The 1st Reserved Chamber of Business Law of the Court of Justice of São Paulo granted partial relief to an appeal and ruled to dismiss the exclusion of a partner from a commercial company in a partial dissolution action.
According to the reporting judge of the appeal, the mere allegation that the appellant would be jeopardizing the continuity of the company with its conduct (breach of the affectio societatis) does not justify its exclusion. “For that, the configuration of the commission of a serious fault by the partner one seeks to exclude is necessary,” he stated.
According to the case records, the appellant company joined the appellee company – a holding company controlling three companies in the region of the Vale do Paraíba and the São Paulo coast –, having invested more than R$ 18 million. It turns out that the deadlines set for the return on the investment made expired, and the holding company did nothing to pay.
The appellant then began to oversee the group’s management, generating animosity among the partners, which culminated in the partial dissolution action, with a request to exclude the investor company from the company.
According to the reporting judge, none of the facts pointed out constitute a serious infraction. A lack of transparency as to the origin of the funds, not revealing who its real controller would be, and charging high interest were elements accepted by mutual agreement of all the partners and do not prove that the appellant acted with the intent to harm the company.
“This is a situation that has persisted for years, since the beginning of the business relationship between the contracting parties, and this lack of transparency or information was meekly accepted by the company and by the other partners when they admitted the appellant company into the membership,” he emphasized.
The reporting judge stressed, however, that it is a case of invalidating the resolutions taken at the meeting convened by the investor partner, confirming the preliminary injunction granted at the first instance, which rendered ineffective the removal of the administrators.
“The ineffectiveness of the appellant’s exercise of political rights relating to the quotas pledged for its benefit must be recognized, under penalty of fraud against the Law. Therefore, by my vote, I declare invalid the resolution of the meeting for disrespecting the quorum required by the Civil Code for the removal of the administrators.”
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Source: Social Communication TJSP
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