunal

cannot grant a relief under Section 242 unless the removal was

oppressive or prejudicial.

16.29 There may be cases where the removal of a Director

might have been carried out perfectly in accordance with law and

yet may be part of a larger design to oppress or prejudice the

interests of some members. It is only in such cases that the

Tribunal can grant a relief under Section 242. The Company

Tribunal is not a labour Court or an administrative Tribunal to

focus entirely on the manner of removal of a person from

Directorship. Therefore, the accolades received by CPM from the

157

Nomination and Remuneration Committee or the Board of Directors

on 29.6.2016, cannot advance his case.

16.30 A contention was raised that CPM’s removal was a premeditated act, carried out at the behest of Tata Trusts and RNT and

that the removal was not only contrary to Article 118, but also

contrary to Article 105(a) read with the second proviso to Section

179(1) and Article 122(b).

16.31 As we have pointed out above, the validity of and

justification for the removal of a person can never be the primary

focus of a Tribunal under Section 242 unless the same is in

furtherance of a conduct oppressive or prejudicial to some of the

members. In fact the post of Executive Chairman is not statutorily

recognised or regulated, though the post of a Director is. At the cost

of repetition it should be pointed out that CPM was removed only

from the post of (or designation as) Executive Chairman and not

from the post of Director till the Company Petition was filed. But

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CPM himself invited trouble, by declaring an all out war, which led

to his removal from Directorship.

16.32 It is true that as per the evidence available on record he

was requested before the Board meeting, to step down from the post

of Executive Chairman. That does not tantamount to the act being

premeditated. The induction of new members on 8.8.2016 into the

Board and the Board securing a legal opinion prior to the Board

meeting, cannot make the act a premeditated one. There is a thin

line of demarcation between a wellconceived plan and a premeditated one and the line can many times be blurred.

16.33 Article 118 around which arguments were advanced

reads as follows:

“118. APPOINTMENT OF CHAIRMAN

For the purpose of selecting a new Chairman of the Board of

Directors and so long as the Tata Trusts own and hold in the

aggregate at least 40% of the paid up Ordinary Share Capital

of the Company for the time being, a Selection Committee

shall be constituted in accordance with the provisions of this

Article to recommend the appointment of a person as the

159

Chairman of the Board of Directors and the Board may

appoint the person so recommended as the Chairman of the

Board of Directors, subject to Article 121 which requires the

affirmative vote of all Directors appointed pursuant to Article

104B.

The same process shall be followed for the removal of the

incumbent Chairman.

The Selection Committee shall comprise – (a) Three (3) persons

nominated jointly by the Sir Dorabji Tata Trust and the Sir

Ratan Tata Trust who may or may not be Directors of the

Company, (b) one (1) person nominated by and from amongst

the Board of Directors of the Company and (c) one (1)

independent outside person selected by the Board for this

purpose.

The Chairman of the Committee will be selected by the Sir

Dorabji Tata Trust and the Sir Ratan Tata Trust from amongst

the nominees nominated by the Trusts.

The quorum for a meeting of the Selection Committee shall be

the presence of a majority of members nominated jointly by

the Sir Dorabji Tata Trust and the Sir Ratan Tata Trust.

Explanation: The words “nominated jointly’ used in this

Article shall mean that the Sir Dorabji Tata Trust and the Sir

Ratan Tata Trust shall together decide the nominees. In the

case of any difference, the decision of the majority of the

Trustees in the aggregate of the Sir Dorabji Tata Trust and the

Sir Ratan Tata Trust shall prevail.”

16.34 The sentence in Article 118 reading “the same process

shall be followed for the removal of incumbent Chairman” actually

goes along with the last limb of the portion immediately preceding

this line. It deals with the appointment of a person as Chairman,

160

pursuant to the recommendation of a Selection Committee, subject

to Article 121 which requires the affirmative vote of the Directors

appointed in terms of Article 104B.

16.35 It is absurd to interpret Article 118 to mean that

Selection Committee is to be constituted for the removal of an

incumbent Chairman. The necessity for taking recourse to the

affirmative voting right under Article 121 is what is meant by the

expression “the same process” appearing in the second part of

Article 118.

16.36 The argument pitched upon Article 105(a) is also

completely unfounded. Article 105(a) deals with the power of the

Board to appoint a Managing Director, Joint/Deputy Managing

Director or Whole Time Director. The provision relating to Executive

Chairman is not to be found in Article 105(a) but in Article 105(b)

which reads as follows:

“The Board shall have the power to designate the Chairman

of the Board as the Executive Chairman and pay him such

remuneration as, in their opinion, they deem fit”.

161

Therefore, the argument on the basis of Article 105(a) is illfounded.

16.37 The contention that the removal was in violation of the

second proviso to Section 179(1) read with Article 122(b) is also illconceived. The second proviso to Section 179(1) prohibits the Board

from exercising any power that could be exercised by the company

only in a General Meeting. Article 122(a) is only a reiteration of the

principle behind the second proviso to Section 179(1). Article 122(b)

says that the Board may exercise all such powers as are not

required to be exercised by the company in General Meeting. The

designation of a person as Executive Chairman, is not one of

the functions to be performed in a general meeting, either under the

Act or under the Articles of association.

16.38 It is also contended that no advance notice of his removal

was given to CPM and no agenda item was placed in advance in

terms of Article 121B, which reads as follows:

“121B. Any Director of the Company will be entitled to give at

least fifteen days notice to the Company or to the Board that

any matter or resolution be placed for deliberation by the

Board and if such notice is received it shall be mandatory for

the Board to take up such matter or resolution for

162

consideration and vote, at the Board meeting next held after

the period of such notice, before considering any other matter

or resolution.”

16.39 We do not know how Article 121B is sought to be

invoked. It deals with a situation where a Director wants to bring

up any matter or resolution before the Board. It has no relevance to

the agenda that the Board wants to take up. Even according to the

complainant companies, the Directors of a Company have a

fiduciary relationship. It is a relationship in which one party places

special trust, confidence and reliance on another. It is claimed by

the appellants (Tata Group) that the removal of CPM was as a result

of lack of confidence and trust in him. By his own subsequent

conduct, CPM unfortunately enhanced the firepower of the

management of Tata Sons, with regard to their claim relating to lack

of confidence and trust.

16.40 The decision in Central Bank of India Ltd. vs. Hartford

Fire Insurance Co. Ltd.3

is relied upon by the S.P. Group to

3 AIR 1965 SC 1288

163

contend that the power of removal of a Director is subservient to the

agreed duration of office. But the decision in Central Bank of India

arose out of the termination of a fire insurance policy. It had

nothing to do with the removal of a Director. But a decision of the

King’s Bench in Nelson vs. James Nelson4

was relied upon in the

said case to assail the termination of the insurance policy. After

pointing out that Nelson was a case where the termination assailed

was that of the services of the Managing Director and that the

contract of his appointment did not provide for his termination

except on the condition of his ceasing to be a Director, this Court

rejected the citation in Central Bank of India on the ground that it

had no relevance to the termination of a policy of insurance.

16.41 The decision in M.I. Builders Pvt. Limited vs. Radhey

Shyam Sahu & Others5

, to the effect that an important issue

cannot be decided under the residuary agenda item “any other

item”, will not also go to the rescue of the complainant companies,

4 19142K.B. 770

5 (1999) 6 SCC 464

164

since the matter in M.I. Builders concerned the permission granted

by the Municipal Corporation to a builder to construct an

underground shopping complex in a park. The Court found the

decision taken by the Mahapalika to be in clear breach of Sections

91 and 119 of the U.P. Municipal Corporation Act, 1959. Therefore,

the said decision has no application.

16.42 In any event the removal of a person from the post of

Executive Chairman cannot be termed as oppressive or prejudicial.

The original cause of action for the complainant companies to

approach NCLT was the removal of CPM from the post of Executive

Chairman. Though the complainant companies padded up their

actual grievance with various historical facts to make a deceptive

appearance, the causa proxima for the complaint was the removal of

CPM from the office of Executive Chairman. His removal from

Directorship happened subsequent to the filing of the original

complaint and that too for valid and justifiable reasons and hence

165

NCLAT could not have laboured so much on the removal of CPM, for

granting relief under Sections 241 and 242.

Invocation of just and equitable clause

16.43 Interestingly, NCLAT has recorded a finding, though not

based upon any factual foundation, that the facts otherwise justify

the making of a winding up order on just and equitable ground. But

as held by the Privy Council in Loch v. John Blackwood6

, “there

must lie a justifiable lack of confidence in the conduct and

management of the company’s affairs, at the foundation of

applications for winding up.” More importantly, “the lack of

confidence must spring not from dissatisfaction at being outvoted on

the business affairs or on what is called the domestic policy of the

company”. But, “wherever the lack of confidence is rested on a lack

of probity in the conduct of the company’s affairs, then the former is

justified by the latter.”

6 [1924] AC 783

166

16.44 A passage from the opinion of Lord President of the Court

of Session (Lord Clyde) in Baird v. Lees 7

, quoted in Loch (supra),

reads as follows:

“A shareholder puts his money into a company on certain

conditions. The first of them is that the business in which he

invests shall be limited to certain definite objects. The second

is that it shall be carried on by certain persons elected in a

specified way. And the third is that the business shall be

conducted in accordance with certain principles of commercial

administration defined in the statute, which provide some

guarantee of commercial probity and efficiency. If

shareholders find that these conditions or some of them are

deliberately and consistently violated and set aside by the

action of a member and official of the company who wields an

overwhelming voting power, and if the result of that is that,

for the extrication of their rights as shareholders, they are

deprived of the ordinary facilities which compliance with the

Companies Acts would provide them with, then there does

arise, in my opinion, a situation in which it may be just and

equitable for the Court to wind up the company.”

16.45 If the above tests are applied, the case on hand will not

fall anywhere near the just and equitable standard, for the simple

reason that it was the very same complaining minority whose

representative was not merely given a berth on the Board but was

also projected as the successor to the Office of Chairman.

7 (1924) SC 83 Scottish Supreme Court

167

16.46 In Ebrahimi v. Westbourne Galleries Ltd.8

, decided by

House of Lords, one of the Directors who was voted out of office by

the other two Directors (fatherson duo) petitioned for an order

under Section 210 of the English Companies Act, 1948. The very

relief sought by the ousted director was for a direction to the other

two persons to purchase his shares in the Company or to sell their

shares to him on such terms as the Court should think fit.

Alternatively, he prayed for winding up. The Court of the first

instance held that a case for winding up had been made out, as the

majority was guilty of abuse of power and a breach of good faith

which the partners owed to each other not to exclude one of them

from all participation in the business. The court of Appeal reversed

it by applying the tests of (i) bonafide exercise of power in the

interest of the company; and (ii) whether a reasonable man could

think that the removal was in the interest of the Company. While

reversing the decision of the Court of Appeal, the House of Lords

8 [1972] 2 WLR 1289

168

held, that “the formula ‘bonafide interest of the company’

should not become little more than an alibi for a refusal to

consider the merits of the case.” Holding that, “equity always

does enable the Court to subject the exercise of legal rights to

equitable considerations namely considerations that is of a

personal character”, the House of Lords added some caution in

the following words:

“The superimposition of equitable considerations requires

something more, which typically may include one, or probably

more, of the following elements: (i) an association formed or

continued on the basis of a personal relationship, involving

mutual confidence – this element will often be found where a

preexisting partnership has been converted into a limited

company; (ii) an agreement, or understanding, that all, or

some (for there may be “sleeping” members), of the

shareholders shall participate in the conduct of the business;

(iii) restriction upon the transfer of the members’ interest in the

company – so that if confidence is lost, or one member is

removed from management, he cannot take out his stake and

go elsewhere.”

16.47 But it must be remembered that the origin of just and

equitable clause is to be traced to the Law of Partnership which has

developed, according to the House of Lords, “the conceptions of

169

probity, good faith and mutual confidence”. Having said that,

Ebrahimi pointed out that the reference to quasi partnerships or

“insubstance partnerships” is also confusing for the reason that

though the parties may have been partners in their ‘Purvashrama’,

they had become comembers of a company accepting new

obligations in law. Therefore, “a company, however small,

however domestic, is a company and not a partnership or even

a quasi partnership”.

16.48 That, “for superimposing an equitable fetter on the

exercise of the rights conferred by the Articles of Association, there

must be something in the history of the company or the

relationship between the shareholders”, is fairly well settled9

16.49 In Lau v. Chu10

, the House of Lords indicated, “that a

just and equitable winding up may be ordered where the company’s

members have fallen out in two related but distinct situations,

which may or may not overlap”. The first of these is labelled as,

9 Re Saul D. Harrison and Sons Plc. 1994 BCC 475

10 [2020] 1 WLR 4656

170

“functional dead lock”, where the inability of members to cooperate

in the management of the company’s affairs leads to an inability of

the company to function at Board or shareholder level. The House

of Lords pointed out that functional dead lock of a paralysing kind

was first clearly recognised as a ground for just and equitable

winding up In Re Sailing Ship Kentmere Co.11. The second of

these is where a company is a corporate quasi partnership and an

irretrievable breakdown in trust and confidence between the

participating members has taken place. In the first type of these

cases, where there is a complete functional dead lock, winding up

may be ordered regardless whether the company is a quasi

partnership or not. But in the second type of cases, a breakdown of

trust and confidence is enough even if there is not a complete

functional dead lock.

16.50 Therefore, for invoking the just and equitable standard,

the underlying principle is that the Court should be satisfied either

11 [1897] WN 58

171

that the partners cannot carry on together or that one of them

cannot certainly carry on with the other12

16.51 In the case in hand there was never and there could

never have been a relationship in the nature of quasi partnership

between the Tata Group and S.P. Group. S.P. Group boarded the

train halfway through the journey of Tata Sons. Functional dead

lock is not even pleaded nor proved.

16.52 Coming to the Indian cases, this court held in

Rajahmundry Electric Supply Corpn. Ltd. v. Nageshwara Rao13

that for the invocation of just and equitable clause, there must be a

justifiable lack of confidence on the conduct of the directors, as

held. A mere lack of confidence between the majority shareholders

and minority shareholders would not be sufficient, as pointed out in

S.P. Jain v. Kalinga Tubes Ltd.

12 The advantage that the English courts have is that irretrievable breakdown of relationship

is recognised as a ground for separation both in a matrimonial relationship and in

commercial relationship, while it is not so in India.

13 (1955) 2 SCR 1066

14 AIR 1965 SC 1535

172

16.53 It was contended repeatedly that lack of probity in the

conduct of the directors is a sufficient cause to invoke just and

equitable clause. Drawing our attention to the landmark decision in

Needle Industries (India) Ltd. and Ors. v. Needle Industries

Newey (India) Ltd. and ors.

15, it was contended that even the

profitability of the company has no bearing if just and equitable

standard is fulfilled and that the test is not whether an act is lawful

or not but whether it is oppressive or not.

16.54 But all these arguments lose sight of the nature of

the company that Tata Sons is. As we have indicated elsewhere,

Tata Sons is a principal investment holding Company, of which the

majority shareholding is with philanthropic Trusts. The majority

shareholders are not individuals or corporate entities having deep

pockets into which the dividends find their way if the Company

does well and declares dividends. The dividends that the Trusts get

are to find their way eventually to the fulfilment of charitable

15 (1981) 3 SCC 333

173

purposes. Therefore, NCLAT should have raised the most

fundamental question whether it would be equitable to wind up the

Company and thereby starve to death those charitable Trusts,

especially on the basis of uncharitable allegations of oppressive

and prejudicial conduct. Therefore, the finding of NCLAT that the

facts otherwise justify the winding up of the Company under the

just and equitable clause, is completely flawed.

17. Question of Law No.2

17.1 The second question of law arising for consideration is as

to whether the reliefs granted and directions issued by NCLAT

including the reinstatement of CPM into the Board of Tata Sons and

other Tata Companies are in consonance with (i) the pleadings

made, (ii) the reliefs sought and (iii) the powers available under

SubSection (2) of Section 242.

17.2 As we have indicated in Para 3.4 above, the complainant

companies originally sought a set of 21 reliefs listed in para 153 (A)

to (U). Subsequently, the complainant companies sought the

174

addition of two more prayers, through an application for

amendment filed on 10.2.2017. The additional reliefs sought to be

included were for: (i) reinstatement of a representative of the

complainant companies on the Board of Tata Sons and (ii)

Amendment of the Articles of Association so as to provide for

proportional representation on the Board.

17.3 Thereafter the complainant companies sought a few more

prayers through an application for amendment dated 31.10.2017.

However, by a Memo dated 12.01.2018 the complainant companies

gave up certain prayers, sought a modification of some other

prayers and recorded that they were not pressing certain reliefs. At

the cost of repetition, we have to present in a tabular form, the

reliefs originally sought and the metamorphosis that they

underwent through applications for amendment or Memo. It is as

follows:

Reliefs as originally sought in the main

Company Petition

Reliefs that are added, given up or

restricted through Additional

affidavit dated 31102017,

Application for amendment dated

175

31102017 and Memo dated

12.1.2018

(A) Supersede the existing Board of

Directors of Respondent No. 1 and

appoint an administrator to look after

the daytoday affairs of Respondent No.

1 with such powers as may be necessary

to take such decisions and actions, in

the facts and circumstances of the

present case, till such time as a new

Board of Directors of Respondent No. 1 is

constituted;

(B) In the alternative to prayer (A)

above, appoint a retired Supreme Court

Judge as the nonexecutive Chairman of

the Board of Directors of Respondent No.

1 and appoint such number of new

independent directors of professional

competence, reputation and standing to

the Board of Directors of Respondent No.

1 such that these newly appointed

directors constitute the majority of the

Board of Directors of Respondent No. 1;

Chairman” i.e Respondent No. 2 from

attending any meeting of the Board of

Directors of Respondent No. 1, or subcommittee thereof and/or interfering in

the affairs of Respondent No. 1;

(D) restrain Respondent No. 14 from

interfering in the affairs of Respondent

No. 1;

(E) direct Respondent No. 1 not to issue

any securities which results in dilution of

the present paidup equity capital held by

the Petitioners in Respondent No. 1;

(F) direct Respondent No. 1 and/or

Respondent Nos. 2 to 10 and 12 to 22

not to remove Respondent No. 11 as a

director from the Board of Respondent

No.1;

Under Affidavit (31102017)

conversion of Tata Sons from being a

Public Limited Company into a

Private Limited Company is bad

Under Application (31102017)

(M1): Set aside the resolution

passed by the shareholders of

respondent No.1 on September 21,

2017 insofar as it seeks to amend the

Articles of Associations and

Memorandum of Association of

Respondent No.1 for conversion of

Respondent No.1 into a private

company.

(M2): Strike off/Delete Article

75 as the same is a tool in the hands

of the majority shareholders to

oppress the minority; and;

(M3): Pending the final hearing

disposal of the Company Petition, the

effect and operation of the resolution

dated September 21, 2017 be stayed.

(F1): Direct Respondent No.1

and/or Respondent No. 2 to 10 and

12 to 22 to reinstate a representative

of the Petitioners on the Board of

Respondent No.1

(G1): Direct that the Articles of

Association of Respondent No.1 be

amended to provide for proportionate

representation of shareholders on the

Board of Directors of Respondent

No.1

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(G) restrain Respondent No. 1 and/or

Respondent Nos. 2 to 10 and 12 to 22

from making any changes to the Articles

of Association of Respondent No. 1 unless

such changes have been made with the

leave of this Hon’ble Tribunal;

(H) order and investigation into the role

of the Trustees of the Tata Trusts in the

operations of Respondent No. 1 and/or

Tata Group companies as also in the

functioning of the Board of Directors of

Respondent No. 1 and /or Tata Group

companies, and prohibit the Trustees

from interfering in the affairs of

Respondent No. 1 and/or Tata Group

companies;

(I) appoint an independent auditor to

conduct a forensic audit and independent

investigation into transactions and

dealings of Respondent No. 1 with

particular regard to:

(i) all transactions between Mr.

C. Sivasankaran and his business

entities on the one hand, and the

Respondent No. 1 and various Tata

Group companies under the control

of Respondent No. 1 or of which

Respondent No. 1 is the promoter on

the other hand, to determine and

crystallize the breach of trust,

violation of fiduciary duties and

failure to discharge the duty of care,

and fix accountability therefor; and

(ii) all transactions involving Mr.

Mehli Mistry and his associated

entities with Respondent No. 1

and/or Tata Group companies

whereby any unjust enrichment has

been generated in favour of any

these parties;

and submit a report to this

Hon’ble Tribunal such that this

Hon’ble Tribunal can pass such

further orders as may be necessary

Under Memo (12012018)

Prayer M, which sought the

striking of Articles 86, 104(B), 118,

121 and 121A, and striking of a

portion of Article 124, is restricted as

under:

i. The necessity of an

affirmative vote of the

majority of directors

nominated by the Trusts,

which are majority of

shareholders, be deleted;

ii. The Petitioners be entitled to

proportionate representation

on Board of Directors of

Respondent No.1;

iii. The Petitioners be entitled to

representation on all

committees formed by the

Board of Directors of

Respondent No.1; and

iv The Articles of Association be

amended accordingly.

Prayers A, B and C were not

pressed.

Prayers F, Q and R, being infructuous

were not pressed

177

so as to recover from concerned

persons the loss that has been

caused inter alia to the Petitioners

and such findings of the audit and

investigation should be referred by

the Hon’ble Tribunal to the Serious

Fraud Investigation Office of the

Ministry of Corporate Affairs,

Government of India;

(J) Appoint an inspector (under

applicable law) to investigate into the

breach of the SEBI (Prohibition of Insider

Trading) Regulations, 2015, with

particular regard to the breach by

Respondent No. 2 and Respondent No.

14, of the obligation not to procure,

demand or acquire unpublished price

sensitive information and submit a report

to this Hon’ble Tribunal such that this

Hon’ble Tribunal can pass such further

orders as may be necessary and/or refer

the findings of such investigation to the

Serious Fraud Investigation Office of the

Ministry of Corporate Affairs, Government

of India.

(K) direct Respondent No.2 to pay

Respondent No. 1 the amount of unjust

enrichment that has accrued to

Respondent No. 2 on account of

surrender of the subtenancy of the

Bakhtawar flat, along with interest at

such rate as this Hon’ble Tribunal may

deem fit, from the date on which the

Respondent No. 2 was unjustly enriched;

(L) appoint a forensic auditor to reinvestigate the transactions executed by

AirAsia India with entities in India and

Singapore to ascertain whether any

proceeds have been diverted to any secret

bank account of Mr. Venkatraman and to

submit a report to this Hon’ble Tribunal;

such that this Hon’ble Tribunal can pass

such further orders as may be necessary

so as to recover from Mr. Venkatraman

the loss that has been caused inter alia to

178

the Petitioners; and such findings of the

audit should be referred by the Hon’ble

Tribunal to the Serious Fraud

Investigation Office of the Ministry of

Corporate Affairs, Government of India;

(M) strike of Articles numbered 86,

104(B), 118, 121 and 121A in their

entirety and in so far as Article 124 of the

Articles of Association of Respondent No.

1 is concerned, the following portion of

the said Article, which is offending and/or

repugnant, should be deleted: “… Any

committee empowered to decide on

matters which otherwise the Board is

authorised to decide shall have as its

member at least one director appointment

pursuant to Article 104B. The Provisions

relating to quorum and the manner in

which matters will be decided contained I

Articles 115 and 121 respectively shall

apply mutatis mutandis to the

proceedings of the committee. “ from the

Articles of Association of Respondent No.

1; and substitute these articles with such

articles as the nature and circumstances

of this case may require;

(N) direct the Respondents (excluding

Respondent Nos. 4, 10 &11) to bring back

into Respondent No. 1, the funds used by

Respondent No. 1 for acquiring shares of

Tata Motors;

(O) restrain Respondent No. 1 from

initiating any new line of business or

acquiring any new business in existing

lines of business without leave of this

Hon’ble Tribunal and that too only after

the matter is discussed and decided upon

by the Board of Directors of Respondent

No. 1 without applying Article 121 of the

Articles of Association;

(P) restrain the trustees of the Trusts

from interfering in the affairs of

Respondent No. 1 and in the various

companies that form part of the Tata

179

Group;

(Q) restrain the existing Selection

Committee from acting any further

and/or discharging any functions and a

new Selection Committee be appointed.

(R) direct that no candidate selected by

the Selection Committee constituted

pursuant to Article 118 of the Articles of

Association of Respondent No. 1 to be

appointed without leave of this Hon’ble

Tribunal;

(S) direct Respondent No. 1 not to

demand and/or procure any unpublished

price sensitive information from any listed

operating companies within the Tata

Group;

(T) grant interim and adinterim reliefs

in terms of Prayers (A) to (S) above; and

(U) pass such further orders that this

Hon’ble Tribunal may, in the interest of

justice, deem necessary for bringing an

end to the acts of oppression and

mismanagement in the running of

Respondent No. 1.

17.4 Therefore, after all the confusion created by affidavits,

application for amendment and the memo mentioned above, the

reliefs that remained to be considered by NCLT were as follows:

(1) restrain Respondent No. 14 (N.A. Soonawala) from interfering in

the affairs of Respondent No. 1; (Relief clause D)

(2) direct Respondent No. 1 (Tata Sons) not to issue any securities

which will result in dilution of the paidup equity capital; (Relief

clause E)

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(3) restrain the Respondents from making any changes to the

Articles of Association of Respondent No. 1 without the leave of

the Tribunal; (Relief clause G)

(4) order an investigation into the role of the Trustees of the Tata

Trusts in the operations of Respondent No. 1, the Tata Group

companies as also in the functioning of the Board of Directors of

Respondent No. 1 and Tata Group companies, and prohibit the

Trustees from interfering in the affairs of Respondent No. 1 and

Tata Group companies; (Relief clause H)

(5) appoint an independent auditor to conduct a forensic audit and

independent investigation into transactions and dealings of

Respondent No. 1 with particular regard to:

(i) Mr. C. Sivasankaran and his business entities; and

(ii) Mr. Mehli Mistry and his associated entities;

and submit a report to this Hon’ble Tribunal and investigation

should be referred by the Hon’ble Tribunal to the Serious Fraud

Investigation Office of the Ministry of Corporate Affairs,

Government of India; (Relief clause I)

(6) Appoint an inspector (under applicable law) to investigate into

the breach of the SEBI (Prohibition of Insider Trading)

Regulations, 2015. (Relief clause J)

(7) direct Respondent No.2 to pay Respondent No. 1 the amount of

unjust enrichment that has accrued to Respondent No. 2 on

account of surrender of the subtenancy of the Bakhtawar flat;

(Relief clause K)

(8) appoint a forensic auditor to reinvestigate the transactions

executed by Air Asia India with entities in India and Singapore;

(Relief clause L)

181

(9) Read down and amend Articles 86, 104B, 118, 121 and 121A as

well as Article 124 so that:

i. The necessity of an affirmative vote of the majority of

directors nominated by the Trusts, which are majority

of shareholders, be deleted;

ii. The Petitioners be entitled to proportionate

representation on Board of Directors of Respondent

No.1;

iii. The Petitioners be entitled to representation on all

committees formed by the Board of Directors of

Respondent No.1; ((Relief clause M restricted through

memo dated 12012018)

(10) Set aside the resolution passed on 31092017 for amendment of

the Articles and declare the conversion of Tata Sons into a private

company as illegal (Additional Relief sought to be included as clause M1 through Application for amendment)

(11) To delete Article 75 (Additional Relief sought to be included as clause

M2 through Application for amendment)

(12) To reinstate a representative of the petitioners on the Board

(Additional Relief sought to be included as clause F1 through

Application for amendment)

17.5 Out of the aforesaid reliefs that came to stay till the end,

NCLAT granted only certain reliefs, which in simple terms, were as

follows:

182

(i) Setting aside the removal of CPM and directing his

reinstatement both as Executive Chairman of Tata

Sons and as Director of other Tata Companies for

the rest of the tenure.

(ii) Restraining RNT and the nominees of Tata Trust

from taking any advance decision.

(iii) Restraining Tata Sons from exercising its power

under Article 75 against the complainant companies

and other minority members, except in exceptional

circumstances and in the interest of the Company

and that too after recording reasons and informing

the affected parties.

(iv) Setting aside the decision of the Registrar of

Companies recognising Tata Sons conversion into a

Private Company.

17.6 Thus NCLAT granted to the complainant companies (and

indirectly to CPM) four reliefs namely:

(i) reinstatement of CPM;

(ii) declaring Tata Sons as a Public Limited Company;

(iii) restraining the nominee Directors and RNT from

taking any decision in advance and

183

(iv) restraining the invocation of Article 75 except in

exceptional circumstances.

We shall now see whether NCLAT could have granted any of these

reliefs.

Reinstatement of CPM

17.7 Removal and reinstatement are two different things. We

have dealt with the issue of removal of CPM, while answering

question of law No.1, in the context of whether it was part of a

scheme of oppressive and prejudicial conduct. Now we shall deal

with the issue of reinstatement in the context of the contours of

section 242(2) and the nature of the orders that could be passed.

17.8 As we have seen already, the original motive of the

complainant companies, was to restrain Tata Sons from removing

CPM as Director. Subsequently, there was a climb down and the

complainant companies sought what they termed as

“reinstatement” of a representative of the complainant companies.

184

Thereafter, it was modulated into a cry for proportionate

representation on the Board.

17.9 In this background it was repeatedly argued both before

the NCLAT and before this Court that the objective of the litigation

was not to have CPM reinstated, but only to set things right in the

State of Denmark (of which CPM himself was the Premier for 4

years). But interestingly, NCLAT understood what the complainant

companies and CPM actually wanted, though they attempted to

camouflage their intentions with legal niceties. Therefore, despite

there being no prayer for reinstatement of CPM either as a Director

or as an Executive Chairman of Tata Sons, NCLAT directed the

restoration of CPM as Executive Chairman of Tata Sons and as

Director of Tata Companies for the rest of the tenure.

17.10 While granting much more than what the complainant

companies and CPM themselves thought as legally feasible, NCLAT

failed to notice one important thing. The appointment of CPM as

Executive Deputy Chairman of Tata Sons, was to be for a period of

185

5 years from 01.04.2012 to 31.03.2017, subject to the approval of

the shareholders. In the Meeting of the shareholders held on

01.08.2012, the appointment of CPM as Executive Deputy

Chairman was approved and the General Body left it to the Board to

redesignate CPM as Chairman. Accordingly, the Board redesignated CPM as Executive Chairman, with effect from

29.12.2012, by a resolution passed on 18.12.2012.

17.11 The judgment of the NCLAT was passed on 18.12.2019,

by which time, a period of nearly 7 years had passed from the date

of CPM’s appointment as Executive Chairman. Therefore, we fail to

understand : (i) as to how NCLAT could have granted a relief not

apparently sought for (though wished for); and (ii) what NCLAT

meant by reinstatement “for the rest of the tenure”. That the

question of reinstatement will not arise after the tenure of office had

run its course, is a settled position. In this regard, we may refer to

the decisions in Raj Kumar Dey vs. Tarapada Dey16 and Mohd.

16 (1987) 4 SCC 398

186

Gazi vs. State of Madhya Pradesh17

. While so, it is

incomprehensible that the NCLAT directed reinstatement, and that

too, of a Director of a company, after the expiry of his term of office.

Needless to say that such a remedy would not have been granted

even by a labour court/service Tribunal in matters coming within

their jurisdiction.

17.12 In fact NCLAT has gone to the extent of reinstating CPM

not only on the Board of Tata Sons, but also on the Board of Tata

group companies, without they being parties, without there being

any complaint against those companies under section 241 and

without there being any prayer against them. These companies have

followed the procedure prescribed by Statute and the Articles and

they have validly passed resolutions for his removal. For instance,

TCS granted an opportunity to CPM and held a general meeting in

which 93.11% of the shareholders, including public institutions

who hold 57.46% of shares supported the resolution. In any case

CPM’s tenure itself was to come to an end on 16.06.2017 but

17 (2000) 4 SCC 342

187

NCLAT passed the impugned order reinstating him “for the rest of

the tenure”. In respect of other companies which had convened the

EGM for considering the resolution for his removal, CPM submitted

resignations. But now by virtue of the impugned order, CPM will

have to be reinstated even on the Board of companies from which

he has resigned. This is why even the complainant companies have

found it extremely difficult to support the order.

17.13 As an aside, we should record here, the words of

gratitude (if any) expressed by CPM himself in the meeting of the

Board of Tata Sons on 18.12.2012, immediately after the resolution

appointing him as Executive Chairman was carried through

unanimously. This is what CPM said in the Board Meeting dated

18.12.2012:

“Mr. Mistry responded by saying that – “the past one

year has been a great learning experience under the

direct guidance of Mr. Ratan Tata. The TATA Group is

founded on strict values. We will face all the ups

and down, whatever may lie in our path. We are ready

to face all the challenges that will come our way. The

Board recognises the stellar contribution of Mr. Ratan

Tata and wishes, to designate him Chairman Emeritus.

188

We shall continue to seek his guidance on significant

matters.”

17.14 It is interesting to note that at the time of his

appointment in December 2012, what CPM saw and acknowledged,

was a “great learning experience he had under the direct

guidance of RNT”, but at the time of departure in October 2016,

what he saw was only a conduct for over 10 years, that was

oppressive and prejudicial to the interests of the company and of

the minority. NCLAT failed to take note of this, while granting reliefs

neither sought for nor feasible in law.

17.15 NCLAT appears to have granted the relief of

reinstatement gratis without any foundation in pleadings, without

any prayer and without any basis in law. By doing so, the NCLAT

has forced upon the appellant an Executive Chairman, who now is

unable to support his own reinstatement.

17.16 The NCLAT has found the dismissal to be illegal and not

a nullity. In law, a dismissal even if found to be wrongful and

189

malafide is an effective dismissal and may give rise to a claim in

damages. In Dr. S.B. Dutt vs. University of Delhi18 this Court

held:

“The award held that the appellant had been dismissed

wrongfully and malafide. Now, it is not consequential to

such a finding that the dismissal was of no effect, for a

wrongful and malafide dismissal is nonetheless an

effective dismissal though it may give rise to a claim in

damages. The award, no doubt, also said that the

dismissal of the appellant was ultravires but as will be

seen later, it did not thereby hold the act of dismissal to

be a nullity and, therefore, of no effect.”

17.17 It is significant that Sections 241 and 242 of the

Companies Act, 2013 do not specifically confer the power of

reinstatement, nor we would add that there is any scope for holding

that such a power to reinstate can be implied or inferred from any

of the powers specifically conferred.

17.18 The following words at the end of subsection (1) of 242

“the Tribunal may, with a view to bringing to an end the matters

complained of, make such order as it thinks fit” cannot be

interpreted as conferring on the Tribunal any implied power of

18 1959 SCR 1236

190

directing reinstatement of a director or other officer of the company

who has been removed from such office. These words can only be

interpreted to mean as conferring the power to make such order as

the Tribunal thinks fit, where the power to make such an order is

not specifically conferred but is found necessary to remove any

doubts and give effect to an order for which the power is specifically

conferred. For instance, subsection (2) of Section 242 confers the

power to make an order directing several actions. The words by

which subsection (1) of Section 242 ends, supra can be held to

mean the power to make such orders to bring an end, matters for

which directions are given under subsection (2) of Section 242.

17.19 The architecture of Sections 241 and 242 does not permit

the Tribunal to read into the Sections, a power to make an order

(for reinstatement) which is barred by law vide Section 14 of the

Specific Relief Act, 1963 with or without the amendment in 2018.

Tribunal cannot make an order enforcing a contract which is

dependent on personal qualifications such as those mentioned in

191

Section 149(6) of the Companies Act, 2013. Moreover, it has been

held in the case of Vaish Degree College (supra) that the general

rule is that a contract of personal services is not specifically

enforceable unless a person who is removed from service is (a) a

public servant who has been dismissed from service in

contravention of provisions of Article 311 of the Constitution of

India; (b) dismissed under Industrial Law seeking reinstatement by

Labour or Industrial Tribunal; and (c) terminated in breach of a

mandatory obligation imposed by statute by a statutory body. The

Court observed:

“17. On a consideration of the authorities mentioned

above, it is, therefore, clear that a contract of personal

service cannot ordinarily be specifically enforced and a

court normally would not give a declaration that the

contract subsists and the employee, even after having

been removed from service can be deemed to be in

service against the will and consent of the employer.

This rule, however, is subject to three well recognised

exceptions — (i) where a public servant is sought to be

removed from service in contravention of the provisions

of Article 311 of the Constitution of India; (ii) where a

worker is sought to be reinstated on being dismissed

under the Industrial Law; and (iii) where a statutory

body acts in breach or violation of the mandatory

provisions of the statute.”

192

17.20 The position in law that a contract of personal services

cannot be enforced by Court is a long standing principle of law and

cannot be displaced by the existence of any implied power, though

none is shown in the present case. This is described as the

Principle of Legality19:

“As statutes are not enacted in a vacuum, it is

assumed that long standing principles of constitutional

law and administrative law are not displaced by use of

merely general words. This is styled as the principle of

legality. In the words of SIR JOHN ROMILLY: “The

general words of the Act are not to be so construed as

to alter the previous policy of the law, unless no sense

or meaning can be applied to those words consistently

with the intention of preserving the previous policy

untouched.” Since every new law involves some

change the above statement of LORD ROMILLY must

be applied with caution and should be normally

confined to cases where ‘the abrogation of a long

standing rule of law is in question’. There are many

presumptions which an interpreter is entitled to raise

which are not readily displaced merely by use of

general words, e.g., an intention to bind the Crown or

an intention to exclude the supervisory jurisdiction of

superior courts will not be inferred merely by use of

general words. It is an application of the same

principle that unless there be clearest provision to the

contrary, Parliament is presumed not to legislate

contrary to rule of law which enforces ‘minimum

standard of fairness both substantive and procedural’.

Thus a statutory power though conferred in wide terms

has certain implied limitations; provisions excluding

19Principles of Statutory Interpretation 14th Edition by Justice G.P. Singh at Page 541

193

challenge to an order have no application when the

order is a nullity and a provision excluding an appeal

against an order of a criminal court does not bar an

appeal against an order which the court had no power

to make. For the same reason, unless the statute

expressly or by necessary implication provides

otherwise an administrative decision does not take

effect before it is communicated to the person

concerned.”

17.21 It is interesting to note that one of the grounds of

challenge to the order of NCLAT, raised by SP group in their appeal

C.A.No. 1802 of 2020 is that the Tribunal ought not to have granted

the relief of reinstatement. In paragraph 4 of the Memorandum of

Grounds of Civil Appeal C.A. No. 1802 of 2020, the complainant

companies (SP group) have given a tabulation of the reliefs granted

by the Tribunal and the reliefs that the Tribunal ought to have

given instead. Para 4 of the memo of grounds of appeal along with a

portion of the Table there under reads as follows:

“4. Having correctly arrived at these findings, it is submitted that the Ld.

NCLAT ought to have granted the reliefs sought. For ease of reference,

the reliefs granted by the Ld. NCLAT under the various heads of

oppression as against certain key reliefs sought by the Appellants,

which the Ld. NCLAT has not granted and which the appellants are

aggrieved by, are summarized in the tabular form below:

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Reliefs granted by the Ld.

NCLAT

Reliefs that ought to have been

granted by the Ld. NCLAT in

light of the findings rendered

and the reliefs sought for

Ousting of nominee of the SP Group as Director of Tata Sons

R11 should be reinstated as

Executive Chairman and

Director, for the rest of his tenure

of Tata Sons and as Director of

three Tata Group Companies

from whose board he was

removed.

R11 has himself stated clearly

that he had no intent to once again

taken charge of Executive

Chairman and Director of the Tata

Group companies. Given the

nature of Tata Sons being that of a

two group company and the huge

stake that the appellants have in

Tata Sons, the relief that ought to

have been granted was that the

appellants be granted

proportionate representation on the

Board of Directors of Tata Sons

and representation on all

committees formed by the Board of

Directors of Tata Sons.”

17.22 Thus the relief of reinstatement granted by the Tribunal,

was too big a pill even for the complainant companies (and perhaps

CPM) to swallow.

Relief relating to Article 75

17.23 The larger questions revolving around the attack to

Article 75, particularly the question whether the very presence of

such an article could be construed as oppressive and prejudicial to

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some members, will be dealt with in the next chapter concerning

question of law No.3. But we shall consider here, the limited

question whether the Tribunal could have granted a relief, that has

the effect of sending Article 75 into comatose.

17.24 Actually, the relief in respect of Article 75, technically

speaking, could not have been granted by NCLAT. The reason is

that in the Company Petition as it was originally filed, there was no

prayer challenging Article 75. It was only through an application for

amendment dated 31.10.2017 that the complainant companies

sought to incorporate a prayer as Clause M2 for striking off/

deleting Article 75 on the ground that it is a tool in the hands of

majority shareholders to oppress the minority. In the said

application for amendment filed on 31.10.2017, the complainant

companies sought to include five additional prayers, three of them

as Clauses M1, M2 and M3, one of them as Clause F1 and the

last as Clause G1. The prayer for striking off/deleting Article 75

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was sought to be included in Clause M2 of Para 153 of the main

petition.

17.25 But what happened thereafter is quite interesting.

Through a Memo dated 12.1.2018, the complainant companies

sought to “not press” the prayers in Clauses (A), (B), (C), (F), (Q) and

(R). In addition they sought to restrict the prayer in Clause M, as we

have indicated in the table above. There was no indication in the

Memo filed on 12.1.2018 as to whether the prayers included as M1, M2 and M3 inserted under the application for Amendment

dated 31.10.2017 are to be retained, despite their prayer for

restricting the claim made in Clause M.

17.26 It is true that the rigors of CPC and the Evidence Act are

not be applicable to Tribunals/QuasiJudicial Authorities. These

rigours do not even apply to Courts dealing with constitutional

matters (refer the Explanation under Section 141 CPC).

17.27 Such a concession was incorporated in all Statutes by

which quasi judicial Tribunals are created, solely with a view to

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avoid delay in the dispensation of justice. But instead of

eliminating delay, it has eliminated discipline in pleadings

and procedure.

17.28 If it is a Civil Court, the Memo dated 12.1.2018 will be

taken to have superseded whatever had been done till then. In such

a case, there would have been complete lack of clarity whether the

prayer included in Clause M2 survived despite the Memo

restricting prayer made in the ClauseM.

17.29 Even if we take it that the memo dated 12012018

restricted the prayer in clause M alone and not clause M2, NCLAT

could not have muted Article 75 by holding that it cannot be

invoked except in exceptional circumstances. This is for the reason

that after all, Article 75 just provides for an exit option to the

unwilling partner. Even traditionally, the law in England and in

India is to pave the way for a safe and honourable exit, when 2

persons in commercial relationship cannot coexist.

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17.30 In this context, it will be useful to take note of the nature

of the directions that could be issued by a Tribunal, in matters of

this nature, as indicated in Clauses (a) to (m) of Subsection (2) of

Section 242. Subsection (2) of Section 242 has been extracted by

us elsewhere and it shows that what is listed in Clauses (a), (b), (c),

(e), (f) and (g) of Subsection (2) of Section 242 are just the same as

or similar to Clauses (a) to (f) of Section 402 of the 1956 Act.

Clauses (d), (h), (i), (j), (k) and (l) of Subsection (2) of Section 242

are new additions under the 2013 Act.

17.31 Fundamentally, the object for the achievement of which,

the Tribunal is entitled to pass an Order under Section 242(1) of the

2013 Act, remains just the same, as in the 1956 Act. The words

“the Tribunal may, with a view to bringing to an end the

matters complained of, make such order as it thinks fit”, found in

the last limb of Subsection (2) of Section 397 of the 1956 Act, is

also repeated in the last limb of Subsection (1) of Section 242 of

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the 2013 Act. These words also found a place in the last limb of

Subsection (4) of Section 153C of the 1913 Act.

17.32 Even Section 210 of the English Companies Act of 1948

used the very same words namely “the Court may, with a view to

bringing to an end the matters complained of, make such order as it

thinks fit”. Though the English Law made a paradigm shift from

‘oppressive conduct’ to ‘unfairly prejudicial conduct’ under the

Companies Act, 1985, the object to be kept in mind by the Court

while passing an order under Section 461 of the English Companies

Act, 1985 continued to be almost similar. Section 461(1) enabled

the Court to make “such order as it thinks fit for giving relief in

respect of the matters complained of”. Section 996 of the English

Companies Act, 2006 retained the very same wordings.

17.33 Therefore, despite the law relating to oppression and

mismanagement undergoing several changes, the object that a

Tribunal should keep in mind while passing an order in an

application complaining of oppression and mismanagement, has

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remained the same for decades. This object is that the Tribunal, by

its order, should bring to an end the matters complained of.

17.34 In other words the purpose of an order both under the

English Law and under the Indian Law, irrespective of whether the

regime is one of “oppressive conduct” or “unfairly prejudicial

conduct” or a mere “prejudicial conduct”, is to bring to an end the

matters complained of by providing a solution. The object cannot

be to provide a remedy worse than the disease. The object should be

to put an end to the matters complained of and not to put an end to

the company itself, forsaking the interests of other stakeholders. It

is relevant to point out that once upon a time, the provisions for

relief against oppression and mismanagement were construed as

weapons in the armoury of the shareholders, which when

brandished in terrorem, were more potent than when actually used

to strike with. While such a position is certainly not desirable, they

cannot today be taken to the other extreme where the tail can wag

the dog.

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17.35 The Tribunal should always keep in mind the purpose for

which remedies are made available under these provisions, before

granting relief or issuing directions. It is on the touchstone of the

objective behind these provisions that the correctness of the four

reliefs granted by the Tribunal should be tested. If so done, it will be

clear that NCLAT could not have granted the reliefs of (i)

reinstatement of CPM (ii) restriction on the right to invoke Article 75

(iii) restraining RNT and the Nominee Directors from taking

decisions in advance and (iv) setting aside the conversion of Tata

Sons into a private company.

18. Question 3

18.1 The third question of law to be considered is as to

whether NCLAT could have, in law, muted the power of the

company under Article 75 of the Articles of Association, to demand

any member to transfer his shares, by injuncting the company from

exercising the rights under the Article, even while refusing to set

aside the Article.

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18.2 Article 75 of the Articles of Association reads as follows:

“ 75. Company’s Power of Transfer

The Company may at any time by Special Resolution

resolve that any holder of Ordinary shares do transfer

his Ordinary shares. Such member would thereupon be

deemed to have served the Company with a salenotice

in respect of his Ordinary shares in accordance with

Article 58 hereof, and all the ancillary and consequential

provisions of these Articles shall apply with respect to

the completion of the sale of the said shares. Notice in

writing of such resolution shall be given to the member

affected thereby. For the purpose of this Article any

person entitled to transfer an Ordinary share under

Article 69 hereof shall be deemed the holder of such

share.”

18.3 At the outset it should be pointed out that the

complainant companies did not make a grievance out of Article 75

on the ground that it had been misused in the past and that such

misuse tantamount to conduct oppressive or prejudicial to the

interests of some of the members. The sine qua non for invoking

Section 241 is that the affairs of the Company should have been

conducted or are being conducted in a manner oppressive or

prejudicial to some of the members. No single instance even of

invocation of Article 75, leave alone misuse, is averred in the main

company petition or in the application for amendment. Therefore,

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NCLAT could not have and should not have made Article 75

completely ineffective by passing an order of restraint.

18.4 As a matter of fact, NCLAT has agreed, on first principles,

that it has no jurisdiction to declare any of the Articles of

Association illegal. After having set a benchmark correctly, NCLAT

neutralised Article 75 merely on the basis of likelihood of misuse.

Section 241(1)(a) provides for a remedy, only in respect of past and

present conduct or past and present continuous conduct. NCLAT

has stretched Section 241(1)(a) to cover the likelihood of a future

bad conduct, which is impermissible in law.

18.5 That Articles of Association of a company constitute a

contract among shareholders, is the bedrock of Company Law. In

fact, Article 75 was not an invention of the recent origin in Tata

Sons. It has been there for nearly a century in one form or the

other. As we have pointed out elsewhere, the Company was

incorporated in the year 1917 and S.P. Group acquired shares

nearly after 50 years in the year 1965. Even at that time Article 75

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was in existence in a different form. After 1965, Article 75

underwent several rounds of amendments, to which the S.P. Group,

CPM’s father and CPM were parties. CPM himself was a party to an

amendment made to Article 75 on 13.09.2000. The Article in its

present form was made only on 13.09.2000 and the amendment

was unanimously carried through in the presence of and with the

consent of CPM.

18.6 A person who willingly became a shareholder and thereby

subscribed to the Articles of Association and who was a willing and

consenting party to the amendments carried out to those Articles,

cannot later on turn around and challenge those Articles. The same

would tantamount to requesting the Court to rewrite a contract to

which he became a party with eyes wide open.

18.7 It is not as though CPM or his father who was also a

Director for nearly 25 years, were not aware of or blind to the

existence of Article 75. In fact, in the application for amendment

filed by the complainant companies on 31.10.2017, seeking to

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incorporate a challenge to Article 75, the complainant companies

stated as follows:

“…In as much as no occasion had arisen in

exercise of the said Article, the petitioners i.e.,

Respondent Nos. 1 and 2 had taken a conscious

decision not to challenge the same. Respondent

Nos. 1 and 2 now foresee a real and immediate threat

of this Article being misused”

The above pleading on the part of the complainant companies was

sufficient to throw the challenge to Article 75 out, as it did not

correlate to an actual conduct but the possibility of a future

conduct. Section 241 is not intended to discipline a Management in

respect of a possible future conduct.

18.8 It is no doubt true that the Tribunal has the power under

Section 242 to set aside any amendment to the Articles that takes

away recognised proprietary rights of shareholders. But this is on

the premise that the bringing up of amendment itself was a conduct

that was oppressive or prejudicial.

18.9 It was contended that Article 75 was repugnant to

Sections 235 and 236 of the Companies Act, 2013. We do not know

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how these provisions would apply. Section 235 deals with a scheme

or contract involving transfer of shares in a Company called the

transferor company, to another called the transferee company.

Similarly, Section 236 deals with a case where an acquirer acquired

or a person acting in concert with such acquirer becomes the

registered holder of 90% of the equity share capital of the Company,

by virtue of amalgamation, share exchange, conversion of securities

etc. These provisions have no relevance to the case on hand.

18.10 Even the contention revolving around Section 58(2) is

wholly unsustainable, as Section 58(2) deals with securities or other

interests of any member of a Public Company.

18.11 Therefore, the order of NCLAT tinkering with the power

available under Article 75 of the Articles of Association is wholly

unsustainable. It is needless to point out that if the relief granted

by NCLAT itself is contrary to law, the prayer of the S.P. Group in

their Appeal C.A. No.1802 of 2020 asking for more, is nothing but a

request for aggravating the illegality.

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19. Question 4

19.1 The fourth question of law to be considered is whether

the characterisation by the Tribunal, of the affirmative voting rights

available under Article 121 to the Directors nominated by the

Trusts in terms of Article 104B, as oppressive and prejudicial, is

justified especially after the challenge to these Articles have been

given up expressly and whether the Tribunal could have granted a

direction to RNT and the Nominee directors virtually nullifying the

effect of these Articles.

19.2 In the Company Petition as it was originally filed, the

complainant companies sought a prayer in Paragraph 153(M) to

strike down Articles 86, 104B, 118, 121 and 121A in entirety and to

strike off one portion of Article 124. These Articles (other than

Article 118, which is extracted elsewhere) read as follows:

“86. Quorum at General Meetings

No quorum at a general meeting of the holders of the

Ordinary Shares of the Company shall be constituted

unless the members who are personally present are not

less than five in number including at least one

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authorised representative jointly nominated by

the Sir Dorabji Tata Trust and the Sir Ratan Tata

Trust so long as the Tata Trusts hold in aggregate

at least 40% of the paidup Ordinary share

capital, for the time being, of the Company.

Explanation: the words “jointly nominated”

used in this Article shall mean that the Sir Dorabji Tata

Trust and the Sir Ratan Tata Trust shall together

nominate the authorized representative. In the case of

any difference, the decision of the majority of the

Trustees in the aggregate of the Sir Dorabji Tata Trust

and the Sir Ratan Tata Trust shall prevail.”

104. General Provisions

A. Number of Directors

............

B. Nomination of Directors

So long as the Tata Trusts own and hold in the

aggregate at least 40% of the paid up Ordinary

share capital, for the time being, of the company,

the Sir Dorabji Tata Trust and Sir Ratan Tata

Trust, acting jointly, shall have the right to

nominate one third of the prevailing number of

Directors on the Board and in like manner to

remove any such person so appointed and in place

of the person so removed, appoint another person

as Director.

The Directors so nominated by the Sir Dorabji

Tata Trust and Sir Ratan Tata Trust shall be

appointed as Directors of the Company.

Explanation: the words ‘acting jointly’ used

in this Article shall mean that the Sir Dorabji Tata Trust

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and Sir Ratan Tata Trust shall together nominate such

Directos. In the case of any difference, the decision of

the majority of the Trustees in the aggregate of the Sir

Dorabji Tata Trust and Sir Ratan Tata Trust shall

prevail.

121. Matters How Decided.

Matters before any meeting of the Board which are

required to be decided by a majority of the

directors shall require *the affirmative vote of a

majority of the Directors appointed pursuant to

Article 104B present at the meeting and in the

case of an equality of vote’s the Chairman shall have a

casting vote.”

**121A. The following matters shall be

resolved upon by the Board of Directors:

(a) a fiveyear strategic plan that should include an

assessment of the proposed strategic path of the

Company, business and investment opportunities,

proposed business and investment initiatives and a

comparative analysis of similarly situated holding

companies, and any alterations to such strategic Plan.

(b) an annual business plan structured to form part

of the strategic plan, that should include proposed

investments, incurring of debts, debt to equity ratio,

debt service coverage ratio, projected cash flow of the

Company and any alterations to such annual business

plan”

borrowing by the Company, which debt or borrowing

causes the cumulative outstanding debt of the

Company, to exceed twice its net worth or which

debt/borrowing is incurred/renewed at a time when

the cumulative outstanding debt of the Company has

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already exceeded twice its net worth, if not already

approved as part of the annual business plan;

(d) any proposed investment by the Company in

securities, shares, stocks, bonds, debentures, financial

instruments, of any sort or immovable property of a

value exceeding Rs. 100 Crores if not already approved

as part of the annual business plan;

(e) Any increase in the authorized, subscribed,

issued or paid up capital of the Company and any issue

or allotment of shares by the Company (whether on a

rights basis or otherwise) ;

(f) Any sale or pledge, mortgage or other

encumbrance or creation of any right or interest by the

Company of or over its shareholding in any Tata

Company or of or over any part thereof, if not already

approved as part of the annual business plan;

(g) any matter affecting the shareholding of the

Tata Trusts in the company or the rights

conferred upon the Tata Trusts by the Articles of

the Company or the shareholding of the Company

in any Tata Company if not already approved as

part of the annual business plan;

(h) Exercise of the voting rights of the Company at

the general meetings of any Tata Company, including

the appointment of a representative of the Company

under Section 113(1)(a) of the Companies Act, 2013 in

respect of a general meeting of any Tata Company and,

in any matter concerning the raising of capital, incurring

of debt and divesting or acquisition of any undertaking

or business of such Tata Company, instructions to such

representative on how to exercise the Company’s voting

rights.

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Explanation: the term “Tata Company” used in

this article shall, as the context requires, mean each or

any of the 4 following companies”

Tata Consultancy Services ltd., Tata Steel Limited, Tata

Motors Limited, Tata Capital Ltd., Tata Chemicals Ltd.,

Tata Power Company Ltd., Tata Global Beverages Ltd.,

The Indian Hotels Company Ltd., Trent Limited, Tata

Teleservices (Maharashtra) Limited, Tata Industries

Limited, Tata Teleservices Limited, Tata

Communications Limited, Titan Company Limited and

Infiniti Retail Limited and any other Company in which

the Company (or its subsidiaries) holds twenty percent

or more of the paid up share capital and whose name is

notified in writing to the Company by the Directors

nominated under Article 104B”.

19.3 But through a Memo dated 12.01.2018, the complainant

companies restricted the relief prayed in Paragraph 153(M) to the

extent as follows:

(i) the necessity of affirmative voting of the majority of

the Directors nominated by the Trusts, which are majority of

shareholders be deleted;

(ii) the petitioners be entitled to proportionate

representation on the Board of Directors of Respondent No.1;

(iii) the petitioners be entitled to a representation on all

committees formed by the Board of Directors of Respondent

No.1; and

(iv) the Articles of Association be amended accordingly.

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19.4 Therefore, what was actually sought by the complainant

companies was the deletion of the Article that necessitated the

affirmative voting right of the majority of the Directors nominated

by the two Trusts. There was no prayer for restraining RNT and the

nominee Directors of the Trusts from taking any decision in

advance.

19.5 In fact, even the complainant companies are not happy

about the relief so granted by NCLAT. In the Table given in

Paragraph 4 of their Memorandum of Appeal in C.A.No.1802 of

2020, the complainant companies themselves seek a modification of

the relief so granted. This Table found below Paragraph 4 of the

Memorandum of Grounds of appeal in C.A.No.1802 of 2020 reads

as follows:

Reliefs granted by the Ld.

NCLAT

Reliefs that ought to have been

granted by the Ld. NCLAT in

light of the findings rendered

and the reliefs sought for

Abuse of Articles culminating in the removal of R11

R2 and nominee of the Tata Trusts

should desist from taking decisions

in advance of Board meetings and

i. The direction ought not to have

been only against the nominee

of Tata Trusts and R2 but

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shareholder meetings of Tata Sons. against the Trustees of the

majority shareholders who

even though not on the Board

of Tata Sons, were interfering

with the decision making

processes of the Board of

Directors, and therefore, the

reliefs ought to have been

granted against all the

Trustees of the Tata Trusts.

ii. Further in view of the fact that

such interference was being

based on the existence of an

affirmative vote under Article

121, it would totally be

anomalous to a Board

managed Company if every

decision required an

affirmative vote of the Trust

Nominee Directors and Tata

Sons would virtually become a

majority shareholder managed

company rather than a Board

managed company as

contemplated under Article

122(b). Article 121A of the

Articles specifies certain areas

where consent of the majority

shareholder was necessary

and therefore, the relief that

ought to have been granted

was to restrict the applicability

of the affirmative vote to the

nominee of the Tata Trusts on

the matters covered under

Article 121A and a a similar

right ought to have been

conferred on the nominee

directors of the minority

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shareholder – the SP Group.

19.6 But for the fact that the complainant companies have

also come up with an appeal, we would have simply set aside the

order of restraint passed by NCLAT against RNT and nominee

Directors, on the ground that there was no such prayer. Now that

S.P. Group has come up with an appeal seeking an amplification or

modulation of the relief so granted, we shall deal with the challenge

to the affirmative voting rights.

Affirmative voting rights

19.7 Under Article 104B, Sir Dorabjee Tata Trust and Sir

Ratan Tata Trust, acting jointly, shall have a right to nominate

1/3rd of the prevailing number of Directors on the Board, so long as

the Trusts own and hold, in the aggregate, at least 40% of the paid

up share capital. Article 121 provides that the matters which

require to be decided by a majority of the Directors, shall require

the affirmative vote of the majority of Directors appointed under

Article 104B.

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19.8 Article 121A contains the list of matters to be resolved by

the Board of Directors. One of the items included therein is “any

matter affecting the share holding of the Tata Trusts in the

Company…”

19.9 As seen from the Table under Paragraph 4 of the

Memorandum of appeal filed by the S.P. Group in C.A.No.1802 of

2020, they are not seeking, even now, the scrapping of the

affirmative voting rights. Interestingly, S.P. Group, through their

Memo dated 12.01.2018 wanted the deletion of the Article providing

for affirmative voting right. But as per the Table under Paragraph 4

of the Memo of their appeal in C.A.No.1802 of 2020, the

complainant companies have now reconciled themselves to the

unavoidability of affirmative voting rights but all that they want is

that the applicability of affirmative voting right should be restricted

to the matters covered by Article 121A. In addition, the complainant

companies want a similar affirmative right to be conferred on the

nominee Directors of the S.P. Group.

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19.10 The swing that the S.P. Group has taken in their position

relating to affirmative voting rights is quite funny. To begin with,

they sought a prayer for striking off Article 121 in its entirety. Later

they restricted their relief, by the Memo dated 12.01.2018, to the

deletion of “the necessity of affirmative voting rights”. But now they

are fine with the existence of affirmative voting rights for the

majority in respect of matters covered by Article 121A, but want a

similar right in favour of the nominee directors of the S.P. Group.

19.11 The frequent change of position that S.P. Group has

taken and the relief that they now seek, raises a doubt whether it is

actually a fight on principles. If affirmative voting rights are bad in

principle, we do not know how they may become good, if conferred

on S.P. Group also.

19.12 Drawing our attention to Sections 135, 149, 151, 161

166 and 177 of the Companies Act, 2013, it was argued on behalf of

SP group that there is a sea change in the law, after the advent of

the 2013 Act and that today a paradigm shift has taken place from

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‘corporate majority/democracy’ to ‘corporate governance’ and that

every action of the Board has to pass the test of fairness. It is

further contended that Directors have a fiduciary responsibility with

the highest level of duty and that the same cannot be outsourced.

According to the SP group, the Directors, once appointed, owe their

allegiance only to the company and not to their nominators.

19.13 At first blush, these arguments, almost bordering on

romantic idealism, appear very attractive. But on a deeper scrutiny,

they are bound to get grounded. If we have a look at the history of

evolution of corporate enterprises, it can be seen that there are 3

time periods through which development of corporate entities have

passed. In the first period, large corporate houses were established

by individuals with their own funds and those individuals and their

families controlled both ownership and management of these

enterprises. In the second time period, when professionalism

became the ‘Taraka mantra’, families which promoted enterprises,

retained ownership, but appointed professional managers to run

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the show. Thus ownership got divested from management. In the

third time period, social participation increased by leaps and

bounds through public issues and listing. This increased the social

accountability and social responsibility of corporate entities. Every

time a historical shift/change took place, the legal regime had to

undergo a change, albeit at snail’s pace.

19.14 As a matter of fact, the Companies Act, 1956 suffered 24

amendments. Major amendments were made first in 1988 and then

in 2002, respectively on the basis of the recommendations of the

Sachar Committee and the Report of the Eradi Committee. On

August 4, 2004, the Ministry of Company Affairs, published a

Concept Paper on Company Law on its website, after which, the

Government constituted an Expert Committee under the

Chairmanship of Dr. J.J. Irani20. The mandate of the Committee

was to make recommendations on certain issues, one of which was

“protecting the interests of stakeholders and investors, including

small investors”. This committee’s report crystallised into

20 Incidentally J.J. Irani was the Chairman of Tata Sons for sometime

219

Companies Bill, 2009, which later became Companies Bill, 2011

and then Companies Act, 2013.

19.14 It is true that the 2013 Act brought a lot of drastic

changes. Some of the salient features of the 2013 Act are:

(i) Every company is required to have at least one

Director who has stayed in India for a total period of not

less than 182 days in the previous calendar year.

(ii) Every listed Public Company is required to have at

least onethird of the total number of Directors as

independent Directors.

(iii) Some Public Companies are required to have at

least two independent Directors.

(iv) Every independent Director should give a

declaration at the first Board meeting that he meets the

criteria of independence.

(v) Certain types of Public Companies are required to

appoint at least one woman Director.

(vi) Every listed company may appoint a small

shareholders’ Director, to be elected by the small

shareholders.

220

(vii) The report of the Board of Directors should include

a Director’s Responsibility Statement, covering certain

aspects relating to accounting standards, accounting

policies and maintenance of accounting records.

(viii) Directors of a company are obliged to perform

certain duties, such as duty to act in good faith, duty to

exercise reasonable care, skill diligence and independent

Judgment etc.

(ix) A detailed Code of conduct for independent

Directors is stipulated in Schedule IV. This includes

guidelines for professional conduct, roles and functions

and duties.

(x) The resignation or removal of independent Directors

should be in accordance with the procedure prescribed.

(xi) Independent Directors are required to hold at least

one meeting in a year without the attendance of nonindependent Directors and members of management and

they are entitled in this meeting to review the

performance of nonindependent Directors and the Board

as a whole. They can even review the performance of the

Chairperson of the Company and assess the quality,

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quantity and timeliness of flow of information between

the management and the Board.

(xii) The Board of Directors of certain companies are

required to have certain Committees such as (1) Audit

Committee; (2) Nomination and Remuneration Committee

and (3) Stakeholders Relationship Committee.

(xiii) A separate section on Corporate Governance is to be

included in the Annual Reports of certain companies,

with a detailed compliance Report on Corporate

Governance.

(xiv) After the advent of the Companies Act, 2013, SEBI

Regulations were also amended, inserting Clause 49 in

the Listing Agreement, to enforce compliance with

Corporate Governance standards.

19.15 But it must be remembered that the shift under the

Companies Act, 2013 is focused on listed and unlisted public

companies. The requirement under Section 149(4) to have at least

onethird of the total number of Directors as independent Directors

applies only to every listed public company. The requirement under

Section 151 to have one Director elected by small shareholders is

222

also applicable only to listed companies. The requirement to

constitute an Audit Committee in terms of Section 177(1), a

Nomination and Remuneration Committee and the Stakeholders

Relationship Committee in terms of Section 178(1) are also only on

listed public companies.

19.16 Insofar as Tata Sons is concerned, the Articles of

Association of the Company continue to contain the prescribed

restrictions which make it a private company within the definition

of the expression under Section 2(68). Therefore, the provisions

discussed above do not apply to Tata Sons. Yet Tata Sons has a

Board packed with many people who are ranked outsiders. If the

idea was to run Tata Sons purely as a family business, RNT need

not have stepped down from the Chairmanship. Today nobody

wants to step down from any office, except if afflicted by brain

stroke or sun stroke. As we have seen from the pleadings, the Tata

Group was founded by Jamsetji Nusserwanji Tata (18391904). It

was first established as a private trading firm in 1868 and was later

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incorporated as a private company on 8.11.1917 under Section

2(13) of the Companies Act, 1913. Later two Trusts were created,

one in the year 1919 under the name Sir Ratan Tata Trust and

another in 1952 under the name Sir Dorabji Tata Trust. It was only

in 1965 that S.P. Group acquired 48 preference shares and 40

equity shares, from a member of Tata Sons named Mrs. Rodabeh

Sawhney. Shri Pallonji Mistry, the father of CPM was inducted as a

NonExecutive Director on 25.06.1980, though the Articles of

Association did not confer any right of Directorship upon the S.P

Group. He stepped down from this position in December, 2004.

Thereafter, CPM was appointed as NonExecutive Director on

10.08.2006. Ever since the establishment of the Tata Group in

1868, there have only been six persons who became the Chairmen

of the Group. While five of them namely Jamshedji Tata, Sir Dorab

Tata, Nowroji Saklatwala, JRD Tata and Ratan Tata belonged to the

same family, the sixth person namely CPM was inducted as

Executive Chairman by Resolution dated 18.12.2012 with effect

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from 29.12.2012. Before the said appointment, CPM was identified

by a Selection Committee which comprised of the nominees of the

two Tata Trusts. This Selection Committee identified CPM as a

successor to RNT as Chairman and appointed him first as Executive

Deputy Chairman for a period of five years form 1.04.2012 till

31.03.2017, subject to the approval of the General Body. The

General meeting of the shareholders, held on 1.8.2012 approved the

appointment of CPM as Executive Deputy Chairman and also left it

to the Board to redesignate him as Chairman. This is how the

Board, in its meeting dated 18.12.2012 redesignated CPM as

Executive Chairman.

19.17 If the argument relating to corporate governance is

carefully scrutinized in the context of the fact: (i) that a large

industrial house whose origin and creation was familial, was willing

to handover the mantle of heading the entire empire to a person like

CPM (a rank outsider to the family); and (ii) that the identification of

CPM as the successor to RNT was done by the very same nominees

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of the two Tata Trusts (who is now accused of interference), then it

will be clear that Tata Group was guided by the principle of

Corporate Governance (even without a statutory compulsion) and

not by tightfisted control of the management of the affairs of the

Group.

19.18 The provisions of sections 135, 149, 151, 166 and 177

around which the argument relating to corporate governance is

fantasised, cannot advance the case of the SP group. Section 135

deals with corporate social responsibility, which in any case is more

pronounced in this company due to the fact that charitable trusts

hold majority of the shares. Section 149 deals with the requirement

to have Directors, section 151 provides for appointment of a

Director elected by small shareholders, section 166 enumerates the

duties of directors and section 177 and 178 speak of some

committees. Some of these provisions such as sections 151, 177

and 178 apply only to listed public companies. Yet, Tata Sons have

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complied with sections 177 and 178 by constituting necessary

committees.

19.19 It was contended that a Director of a Company is to act

in good faith in order to promote the objects of the Company for the

benefit of all the stakeholders and that he is in a fiduciary capacity

visavis the company. The affirmative voting rights, according to

S.P.Group, disabled the nominee Directors from acting

independently in the best interests of the company and its

stakeholders and that once appointed, the loyalty of the nominee

Directors should be to the Company and not solely to the Trusts

which nominated him. It was further contended that under Articles

121, 121A and 122, Tata Sons was to be a Board managed

Company and that the protective rights conferred under Article 121

were intended to take care of the interests of the Tata Trust, in case

they became a minority.

19.20 According to the S.P. Group, the preconsultation/preclearance requirement disabled the Directors from effectively

227

discharging their fiduciary duties under Section 166, violated the

Secretarial Standards required to be adhered to under Section

118(10) and rendered nugatory, the scheme of Section 149 which

requires 1/3rd of the members of the Board to be independent

Directors.

19.21 But all the above contentions are completely devoid of

any substance, for they tend to overlook one basic fact namely that

Tata Sons is not a company engaged either in any manufacturing

activity or in any trading activity. As per the pleadings, on which

there is no dispute, Tata Sons is a Principal Investment Holding

Company and is a promoter of Tata Companies. Tata Sons holds a

controlling interest in all the operating companies of the Tata

Group. Other than being the Principal Investment Holding

Company, Tata Sons, by itself is not engaged in any direct business

activity.

19.22 As we have indicated in the beginning, around 66% of the

equity share capital of Tata Sons is held by philanthropic Trusts,

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including Sir Dorabji Tata Trust and Sir Rata Tata Trust. It is

claimed that these charitable Trusts support education, health,

livelihood generation and Art & Culture.

19.23 If we take these two important factors into consideration

namely: (i) that Tata Sons is only a Principal Investment Holding

Company; and (ii) that the majority shareholders of Tata Sons are

only philanthropic charitable Trusts, it will be clear that the

Directors nominated by the Trusts are not like any other Directors

who get appointed in a General Meeting of the Company in terms of

Section 152(2) of the Act. In fact it is a paradox to claim that by

virtue of Subsections (2) and (3) of Section 166, every Director of a

Company is duty bound to act in good faith in order to promote the

objects of the company for the benefits of its members and in the

best interests of all the stakeholders as well as environment and a

duty to exercise independent judgment, and yet mandate the

appointment of independent Directors under Section 149(4). If all

Directors are required under Section 166(3) to exercise independent

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Judgment, we do not know why there is a separate provision in

Section 149(4) for every listed Public Company to have at least 1/3rd

of the total number of Directors as independent Directors. We do

not also know whether the prescription in Section 149(4) is a tacit

acknowledgment that all the Directors appointed in a General

meeting under Section 152(2) may not be independent in practice,

though they may be required to be so in theory.

19.24 A person nominated by a charitable Trust, to be a

Director in a company in which the Trust holds shares, also holds a

fiduciary relationship with the Trust and fiduciary duty towards the

nameless, faceless beneficiaries of those Trusts. As we have pointed

out elsewhere, the history of evolution of the corporate world shows

that it has moved from the (i) familial to (ii) contractual and

managerial to (iii) a regime of social accountability and

responsibility. This is why Section 166(2) also talks about the duty

of a Director to protect environment, in addition to his duties to (i)

promote the objects of the company for the benefit of its members

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as a whole; and (ii) act in the best interests of the company, its

employees, the shareholders and the community. It is common

knowledge that some of the industries which take good care of its

shareholders and employees also run polluting industries.

Therefore there is always a conflict, a tug of war between competing

interests and statutes cannot resolve these conflicts effectively.

19.25 Affirmative voting rights for the nominees of institutions

which hold majority of shares in companies have always been

accepted as a global norm. As a matter of fact the affirmative voting

rights conferred by Article 121 of the Articles of Association, confers

only a limited right upon the Directors appointed by the Trusts

under Article 104B. Article 121 speaks only about the manner in

which matters before any meeting of the Board shall be decided. If

it is a General Meeting of Tata Sons, the representatives of the two

Trusts will actually have a greater say as the Trusts have 66% of

shares in Tata Sons. Therefore, if we apply Section 152(2) strictly,

the Trusts which own 66% of the paid up capital of Tata Sons will

231

be entitled to pack the Board with their own men as Directors. But

under Article 104B, only a minimum guarantee is provided to the

two Trusts, by ensuring that the Trusts will have at least 1/3rd of

the Directors, as nominated by them so long as they hold 40% in

the aggregate of the paid up share capital.

19.26 Section 43 of the Companies Act (which is equivalent of

Section 86 of the 1956 Act), recognises two types of share capital of

a company limited by shares. They are (i) equity share capital; and

(ii) preference share capital. Again equity share capital can be of

two kinds namely, (i) those with voting rights; and (ii) those with

differential rights as to dividend, voting or otherwise in accordance

with such rules as may be prescribed.

19.27 Section 47(1)(b) of the 2013 Act (equivalent to Section

87(1)(b) of the 1956 Act), declares that the rights of a member of a

company limited by shares, shall be in proportion to his share in

the paid up equity share capital of the company. This right is

subject to the provisions of Section 43, Section 50(2) and Section

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188(1) of the 2013 Act. The restrictions under Sections 43, 50(2)

and 188(1) respectively are, (i) shares with differential voting rights;

(ii) disentitlement to voting rights, of a member who has not paid

the unpaid share capital; and (iii) the disentitlement of a member to

vote on a resolution for the approval of any contract entered into by

the company with a related party.

19.28 Under Section 10(1) of the Companies Act, 2013, the

Articles of Association bind the company and the members thereof

to the same extent as if they respectively had been signed by the

company and by each member. However, this is subject to the

provisions of the Act.

19.29 Article 94 of the Articles of Association of Tata Sons is in

tune with Section 47(1)(b), as it says that upon a poll, the voting

rights of every member, whether present in person or by proxy

shall be in proportion to his share of the paid up capital of the

company. Therefore, a shareholder or a group of shareholders who

constitute majority, can always seek to be in the driving seat by

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reserving affirmative voting rights. So long as these special rights

are incorporated in the Articles of Association and so long as they

are not in contravention of any of the provisions of the Act, the

same cannot be attacked on these grounds.

19.30 Coming to the argument revolving around the duty of a

Director, it is necessary that we balance the duty of a Director,

under Section 166(2) to act in the best interests of the company, its

employees, the shareholders, the community and the protection of

environment, with the duties of a Director nominated by an

Institution including a public charitable trust. They have fiduciary

duty towards 2 companies, one of which is the shareholder which

nominated them and the other, is the company to whose Board they

are nominated. If this is understood, there will be no confusion

about the validity of the affirmative voting rights. What is ordained

under Section 166(2) is a combination of private interest and public

interest. But what is required of a Director nominated by a

charitable Trust is pure, unadulterated public interest. Therefore,

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there is nothing abhorring about the validity of the affirmative

voting rights.

19.31 Relying upon the decision of this Court in Vodafone

International Holdings BV vs. Union Of India21

, it was contended

that a minority investor has what is called “participative rights,

which is a subsect of protective rights” and that these participative

rights enable the minority to overcome the presumption of

consolidation of operations or assets by the controlling shareholder.

19.32 But the decision in Vodafone (supra) arose under a

completely different context. It was a tax dispute in relation to

capital gains arising from the sale of share capital of a company

resident for tax purposes in Cayman Islands, on the basis that it

held underlying Indian assets. It was in that context that this Court

analysed the independent legal existence of a subsidiary and held

that even if directors are appointed at the behest of the parent

company or removable by the parent company, such directors of the

subsidiary company will owe their duty to those companies and are

21 (2012) 6 SCC 613

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not to be dictated by the parent company if it is not in the interest

of the subsidiaries.

19.33 The decisions Re: Neath Rugby Limited22 and Central

Bank of Ecuador and others vs. Conticorp SA and others

(Bahamas)23, are relied upon to show that while a nominee director

is entitled to take care of the interests of the nominator, he is duty

bound to act in the best interests of the company and not fetter his

discretion.

19.34 The question as to (i) what is in the interest of the

company, (ii) what is in the best interest of the members of the

company as a whole and (iii) what is in the interest of a nominator,

all lie in locations whose borders and dividing lines are always

blurred. If philosophical rhetoric is kept aside for a moment, it will

be clear that success and profit making are at the core of business

enterprises. Therefore, the best interest of the majority shareholders

need not necessarily be in conflict with the interest of the minority

22 (2010) B.C.C. 597

23 (2015) UKPC 11 Judicial Committee of the Privy council (UK)

236

or best interest of the members of the company as a whole, unless

there is siphoning of or diversion. Such a question does not arise

when the majority shareholders happen to be charitable Trusts

engaged in philanthropic activities. It is good to wish that the

creation gets liberated from the creator, so long as the creator

does not have any control or ability to manipulate. In the

corporate world, democracy cannot be seen as an ugly expression,

after using the very same democratic process for the appointment of

directors.

19.35 Much ado was made about preconsultation and preclearance by the Trustees, even before the Board took a call. But it

was actually about nothing. Whenever an institution happens to be

a shareholder and a notice of a meeting either of the Board or of the

General body is issued, it is but normal for the institution to have

an idea about the stand to be taken by them in the forthcoming

meeting.

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19.36 Objections were raised about RNT vetting the minutes of

the meetings of the Board post facto and his participation as a

shadow Director. But as we have pointed out elsewhere, CPM

himself sought, while accepting the office of Executive

Chairmanship, the continued guidance of RNT. When the Board, of

which CPM was a Chairman, nominated RNT as Chairman

Emeritus and recorded their desire to look forward to his support

and guidance, it is not open to the complainant companies to call

RNT a shadow Director. If someone, aggrieved after his removal

from office can engage in shadowboxing through the companies

controlled by him, he cannot accuse the very same person who

chose him as successor to be a shadow director. Someone who

gained entry through the very same door, cannot condemn it when

asked to exit.

19.37 Therefore, the challenge to the affirmative voting rights

and the allegations revolving around pre consultation and pre

clearance by the Trusts of all items in the agenda and RNT’s

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indirect or direct influence or grip over the Board are all liable to be

rejected. That leaves us with one more related issue, under this

question of law and the same relates to the claim of SP group for

proportionate representation on the Board. We shall now go to the

same.

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Claim for proportionate representation

19.38 As we have pointed out elsewhere, the Statute confers

upon the members of a company limited by shares, a right to vote

in a general meeting. And this right is proportionate to his

shareholding as per Section 47(1)(b). Section 152 which contains

provisions for the appointment of Directors, does not confer any

right of proportionate representation on the Board of any company,

be it public or private.

19.39 The maximum extent, to which the Parliament has gone

under the 2013 Act, is to make a provision under Section 151,

enabling “a listed company” to have one Director elected by such

small shareholders in such manner and on such terms and

conditions as may be prescribed. Though a similar prescription

was incorporated in Section 252(1) of the Companies Act, 1956,

under Act 53 of 2000, it was not exactly the same. For the purpose

of easy appreciation, the proviso to Subsection (1) of Section 252 of

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the 1956 Act and Section 151 of the 2013 Act are presented in a

tabular column as follows:

1956 Act 2013 Act

Section 252. Minimum number

of directors. – (1) Every public

company other than a public

company which has become

such by virtue of section 43A

shall have at least three

directors:

(Provided that a public

company having,

(a) a paidup capital of five

crore rupees or more;

(b) one thousand or more

small shareholders,

may have a director elected by

such small shareholders in

the manner as may be

prescribed.

Explanation. – For the

purpose of this subsection

“small shareholders” means a

shareholder holding shares of

nominal value of twenty

thousand rupees or less in a

public company to which this

section applies.

Section 151. Appointment of

director elected by small

shareholders. A listed

company may have one director

elected by such small

shareholders in such manner

and with such terms and

conditions as may be

prescribed.

Explanation.—For the purposes

of this section “small

shareholders” means a

shareholder holding shares of

nominal value of not more than

twenty thousand rupees or such

other sum as may be

prescribed.

19.40 The important features to be noticed in the 1956 Act and

the 2013 Act are : (i) that Section 252 of the 1956 Act was

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applicable to every public company but not to a public company

which has become such by virtue of Section 43A, indicating thereby

that it would not have had any application to Tata Sons; (ii) that in

contrast, Section 151 of the 2013 Act applies only to listed

companies; (iii) that for the application of the proviso to Section

252(1) of the 1956 Act, the public company should have a paidup

capital of Rs.5 crores or more and 1000 or more small shareholders;

(iv) that in contrast the applicability of Section 151 of the 2013 Act

does not depend upon either the paidup capital or the number of

small shareholders; and (v) that the definition of the expression

“small shareholders” is just the same under both the enactments.

19.41 It is interesting to note that the smallness conceived by

the 1956 Act is virtually minuscule. One would qualify to be a small

shareholder only if he holds shares of a nominal value of

Rs.20,000/ or less, in a public company having a paidup capital

of Rs.5 crores or more. This proportion works out to 1/2500 or

0.04%.

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19.42 One must be careful to note that both under Section

252(1) of the 1956 Act and under Section 151 of the 2013 Act, the

spotlight was only on “small shareholders” and not on “minority

shareholders” like the S.P. Group which holds around 18.37%. In

fact, admittedly the value of this 18.37% of shareholding of the S.P.

Group, as of March2016 was around Rs.58,441 crores. It is

claimed that the purchase consideration of these shares at the

relevant point of time was Rs.69 crores and that during the period

from 1991 to 2016, SP group had received aggregate dividends to

the tune of Rs.872 crores. We do not know whether this kind of a

huge return on investment and the skyrocketing of the appreciation

of the value of investment, is also due to oppressive conduct or

despite oppressive conduct.

19.43 Whatever it be, the right to claim proportionate

representation is not available even to a minority shareholder

statutorily, both under the 1956 Act and under the 2013 Act. It is

243

available only to a small shareholder, which S.P. Group is certainly

not.

19.44 The right to claim proportionate representation is not

available for the S.P. group even contractually, in terms of the

Articles of Association. Neither S.P. Group nor CPM can request the

Tribunal to rewrite the contract, by seeking an amendment of the

Articles of Association. The Articles of Association, as they exist

today, are binding upon S.P. Group and CPM by virtue of Section

10(1) of the Act.

19.45 Realising the fact that they have no right, statutorily or

contractually or otherwise to demand proportionate representation

on the Board, S.P. Group has come up with a very novel idea,

namely the claim of existence of a quasipartnership between the

Tata group and SP group. It is contended by S.P. Group that there

existed a personal relationship between those in management of the

S.P. Group and those in management of Tata Sons for over several

decades and that the relationship was one of trust and mutual

244

confidence. According to S.P. Group, they acted as the guardian of

the Tata Group when the Tata Trust had no voting rights.

Therefore, it is claimed that there is a right and a legitimate

expectation to have a representation on the Board of Tata Sons.

19.46 But we do not think that there ever existed a relationship

in the nature of quasi partnership. As we have pointed out

elsewhere, the company was incorporated in the year 1917 and S.P.

Group became a shareholder in 1965, namely after 50 years. A

berth on the Board of Tata Sons was granted only in the year 1980

to CPM’s father. Therefore, there is nothing on record in the form of

pleadings or proof, to show that there was either (i) a preexisting

relationship before the incorporation of the company or (ii) a living

in relationship picked up half way through, by entering into an

agreement in the nature of a partnership.

19.47 In fact, CPM’s father was inducted into the Board in

1980, after 15 years of acquisition of shares and such induction

was not in recognition of any statutory or contractual right. After

245

his father’s exit in 2004, CPM was inducted in 2006, neither in

recognition of a contractual right nor in recognition of a hereditary

or statutory right.

19.48 The claim for proportionate representation can also be

looked at from another angle. RNT who was holding the mantle as

the Chairman of Tata Sons for a period of 21 years from 1991 to

2012, actually conceded a more than proportionate share to the

S.P. Group by nominating CPM as his successor. Accordingly CPM

was also crowned as Executive Deputy Chairman on 16.3.2012 and

as Chairman later. CPM continued as Executive Chairman till he

set his own house on fire in 2016. If the company’s affairs have

been or are being conducted in a manner oppressive or prejudicial

to the interests of the S.P. group, we wonder how a representative of

the S.P. Group holding a little over 18% of the share capital could

have moved upto the top most position within a period of six years

of his induction. Therefore, we are of the considered view that the

246

claim for proportionate representation on the Board is neither

statutorily or contractually sustainable nor factually justified.

19.49 Placing reliance upon section 163 of the Companies Act,

2013, it was contended that proportionate representation is

statutorily recognised. But this argument is completely

misconceived. Section 163 of the 2013 Act corresponds to section

265 of the 1956 Act. It enables a company to provide in their

Articles of Association, for the appointment of not less than twothirds of the total number of Directors in accordance with the

principle of proportionate representation by means of a single

transferable vote. First of all, proportionate representation by

means of a single transferable vote, is not the same as

representation on the Board for a group of minority shareholders, in

proportion to the percentage of shareholding they have. It is a

system where the voters exercise their franchise by ranking several

candidates of their choice, with first preference, second preference

etc. Moreover, it is only an enabling provision and it is upto the

247

company to make a provision for the same in their Articles, if they

so choose. There is no statutory compulsion to incorporate such a

provision.

19.50 Therefore, the fourth question of law is also to be

answered in favour of the Tata group and the claim in the cross

appeal relating to affirmative voting rights and proportionate

representation are liable to be rejected.

20. Question No.5

20.1 The 5th question of law formulated for consideration is as

to whether the reconversion of Tata Sons from a public company

into a private company, required the necessary approval under

section 14 of the Companies Act, 2013 or at least an action under

section 43A(4) of the Companies Act, 1956 during the period from

2000 (when Act 53 of 2000 came into force) to 2013 (when the 2013

Act was enacted) as held by NCLAT ?

20.2 As we have pointed out elsewhere, Tata Sons was

actually incorporated as a Private Limited Company, but was

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deemed to have become a Public Limited Company, with effect from

01.02.1975, by virtue of Section 43A (1A) of the Companies Act,

1956. However, by virtue of the proviso to Subsection (1A), the

Articles of Association of the Company, continued to retain the

provisions relating to the matters specified in subclauses (a), (b)

and (c) of Clause (iii) of Subsection (1) of Section 3 of the 1956 Act.

20.3 By Act 53 of 2000, the deeming fiction in section 43A was

removed and the whole concept of private companies becoming

public companies disappeared from the date of coming into force of

this Act 53 of 2000.

20.4 The Companies Act, 2013 did not include any provision

similar to section 43A. Therefore, Tata Sons passed a resolution in

its 99th Annual General meeting held on 21092017 to alter the

Memorandum and Articles so as to insert the word “private” in

between the words “Sons” and “Limited” in its name.

20.5 On 09.07.2018, the complaint under sections 241 and

242 was dismissed by NCLT and hence Tata Sons approached the

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Registrar of Companies on 19.07.2018 seeking an amendment to

the Certificate of Incorporation. It appears that S.P. Group filed

objections with the Registrar of Companies on the ground that they

were filing appeals against the order of the NCLT. But the Registrar

of Companies issued an amended certificate on 06.08.2018.

20.6 Upon coming to know of the issue of amended Certificate

of Incorporation, S.P. Group filed an additional affidavit before

NCLAT on 10.08.2018 in the appeals that came up for hearing.

20.7 While allowing the appeals of S.P. Group by a judgment

dated 18.12.2019, NCLAT declared the action of the Registrar of

Companies in issuing the amended Certificate of Incorporation

as illegal with a further direction to the Registrar of Companies to

make necessary corrections in the records showing the Company as

a Public Company.

20.8 The Registrar of Companies moved an application under

Sections 420(2) and 424(1) of the Companies Act, 2013 read with

Rule 11 of the NCLAT Rules, 2016, seeking removal of the

250

observations made in Paragraphs 181, 186 and 187(iv) of the

judgment. This application was dismissed by the NCLAT by an

order dated 06.01.2020, not only holding that no aspersions were

cast in the judgment of the NCLAT on the Registrar of Companies

warranting any review/clarification, but also providing certain

additional reasons. It is under these circumstances that the 5th

question of law revolving around Section 43A of the 1956 Act as

amended by Act 53 of 2000, and the Companies Act, 2013 has

arisen for consideration.

20.9 A look at Section 43A would show that it was actually

inserted under Companies (Amendment) Act 65 of 1960 with effect

from 28.12.1960. This Section underwent two amendments, one

under Act 41 of 1974 with effect from 01.02.1975 and another

under Act 31 of 1988 with effect from 15.06.1988. Finally, by Act

53 of 2000, Section 43A was made inapplicable with effect from

13.12.2000.

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20.10 Section 43A, as inserted by Act 65 of 1960, together with

the amendments made under Act 41 of 1974, Act 31 of 1988 and

Act 53 of 2000, is reproduced as follows:

“43A. Private Company to become a public

company in certain cases.

(1) Save as otherwise provided in this section, where

not less than twentyfive per cent of the paidup share

capital of a private company having a share capital is

held by one or more bodies corporate, the private

company shall,

(a) on and from the date on which the

aforesaid percentage is first held by such body or

bodies corporate, or

(b) where the aforesaid percentage has

been first so held before the commencement of

the Companies (Amendment) Act, 1960 (65 of

1960), on and from the expiry of the period of

three months from the date of such

commencement unless within that period the

aforesaid percentage is reduced below twentyfive per cent of the paidup share capital of the

private company,

become by virtue of this section a public company :

Provided that even after the private company has

so become a public company, its articles of association

may include provisions relating to the matters specified

in clause (iii) of subsection (1) of section 3 and the

number of its members may be, or may at any time be

reduced, below seven :

Provided further that in computing the aforesaid

percentage, account shall not be taken of any share in

the private company held by a banking company if, but

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only if, the following conditions are satisfied in respect

of such share, namely:

(a) that the share

(i) forms part of the subject matter

of a trust,

(ii) has not been set apart for the

benefit of any body corporate, and

(iii) is held by the banking company

either as a trustee of that trust or in

its own name on behalf of a trustee

of that trust;

(b) that the share

(i) forms part of the estate of a

deceased person,

(ii) has not been bequeathed by the

deceased person by his will to any

body corporate, and

(iii) is held by the banking company

either as an executor or

administrator of the deceased person

or in its own name on behalf of an

executor or administrator of the

deceased person,

and the registrar may, for the purpose of satisfying

himself that any share is held in the private company

by a banking company as aforesaid, call for at any time

from the banking company such books and papers as

he considers necessary.

Explanation.For the purposes of this subsection,

"bodies corporate" means public companies, or private

companies which had become public companies by

virtue of this section.

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(1A) Without prejudice to the provisions of subsection (1), where the average annual turnover of a

private company, whether in existence at the

commencement of the Companies (Amendment) Act,

1974, or incorporated thereafter, is not, during the

relevant period, less than 2 [such amount as may be

prescribed], the private company shall, irrespective of

its paidup share capital, become, on and from the

expiry of a period of three months from the last day of

the relevant period during which the private company

had the said average annual turnover, a public

company by virtue of this subsection:

Provided that even after the private company has

so become a public company, its articles of association

may include provisions relating to the matters specified

in clause (iii) of subsection (1) of section 3 and the

number of its members may be, or may at any time be

reduced, below seven.

(1B) Where not less than twentyfive per cent of

the paidup share capital of a public company, having

share capital, is held by a private company, the private

company shall,

(a) on and from the date on which

the aforesaid percentage is first held by it

after the commencement of the Companies

(Amendment) Act, 1974, or

(b) where the aforesaid percentage

has been first so held before the

commencement of the Companies

(Amendment) Act, 1974 on and from the

expiry of the period of three months from

the date of such commencement, unless

within that period the aforesaid percentage

is reduced below twentyfive per cent of the

paidup share capital of the public

company,

254

become, by virtue of this subsection, a public company,

and thereupon all other provisions of this section shall

apply thereto:

Provided that even after the private company has

so become a public company, its articles of association

may include provisions relating to the matters specified

in clause (iii) of subsection (1) of section 3 and the

number of its members may be, or may at any time be

reduced, below seven.

(1C) Where, after the commencement of the

Companies (Amendment) Act, 1988, a private company

accepts, after an invitation is made by an

advertisement, or renews, deposits from the public

other than its members, directors or their relatives, such

private company shall, on and from the date on which

such acceptance or renewal, as the case may be, is first

made after such commencement, become a public

company and thereupon all the provisions of this

section shall apply thereto:

Provided that even after the private company has

so become a public company, its articles of association

may include provisions relating to the matters specified

in clause (iii) of subsection (1) of section 3 and the

number of its members may be, or may at any time be,

reduced below seven.

(2) Within three months from the date on which a

private company becomes a public company by virtue of

this section, the company shall inform the Registrar that

it has become a public company as aforesaid, and

thereupon the Registrar shall delete the word "Private"

before the word "Limited" in the name of the company

upon the register and shall also make the necessary

alterations in the Certificate of Incorporation issued to

the company and in its memorandum of association.

(2A) Where a public company referred to in subsection (2) becomes a private company on or after the

255

commencement of the Companies (Amendment) Act,

2000, such company shall inform the Registrar that it

has become a private company and thereupon the

Registrar shall substitute the word `private company'

for the word `public company' in the name of the

company upon the register and shall also make the

necessary alterations in the Certificate of Incorporation

issued to the company and in its memorandum of

association within four weeks from the date of

application made by the company.

(3) Subsection (3) of section 23 shall apply to a

change of name under subsection (2) as it applies to a

change of name under section 21.

(4) A private company which has become a public

company by virtue of this section shall continue to be a

public company until it has, with the approval of the

Central Government and in accordance with the

provisions of this Act, again become a private company.

(5) If a company makes default in complying with

subsection (2), the company and every officer of the

company who is in default, shall be punishable with

fine which may extend to five hundred rupees for every

day during which the default continues.

(6) & (7) omitted by Act 31 of 1988

(8) Every private company having a share capital

shall, in addition to the certificate referred to in subsection (2) of section 161, file with the Registrar along

with the annual return a second certificate signed by

both the signatories of the return, stating either

(a) that since the date of the annual general

meeting with reference to which the last return

was submitted, or in the case of a first return,

since the date of the incorporation of the private

company, no body or bodies corporate has or

256

have held twentyfive per cent or more of its paidup share capital,

(b) …

paidup share capital, did not have, during the

relevant period, an average annual turnover of

such amount as is referred to in subsection (1A)

or more,

(d) that the private company did not accept or

renew deposits from the public.]

(9) Every private company, having share capital,

shall file with the Registrar along with the annual

return a certificate signed by both the signatories of the

return, stating that since the date of the annual general

meeting with reference to which the last return was

submitted, or in the case of a first return, since the date

of the incorporation of the private company, it did not

hold twentyfive per cent or more of the paidup share

capital of one or more public companies.

Explanation. For the purposes of this section,

(a) “relevant period” means the

period of three consecutive financial years.

(i) immediately preceding the

commencement of the Companies

(Amendment) Act, 1974, or

(ii) a part of which is

immediately preceded such

commencement and the other

part of which immediately,

followed such commencement, or

(iii) immediately following such

commencement or at any time

thereafter;

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(b) “turnover”, of a company,

means the aggregate value of the

realization made from the sale,

supply or distribution of goods or on

account of services rendered, or

both, by the company during a

financial year;

meaning as in section 58A

(10) Subject to the other provisions of this Act,

any reference in this section to accepting, after an

invitation is made by an advertisement, or renewing

deposits from the public shall be construed as including

a reference to accepting, after an invitation is made by

an advertisement, or∙ renewing deposits from any

section of the public and the provisions of section 67

shall, so far as may be, apply, as if the reference to

invitation to the public to subscribe for shares or

debentures occurring in that section, includes a

reference to invitation from the public for acceptance of

deposits.

(11) Nothing contained in this section, except subsection (2A), shall apply on and after the

commencement of the Companies (Amendment) Act,

2000.”

20.11 In its inception, Section 43A contained only one

stipulation namely that a private company in which not less than

25% of the paid up share capital was held by one or more bodies

corporate, shall become a public company. But by Act 41 of 1974,

two additional stipulations were included. They are (i) that a private

258

company whose average turnover during the relevant period is not

less than an amount prescribed, shall become a public company,

irrespective of its paid up share capital; and (ii) that a private

company which holds not less than 25% of the paid up share

capital of a public company, shall become a public company.

20.12 By Act 31 of 1988, the benchmark of the average annual

turnover that would determine the applicability of Section 43A was

prescribed as not less than Rs. 1 crore. In addition, Act 31 of 1988

also made a private company which accepts deposits from the

public, other than its members or directors, to be a public

company.

20.13 Two important prescriptions, which continued without

any change, from the date of insertion of Section 43A, namely

28.12.1960, till the coming into force of Act 53 of 2000 namely

13.12.2000, were Subsections (2) and (4) of Section 43A. Subsection (2) imposed an obligation upon a private company which

became a public company by virtue of section 43A, to inform the

259

Registrar. Upon receipt of such information, the Registrar was

ordained to delete the word “private” in the name of the company

upon the register and also to make necessary alterations in the

Certificate of Incorporation and its Memorandum of Association.

20.14 Subsection (4) declared that the status of such a

company as a public company would continue until such time it

becomes a private company (i) with the approval of the Central

Government; and (ii) in accordance with the provisions of the Act.

20.15 In Needle Industries (India) Ltd vs Needle Industries

Newey (India) Ltd24, this court pointed out (A) that there are 3

distinct types of companies, namely Private companies, Public

Companies and deemed to be public companies which occupy a

distinct place in the scheme of the Act (B) that private companies,

which become public companies, but which continue to retain in

their articles those matters mentioned in section 3(1)(iii) of the Act

are also broadly and generally subjected to the rigorous discipline of

24 (1981) 3 SCC 333

260

the Act and (C) that though section 43A companies cannot claim

the same privileges to which private companies are entitled, there

are certain provisions of the Act which would apply to public

companies, but not to Section 43A companies. An important

observation found in Needle Industries, is that “the policy of the Act

if anything, points in the direction that the integrity and structure of

section 43A proviso companies should, as far as possible, not be

broken up”.

20.16 Keeping the above stipulations in mind, let us now come

to the amendments made to Section 43A under Act 53 of 2000, with

effect from 13.12.2000. By this Act, two subsections namely Subsection (2A) and Subsection (11) were inserted in Section 43A.

20.17 By virtue of subsection (11), all the provisions of Section

43A except subsection (2A) were made inapplicable on and after

the commencement of Act 53 of 2000. This meant that with effect

from 13.12.2000, the whole of Section 43A except Subsection (2A)

got washed out.

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20.18 Subsection (2A) prescribes the procedure to be followed

by a company, which has earlier become a public company by

virtue of Section 43A, but which has later become a private

company after the commencement of Act 53 of 2000, to have

necessary changes effected. The procedure prescribed by subsection (2A) for such reconversion (or Ghar Wapsi) is as follows:

(i) The company shall inform the Registrar that the company has

again become a private company; and

(ii) The Registrar shall thereupon substitute the word “Private

Company” for the word “Public Company” upon the register

and also make necessary alterations in the Certificate of

Incorporation and its Memorandum of Association.”

20.19 But Act 53 of 2000 did not stop with section 43A. It also

amended section 3(1)(iii) by inserting an additional subclause,

namely “(d)” along with subclauses (a), (b) and (c). Under this subclause (d) of clause (iii) of subsection (1) of section 3, the articles of

association of a private company should also contain a prohibition

on any invitation or acceptance of deposits from persons other than

its members, directors or their relatives. Section 3(1)(iii) after

amendment under Act 53 of 2000 read as follows:

262

“3 (1) In this Act, unless the context otherwise requires, the

expressions "company", "existing company", "private company"

and "public company", shall, subject to the provisions of subsection (2), have the meanings specified below:

(iii) "private company" means a company which has a

minimum paidup capital of one lakh rupees or such higher paidup capital as may be prescribed, and by is articles,

(a) restricts the right to transfer its shares, if any ;

(b) limits the number of its members to fifty not including

(i) persons who are in the employment of the company ; and (ii)

persons who, having been formerly in the employment of the

company, were members of the company while in that

employment and have continued to be members after the

employment ceased ; and

shares in, or debentures of, the company ;

(d) prohibits any invitation or acceptance of deposits

from persons other than its members, directors or their

relatives:

Provided that where two or more persons hold one or more

shares in a company jointly, they shall, for the purposes of this

definition, be treated as a single member;”

20.20 Subclause (d) was what was added to section 3(1)(iii) by

Act 53 of 2000, even while scrapping the concept of a deemed

public company. But this subclause (d) is nothing but subsection

(1C) of section 43A. Though section 43A was being scrapped in

effect, the Parliament wanted to retain the prescription contained in

subsection (1C) of section 43A and which is why subclause (d)

was inserted under section 3(1) (iii).

263

20.21 But while doing so under Act 53 of 2000, a major

omission happened. The omission related to section 27 (3) of the

1956 Act. Section 27 of the 1956 Act contained stipulations as to

what the Articles of Association of (i) an unlimited company (ii) a

company limited by guarantee and (iii) a private company limited by

shares, should contain. It reads as follows:

“27. REGULATIONS REQUIRED IN CASE OF UNLIMITED

COMPANY, COMPANY LIMITED BY GUARANTEE OR PRIVATE

COMPANY LIMITED BY SHARES

(1) In the case of an unlimited company, the articles shall

state the number of members with which the company is to be

registered and, if the company has a share capital, the amount

of share capital with which the company is to be registered.

(2) In the case of a company limited by guarantee, the

articles shall state the number of members with which the

company is to be registered.

(3) In the case of a private company having a share

capital, the articles shall contain provisions relating to the

matters specified in subclauses (a), (b) and (c) of clause (iii) of

subsection (1) of section 3; and in the case of any other private

company, the articles shall contain provisions relating to the

matters specified in the said subclauses (b) and (c).”

20.22 No corresponding amendment was made to Section 27

(3), by Act 53 of 2000, so as to make it in tune with the amended

section 3(1)(iii). The result was that on and from 13122000 (the

date of coming into force of Act 53 of 2000), section 3(1)(iii)

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contained 4 requirements for a private company, but section 27(3)

referred only to 3 requirements. The incongruity can be stated thus.

To fall within the definition of a private company, 4 stipulations

contained in section 3(1)(iii) were to be satisfied. But under section

27(3), it is enough if the Articles of Association of a private company

contained only 3 prescriptions.

20.23 Be that as it may, the consequence of the amendment to

section 3(1)(iii), under Act 53 of 2000, was that a company which

wanted to take the route of subsection (2A) of section 43A, after the

coming into force of Act 53 of 2000 and reconvert itself into a

private company, was required to satisfy the rigours of subclauses

(a), (b) and (c) as well as (d) of clause (iii) of subsection(1) of section

3. In other words, the Articles of Association of such a company

should contain all the 4 prescriptions namely (i) restriction on the

right to transfer shares (ii) limitation on the number of members (iii)

prohibition of any invitation to the public to subscribe for

shares/debentures and (iv) prohibition of any invitation or

265

acceptance of deposits from persons other than members/Directors

or their relatives.

20.24 The Articles of Association of Tata Sons had the

prescriptions contained in subclauses (a), (b) and (c), but not subclause (d). Therefore, they did not take any steps in terms of subsection (2A) of section 43A after the advent of Act 53 of 2000.

20.25 But Companies Act, 2013 changed the complexion of the

game. It not merely put an end to the concept of deemed public

companies, but also restored the definition of the expression

‘private company” to the position that prevailed before Act 53 of

2000. Section 2(68) of the 2013 Act which defines a “private

company” incorporated only the original 3 prescriptions contained

in subclauses (a), (b) and (c) of clause (iii) of subsection (1) of

section 3. The stipulation inserted as subclause (d) by Act 53 of

2000, is omitted in section 2(68). Section 2(68) of the 2013 Act

reads as follows:

Sec 2 (68) “private company” means a company having

a minimum paidup share capital of one lakh rupees or

such higher paidup share capital as may be

266

prescribed,

and which by its articles,

(i) restricts the right to transfer its shares;

(ii) except in case of One Person Company, limits

the number of its members to two hundred:

Provided that where two or more

persons hold one or more shares in a

company jointly, they shall, for the

purposes of this clause, be treated as a

single

member:

Provided further that—

(A) persons who are in the employment of

the company; and

(B) persons who, having been formerly in

the employment of the company, were

members of the company while in that

employment and have continued to be

members after the employment ceased,

shall not be included in the number of members;

and

(iii) prohibits any invitation to the public to

subscribe for any securities of

the company;

20.26 But Companies Act, 2013, created one confusion.

Different provisions of the Companies Act, 2013, came into force on

267

different dates (driving people crazy). Section 2(68) which defines a

private company, came into force on 12092013 vide S.O. 2754 (E)

dated 12092013. This notification issued under section 1(3) of the

2013 Act, fixed 12092013 as the appointed date for the coming

into force of section 2(68).

20.27 But on 12092013, the date appointed for the coming

into force of section 2(68) of the Companies Act, 2013, the old Act,

namely the Companies Act, 1956 had not been repealed. The

provisions for repeal are contained in Section 465 of The Companies

Act, 2013. Section 465(1) repeals the 1956 Act, subject to certain

stipulations mentioned in the provisos there under. Subsection (2)

of Section 465 of the Companies Act, 2013 provides a list of matters

which will stand saved despite the repeal of the 1956 Act. Subsection (3) of Section 465 makes it clear that the mention of

particular matters in Subsection (2) shall not be held to prejudice

the general application of Section 6 of the General Clauses Act,

1897.

268

20.28 The provisions of Section 465, in so far as they relate to

the repeal of the 1956 Act are concerned, came into force on 3001

2019, vide S.O. 560 (E) dated 30012019. In other words, the

provisions of the 1956 Act continued to be in force till repealed on

30012019. It means that the criteria for a “private company”

under subclauses (a), (b), (c) and (d) of clause (iii) of subsection (1)

of section 3 of the 1956 Act, did not stand repealed until 3001

2019. But the new definition of a “private company” under section

2(68) of the 2013 Act had already come into effect on and from 12

092013.

20.29 As a result, we had 2 definitions of the expression

“private company” from 12092013 [the date appointed for the

coming into force of section 2(68) of the 2013 Act] to 30012019

(the date on which section 3(1) of the 1956 Act became a dead letter

consequent upon the repeal of the 1956 Act through the notification

of the repeal provision under section 465).

269

20.30 Therefore, we have to fall back upon section 465(3) of the

2013 Act to conclude that section 2(68) of the 2013 Act will prevail

over section 3(1)(iii) of the 1956 Act. In other words, on and from

12092013, the question whether a company is a private company

or not, will be determined only by the definition of the expression

“private company” found in section 2(68) of the 2013 Act.

20.31 The articles of association of Tata sons contain the

restrictions prescribed in subclauses (a), (b) and (c) of Section 3(1)

(iii) of the 1956 Act, but they do not satisfy the requirement of subclause (d) incorporated in the year 2000. However, on and from 12

092013, which is the date appointed for the coming into force of

section 2(68) of the 2013 Act, the articles of association of Tata

Sons satisfy the requirements of Section 2(68) of the 2013 Act.

Therefore, it was and it continues to be a private company.

20.32 In other words, the status of Tata Sons

(i) was that of a private company till 31011975;

270

(ii) was that of a deemed public company under section 43A

from 01021975 till 12122000;

(iii) was that of a company that continued to be a deemed to be

public company from 13122000 till 11092013 by virtue of

section 3(1)(iii) of the 1956 Act as amended by Act 53 of 2000 with

effect from 13122000; and

(iv) was that of a private company with effect from 12092013

within the meaning of section 2(68) of the 2013 Act.

20.33 Interestingly, it is not disputed by anyone that today Tata

Sons satisfy the parameters of section 2(68) of the 2013 Act. The

dispute raised by the S.P. Group and accepted by NCLAT is only

with regard to the procedure followed for reconversion. NCLAT was

of the opinion that Tata Sons ought to have followed the procedure

prescribed in Section 14(1)(b) read with Subsections (2) and (3) of

Section 14 of the Companies Act, 2013 for getting an amended

certificate of incorporation. NCLAT was surprised (quite

surprisingly) that Tata Sons remained silent for more than 13 years

from 2000 to 2013 without taking steps for reconversion in terms of

Section 43A(4) of the 1956 Act. While on the one hand, NCLAT took

271

note of the “lethargy” on the part of Tata Sons in taking action for

reconversion, NCLAT, on the other hand also took adverse notice of

the speed with which they swung into action after the dismissal of

the complaint by NCLT.

20.34 But what NCLAT failed to see was that Tata sons did not

become a public company by choice, but became one by operation

of law. Therefore, we do not know how such a company should also

be asked to follow the rigors of Section 14(1)(b) of the 2013 Act. As

a matter of fact, Section 14(1) does not ipso facto deal with the issue

of conversion of private company into a public company or vice

versa. Primarily, Section 14(1) deals with the issue of alteration of

Articles of Association of the company. Incidentally, Section 14(1)

also deals with the alteration of Articles “having the effect of such

conversion”.

20.35 By virtue of the proviso to subsection(1A) of Section 43A

of the 1956 Act, Tata Sons continued to have articles that covered

the matters specified in subclauses (a), (b) and (c) of Clause(iii) of

Subsection(1) of Section 3 of the 1956 Act. Though it did not have

272

the additional stipulation introduced by Act 53 of 2000, namely the

stipulation relating to acceptance of deposits from public, this

additional requirement disappeared in the 2013 Act. Therefore, Tata

Sons wanted a mere amendment of the Certificate of Incorporation,

which is not something that is covered by Section 14 of the 2013

Act. NCLAT mixed up the attempt of Tata Sons to have the

Certificate of Incorporation amended, with an attempt to have the

Articles of Association amended. Since Tata Sons satisfied the

criteria prescribed in Section 2(68) of the 2013 Act, they applied to

the Registrar of companies for amendment of the certificate. The

certificate is a mere recognition of the status of the company and it

does not by itself create one.

20.36 As pointed out by this court in Ram Parshotam Mittal

Vs. Hillcrest Realty25, “it is not the records of the Registrar of

Companies which determines the status of the company”. The status

of the company is determined by the Articles of association and the

statutory provisions.

25 (2009) 8 SCC 709

273

20.37 NCLAT was wrong in thinking that Tata Sons ought to

have taken action during the period 20002013 and obtained

approval of the Central Government to become a private company

under Subsection (4) of Section 43A of the 1956 Act. Subsection

(11) of section 43A, inserted under Act 53 of 2000 made all subsections of Section 43A except subsection (2A), inapplicable on and

after the commencement of the Act. Therefore, it is clear that Subsection (4) ceased to exist on and from 13.12.2000 and hence the

question of Tata Sons seeking the approval of the Central

Government under Subsection (4) during the period 20002013 did

not arise.

20.38 The only provision that survived after 13.12.2000 was

Subsection (2A) of Section 43A. It survived till 30012019 until the

whole of the 1956 Act was repealed. There are two aspects to Subsection (2A). The first is that the very concept of “deemed to be

public company” was washed out under Act 53 of 2000. The second

aspect is the prescription of certain formalities to remove the

remnants of the past. What was omitted to be done by Tata Sons

274

from 2000 to 2013 was only the second aspect of Subsection (2A),

for which Section 465 of the 2013 Act did not stand as an

impediment. Section 43A(2A) continued to be in force till 3001

2019 and hence the procedure adopted by Tata Sons and the RoC

in July/August 2018 when section 43A(2A) was still available, was

perfectly in order.

20.39 As rightly held by this court in Darius Rutton

Kavasmaneck vs. Gharda Chemicals Ltd26, Parliament always

recognised the possibility of a deemed public company again

reverting back to the status of a private company. Though this court

took note of the conflict between section 27(3) and section 3(1)(iii)

(d), after the amendment by Act 53 of 2000, this court nevertheless

held in Gharda Chemicals that by incorporating the requirement of

subclause (d) of section 3(1)(iii) in the Articles of Association, a

deemed public company can revert back to its status as a private

company, in view of subsection (2A) of section 43A, by

incorporating necessary provisions in the Articles. In simple terms,

26 (2015) 14 SCC 277 [see the editor’s note in the SCC report regarding the conflict between

sec.27(3) and sec.3(1)(iii)(d)]

275

a company which becomes a deemed public company by operation

of law, cannot be taken to have undergone a process of

fermentation or coagulation like milk to become curd or yogurt,

having an irreversible effect.

20.40 Therefore, NCLAT was completely wrong in holding as

though Tata Sons, in connivance with the Registrar of companies

did something clandestinely, contrary to the procedure established

by law. The request made by Tata Sons and the action taken by the

Registrar of Companies to amend the Certificate of Incorporation

were perfectly in order.

20.41 It was argued on behalf of SP group (i) that in 1995 Tata

Sons allowed renunciation of entitlement to rights issue, in favour

of rank outsiders, throwing the restriction contained in section 3(1)

(iii) to the wind (ii) that till September 2002, Tata Sons accepted

deposits from public and hence subclause (d) of section 3(1)(iii) was

not satisfied (iii) that as per the circular of the Department of

Company Affairs, a company which does not approach the RoC for

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reconversion would be deemed to have chosen to remain as a public

company (iv) that as per RBI circular dated 112002 private

companies accepting deposits would become public companies (v)

that till the year 2009, Tata Sons chose to describe itself only as a

public company in the forms filed under Rule 10 of the Companies

(Acceptance of Deposits) Rules, 1975 (vi) that the conversion

adversely affected the ability of Tata Sons to raise funds increasing

borrowing costs (vii) that Tata Sons will be required to refund the

investments made by insurance companies on account of the

conversion and (viii) that the act of conversion lacked probity and

was also prejudicial to the interests of the minority shareholders

and the company as well as independent directors.

20.42 But we are not impressed with the above contentions.

Once the company had become a deemed public company with

effect from 121975, the privileges of a private company stood

withdrawn and the company was entitled in law to allow

renunciation of shares under rights issue. In any case, the validity

277

of what was done in 1995 was not in question. That they accepted

deposits from public till September 2002, is the reason why they

were not reconverted as a private company at that time. Once a new

definition of the expression “private company” came into force with

effect from 12092013 under section 2(68) of the 2013 Act, the only

test to be applied is to find out if the company fits into the scheme

under the new Act or not. We need not go to the circulars issued by

the department or the RBI when statutory provisions show the path

with clarity. The description of the company in the forms filed under

Rule 10, reflected the true position that prevailed then and they

would not act as estoppel when the company was entitled to take

advantage of the law. That the ability of the company to raise funds

has now gone and that the company will have to repay the

investments made by insurance companies, are all matters which

the shareholders and the Directors are to take care. The question

before the court is whether the reconversion is in accordance with

278

law or not. The question is not whether it is good for the company

or not.

20.43 The real reason why SP group and CPM are aggrieved by

the conversion is, that most of their arguments are traceable to

provisions which apply only to public and listed public companies.

If reconversion goes, they may perhaps stand on a better footing.

But that would tantamount to putting the cart before the horse.

One may be entitled to a collateral benefit arising out of a

substantial argument. But one cannot seek to succeed on a

collateral issue so as to make the substantial argument

sustainable.

20.44 Therefore, question of law No. 5 is accordingly answered

in favour of Tata Sons and as a consequence, all the observations

made against the appellants and the Registrar of companies in

Paragraphs 181, 186 and 187 (iv) of the impugned judgment are set

aside.

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21. Conclusion

21.1 Thus in fine, all the questions of law are liable to be

answered in favour of the appellantsTata group and the appeals

filed by the Tata Group are liable to be allowed and the appeal filed

by S.P. Group is liable to be dismissed. But before we do that we

should also deal with the application moved by S.P. Group before

us during the pendency of these proceedings, praying for the

alternative relief of directing Tata Sons and others to cause a

separation of ownership interests of the S.P. Group in Tata sons

through a scheme of reduction of capital by extinguishing the

shares held by the S.P. Group in lieu of fair compensation effected

through a transfer of proportionate shares of the underlying listed

companies, with the balance value of unlisted companies and

intangibles including brand value being settled in cash.

280

21.2 Interestingly, such an application was filed after Tata

Group moved an application for restraining S.P. Group from raising

money by pledging shares and this court passed an order of status

quo on 22.09.2020. For the first time S.P. Group seems to have

realized the futility of the litigation and the nature of the order that

the Tribunal can pass under Section 242. This is reflected in

Paragraph 62 of the application, where S.P. Group has stated that

they are seeking such an alternative remedy as a means to put an

end to the matters complained of.

21.3 As a matter of fact, S.P. Group should have sought such

a relief from the Tribunal even at the beginning. As we have pointed

out elsewhere a divorce without acrimony is what is encouraged

both in England and in India under the statutory regime.

21.4 But in an appeal under Section 423 of the Companies

281

Act, 2013, this Court is concerned with questions of law arising out

of the order of NCLAT. Therefore, we will not decide this prayer. It

should be pointed out at this stage that Article 75 of the Articles of

Association is nothing but a provision for an exit option (though one

may think of it as an expulsion option). After attacking Article 75

before NCLT, the S.P. Group cannot ask this Court to go into the

question of fixation of fair value compensation for exercising an exit

option. What is pleaded in Paragraph 72 of the application for

separation of ownership interests, require an adjudication on facts,

of various items. The valuation of the shares of S.P. Group depends

upon the value of the stake of Tata Sons in listed equities, unlisted

equities, immovable assets etc., and also perhaps the funds raised

by SP group on the security/pledge of these shares. Therefore, at

this stage and in this Court, we cannot adjudicate on the fair

compensation. We will leave it to the parties to take the Article 75

route or any other legally available route in this regard.

282

21.5 In the result, all the appeals except C.A. No.1802 of 2020

are allowed and the order of NCLAT dated 18.12.2019 is set aside.

The Company Petition C.P. No. 82 of 2016 filed before NCLT by the

two Companies belonging to the S.P. Group shall stand dismissed.

The appeal C.A. No.1802 of 2020 filed by Cyrus Investments Pvt.

Ltd., and Sterling Investments Corporation Pvt. Ltd. is dismissed.

There will be no order as to costs.

All IAs including the one for causing separation of ownership

interests of the S.P. Group in Tata Sons namely IA No.111387 of

2020, are dismissed.

……………………………..CJI

(S.A. BOBDE)

……………………………….J.

(A.S. BOPANNA)

………………………………..J.

(V. RAMASUBRAMANIAN)

New Delhi

March 26, 2021

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