ICSI-SEP2012-9P1.qxd 9/5/2012 11:22 AM Page 1 ICSI-SEP2012-9P1.qxd 9/5/2012 11:22 AM Page 2 ICSI-SEP2012-9P1.qxd 9/5/2012 11:22 AM Page 3 ISSN 0972-1983 09 CHARTERED SECRETARY R The Council [ Registered under Trade Marks Act, 1999 ] President Nesar Ahmad Vol. : XLII No. 9 Pp 1073-1232 September - 2012 Vice President S. N. Ananthasubramanian From the Members Anil Murarka 1084 (in alphabetical order) Ardhendu Sen President Arun Balakrishnan Ashok Kumar Pareek Atul Hasmukhrai Mehta Legal From the Atul Mittal 1148 1156 B. Narasimhan (LW-97-104) World (GN-185-214) Government Gopalakrishna Hegde 1186 News from the 1231 Our Harish Kumar Vaid Institute Members Pradeep Kumar Mittal Renuka Kumar (Ms.) ARTICLES ( A 338-397 ) Revathy Iyer (Ms.) Arbitrability of Disputes Relating to Oppression and Mismanagement 1088 Sanjay Grover Arbitrability of Disputes Relating to Oppression and Mismanagement 1093 Sridharan R Arbitrability of Disputes Relating to Oppression and Mismanagement 1100 Sudhir Babu C Arbitrability of Disputes Relating to Oppression and Mismanagement - Revisiting the Legal Provisions1 1106 U D Choubey (Dr.) Judicial View : Demystifying Arbitration in Disputes of Oppression Umesh Harjivandas Ved and Mismanagement 1115 Vikas Yashwant Khare Arbitrability of Disputes Relating to Oppression & Mismanagement 1119 Cases of Oppression and Mismanagement - A close look at Secretary & the jurisdiction of CLB vis-à-vis an Arbitral Tribunal 1127 Chief Executive Officer N. K. Jain Arbitrability of Disputes Relating to Oppression and Mismanagement 1134 Arbitrability of Disputes Relating to Oppression and Mismanagement 1138 Editorial Advisory Board Arbitrability of Disputes Relating to Oppression and Mismanagement 1144 Annual Subscription Chairman Justice D. R. Deshmukh Inland : Rs. 1000 (Rs. 500 for Students of the ICSI) Foreign : $100; £60 (surface mail) Single Copy : Rs. 100 Members Chartered Secretary is normally published in the first week of every (in alphabetical order) D.P. Dash month. Non-receipt of any issue should be notified within that month. Articles on subjects of interest to company secretaries are welcome. G.R. Bhatia Views expressed by contributors are their own and the Institute does Girish Ahuja (Dr.) not accept any responsibility. The Institute is not in any way Harish K. Vaid responsible for the result of any action taken on the basis of the advertisement published in the journal. All rights reserved. No part K S Chalapati Rao (Prof.) of the journal may be reproduced or copied in any form by any means Nawal Kishor (Prof.) without the written permission of the Institute. The write ups of this Om Prakash Dani issue are also available on the website of the Institute. Pavan Kumar Vijay Edited, Printed & Published by R.S. Nigam (Prof.) N. K. Jain for The Institute of Company Secretaries of India, Renu Budhiraja (Ms.) ICSI House , 22, Institutional Area, Lodi Road, New Delhi- 110 003. Phones : 41504444, 45341000, Grams : COMPSEC Sanjeev Kumar (Dr.) Fax : 91-11-24626727 T V Narayanaswamy E-Mail : [email protected] Vinod K. Singhania (Dr.) Website : http://www.icsi.edu Design & Printed at Editor & Publisher N. K. Jain M. P. Printers B-220, Phase II, Noida-201305 Consulting Editor V. Gopalan Gautam Budh Nagar, U. P. - India Legal Correspondent T. K. A. Padmanabhan September 1073 CHARTERED SECRETARY 2012 ICSI-SEP2012-9P1.qxd 9/5/2012 11:22 AM Page 4 IMAGES Conferment of IOD Distinguished Fellowship - 01 Nesar Ahmad (President, The ICSI) receiving the IOD Distinguished Fellowship from Dr. M. Veerappa Moily (Hon'ble Minister of Corporate Affairs & Power) in the presence of Lt. Gen. J.S. Ahluwalia, PVSM (Retd.) (President, Institute of Directors). Meeting with DG, EPZ Authority Dar es Salaam, 02 Tanzania - Standing from Left: Umesh H. Ved(Central Council Member, the ICSI), Dr.A. Meru (DG, EPZ Authority, Dar es Salaam), Gandence Cassian Kayombo (Hon'ble Member of Parliament, Govt. of Tanzania) and Nesar Ahmad. 16th ICPSK Annual International Conference on 03 Governance Perspectives in Harnessing Natural 01 Resources for Development held at Kwale County, Kenya. Group photo of dignitaries and delegates with Dalmas Otieno (Hon'ble Public Service Minister, Govt. of Kenya, sitting 8th from left, first row). Second ICSI Corporate Governance Week on 04 Good Governance for Sustainability - Programme held at Bangalore - Release of ICSI Publication titled Role of Company Secretary in Corporate Governance - Standing from Left:GopalakrishnaHegde, G. M. Ganapathi, Justice M.N. Venkatachaliah( former Chief Justice of India), S.N.Ananthasubramanian, S.S.Marthi and C. Dwarkanath. Programme Held at Hyderabad - Sitting on 05 the dais from Left: VasudevaRaoDevaki,Shujath Bin Ali,C. Sudhir Babu,ThotaNarasimham (Hon'ble Minister for Stamps & Registration, Govt. of Andhra Pradesh),S.N. Ananthasubramanian,Neerabh Kumar Prasad (IAS, Commissioner, Hyderabad Metro Development Authority) and S. S. Marthi. Programme held at Mumbai - Release of ICSI 06 Publication titled Responsibly Managing e- waste - Standing from Left: MahavirLunawat, 02 Chitra Ramakrishna (Jt. Managing Director, NSE), S.N. Ananthasubramanian, Rajeev Agarwal (Whole Time Member, SEBI) and B. Narasimhan. Programme held at Kolkata - Inauguration - 07 Chief Guest AmleshBandopadhyay {Member (Technical), CLB, Kolkata} lighting the lamp. Others standing from Left: S. Gangopadhyay, B.P. Dhanuka, Ranjeet Kanodia, Deepak Khaitan and Anjan Kr. Roy. Programme held at New Delhi - Release of ICSI 08 Publication titled Sustainability Reporting for Sustainable Future -Standing from Left: N.K.Jain, U. Venkataraman(CEO, Currency Derivatives Segment and Whole Time Director, MCX Stock Exchange), Nesar Ahmad, Dr.M. Veerappa Moily (Hon'ble Union Minister of Corporate Affairs & Power), Sunil Kant Munjal (Jt.MD, Hero MotoCorp.Ltd.),P.K. Mittal and Rajiv Bajaj. A view of the dignitaries, invitees and 09 delegates. 03 September 2012 CHARTERED SECRETARY 1074 ICSI-SEP2012-9P1.qxd 9/5/2012 11:22 AM Page 5 2nd ICSI Corporate Governance Week Aug. 27-31, 2012 04 05 06 07 08 09 September 1075 CHARTERED SECRETARY 2012 ICSI-SEP2012-9P1.qxd 9/5/2012 11:22 AM Page 6 IMAGES Meeting of ICSI 10 delegation with Governor of Madhya Pradesh - Ram Naresh Yadav (Hon'ble Governor of Madhya Pradesh interacting with ICSI delegation - From Left: PiyushBindal, Vivek Nayak, Amit Kumar Jain and Dhanraj Singh Thakur. 10 Signing of MOU with NSE 11 of India Ltd. - Standing from Left: K. Hari (Vice President, NSE), K.C. Kaushik, Sonia Baijal, Banu Dandona, Jay Kumar (Asst. VP, NSE), Dr. J. Ravichandran (Director, NSE), S.N. Ananthasubramanian, B. Narasimhan, Atul H. Mehta, Mahavir Lunawat and Prakash K. Pandya. 11 NIRC - Meeting with 12 Corporate Mentors of NIRC - Group Photo of members together with Nesar Ahmad, N. K.Jain, Pavan Kumar Vijay, Rajiv Bajaj, Deepak Kukreja, Ranjeet Pandey, Vineet K Chaudhary, Yogesh Gupta and G. P. Madaan. 12 SIRC - Madurai Chapter 13 - One Day Seminar jointly with ICAI ( Cost Accountants) on Revised Schedule VI & XBRL and CARR and CARO - From Left: Dr. I. Asok, S. Kumararajan, B.T.Bangera (MD, Hi- tech Arai (P) Ltd, Madurai), S.Saraskumar and S. Paramasivan. 13 September 2012 CHARTERED SECRETARY1076 ICSI-SEP2012-9P1.qxd 9/5/2012 11:22 AM Page 7 September 1077CHARTERED SECRETARY 2012 ICSI-SEP2012-9P1.qxd 9/5/2012 11:22 AM Page 8 At a Glance line, these aspects take a back seat and the parties who have Articles (A 338 - 397) p- 1088 toiled together for years, may be decades - being together in ups and downs - part ways - bitterly. What is it that makes partners Arbitrability of Disputes Relating to turn their back towards each other - what is that turns them into p- 1088 Oppression and Mismanagement bitter foes?This article tries to deal with the unwritten and extra- legal aspects of arbitration qua oppression and mismanagement. B.C. Thiruvengadam It also throws light on the possible ways to avoid prolonged his article distinguishes between contractual rights and litigation in the courts of law and instead go for amicable T statutory rights of a member of a company. The statutory settlement. rights are further classified and the importance of qualified minority rights of a member are discussed. It also discusses application of Arbitrability of Disputes Relating to these rights under Sections 397 and 398 of the Companies Act, Oppression and Mismanagement - p- 1106 1956 and non-application of it in a winding-up petition under just and equitable grounds. It also highlights that a proceeding under Revisiting the Legal Provisions oppression and mismanagement is a proceeding in rem and powers under Section 402 of the Companies Act, 1956 cannot be T K A Padmanabhan exercised by an arbitrator. According to the author, a statutory right he Company Law Board cannot refer the dispute involving cannot be waived as the same is coupled with a legal duty. While T oppression and mismanagement under sections 397 and highlighting the importance to thwart any attempt to oust the 398 of the Companies Act to an arbitrator for adjudication. The jurisdiction of Company Law Board in a petition for oppression and disputing parties themselves, who satisfy the eligibility criteria mismanagement, the author suggests as to how the Company Law under section 399, also cannot settle the dispute involving issues Board should handle situations where petitions are filed for of oppression and mismanagement under sections 397 and 398 oppression and mismanagement to circumvent an arbitration of the Companies Act through arbitration. However, it appears agreement. that a disputing party who does not satisfy the eligibility criteria under section 399, can settle the dispute involving issues of Arbitrability of Disputes Relating to oppression and mismanagement under sections 397 and 398 of p- 1093 the Companies Act by filing a suit before an ordinary civil court of Oppression and Mismanagement appropriate jurisdiction. Even in such circumstances also the dispute cannot be settled by an arbitrator because he cannot V. Durga Rao provide the reliefs as specified under section 402 of the othing prevents the shareholders to get their disputes with Companies Act.