TaxTMI 
TaxTMI 
2017 (5) TMI 1226
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....me to time and finally the petitioner Nos. l and 2 and the respondent No. 2 at all material times, became the Directors of the said Company. It is pertinent to mention herein that the Petitioner No. 2 and Respondent No. 2 are the daughter and son of the petitioner No. l. The Company, at all material times, is closely held a family Company, the shares are divided amongst the members by the petitioner. In course of time, the said Company has also acquired diverse immovable properties, the particulars of which are already given in the pleadings. During the inception of the company, as the respondent No. 2 was only 14 years of age, as such, after his completion of study, the petitioner No. 1 brought the respondent No. 2 in the business. The shares are allotted at the instance of the petitioner No. l without receiving any consideration whatsoever, out of love and affection, with the intention that business of the company is being run by the family members and will be restricted among the family members only. The petitioner(s) also annexed the documents in support of his/their contention. The authorised share capital of the company is Rs. 30,86,500/- divided into 3,08,650 number of e....
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....01-2014 purported to have been issued by the said Company under the signature of Respondent No. 2 that the petitioner No. 2 has been removed from the Board of Directors of the Company and the petitioner No. 1 has also been removed by convening illegal EOGM. The petitioners contended that such removal from the Board of Directors of the said Company are wholly illegal and wrongful. Also, the purported induction of Respondent Nos. 3 to 5 in the Board of Directors of the said Company are also illegal and wrongful and was made behind the back of the petitioners to grab the total control in the company (Annexure 'C page 101 of the petition). After receiving the letter dated 8-01-2014, the petitioner made necessary enquiry and came to learn that the said Company has also illegally and wrongfully uploaded the Form 32 with MCA Portal of the Registrar of the Company showing the said purported removal of the petitioner Nos. 1 and 2 from the Company and purported induction/appointment of the Respondent Nos. 3 to 5. The said MCA portal of the ROC is annexed with the petition and marked as letter "D" (Page-102 of the petition). The petitioner, on coming to know about the illegal acts of ....
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....eeting purportedly issued in the name of the petitioner(s) from 12-04-2013 onwards reflecting different dates of meetings. On perusal of the record and the pleadings as well as the reply filed by the respondent, I found that the main allegation in the Company Petition is removal of the Directors (Petitioners) on the ground of failure to attend three consecutive meetings by the petitioner No. 2 and by way of convening the EOGM, the petitioner No. l was removed and induction of additional Directors, i.e. the Respondent No. 3 to respondent No. 5 in the company. On hearing the submissions of the petitioner's Counsel, ex parte and also on perusal of the reply filed by the respondent(s), the basic point of consideration in the Company petition are as follows: (i) Whether the service of notices of the Board meetings and the EOGM is valid or not; (ii) Whether the removal of the petitioner Nos. 1 and 2 as Directors of the Company are valid or illegal? (iii) Whether the appointment of respondent Nos. 3 to 5 as additional Directors of the Company is invalid/illegal? (iv) Whether the petitioner No. 2 remained absent in the meeting for three consecutive meetings and ceased to continue....
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....he petitioner No. 2 remained absent. Again, on 12-04-2013, similar notices are issued by the Respondent No. 2 as Director of Respondent No. 1, Shyam Saran Gupta, (petitioner No. l) for self as Respondent No. 2, Mrs. Mridula Gupta (Respondent No. 3), Ms. Priyanka Gupta (Respondent No. 4), (wife of Respondent No. 2) and Miss Kashmira Gupta, (Respondent No. 5), (daughter of respondent No. 2) reflecting the date of Board meeting as 20-04-2013 but no notice for meeting dated 20-04-2013 was issued to the Petitioner No. 2 instead, notice for Board meeting for 24-04-2013 is/was issued (page 178 of the reply) : (a) To grant leave of absence; (b) To confirm the minutes of the last board meeting ; (c) To appoint Mrs. Priyanka Gupta and Miss Kashmira Gupta as additional directors of the Company; (d) To discuss and consider any other matter with permission of the chair. The most surprising part is that, this time also the notices are/were sent by hand delivery and shown to have received by one Shri S Jha for all and for Rajnandini Pachisia (petitioner No. 2) one Tarun Halder shown to have received the notice for the Board meeting of 24-04-2013 (page Nos. 173 to 178 of reply by respondent)....
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....1-05-2013, reflects that Smt. Mridula Gupta, (Respondent No. 3), Shri Devvrat Gupta, (Respondent No. 2), Ms. Priyanka Gupta, (Respondent No. 4) and Ms. Kashmira Gupta, (Respondent No. 5), were present and leave was granted to Shri Shyam Saran Gupta, petitioner No. l. In the said meeting the Chairman informed that Smt. Rajnandini Pachasia, Director of the Company is not attending the meetings of the Board of the Directors since 16th August, 2012 and she has also not obtained 'leave of absence' from the Board of Directors and in accordance with Section 183(1)(g) of Companies Act, 1956. She has been ceased to be the Director of the Company and thereby the respondent unilaterally resolved that the cessation of the Office of Director of Smt. Rajnandini Pachasia under Section 283(1)(g) of the Companies Act, 1956 with effect from 21-05- 2013. On further perusal of the record and documents annexed with the reply of respondent(s) as also as alleged by the petitioner's Advocate, it is found that similar notices are/were issued in the similar fashion as said earlier, on 31-08-2013 in the name of the petitioner No. l, Respondent Nos. 2 to 5, showing the date of Board meeting as 0....
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....throw out the petitioners from the Company. Hence, the holding of the EOGM itself was illegal. Further, on perusal of the record and as discussed above, it is found that the notice with regard to holding of meeting of the Board of Directors dated 11-04-2013, 20-04-2013, 24-04-2013 and 21-05-2013 are invalid and not proper and the Respondent No. 3 was never ever been confirmed as Director in pursuant to Section 260 of the Companies Act, 1956 which constitute serious mismanagement in the company. As regards the vacation of Directorship of the Company by the petitioner No. 2 under Section 283(1)(g) of Companies Act, 1956, on the ground that the petitioner No. 2 remained absent consecutively for three meetings, is also not sustainable as the service of notices issued upon the petitioner No. 2, is/was improper and invalid. The petitioner(s) also categorically submitted that they were not aware of the holding of any meeting and did not receive any notice for any of the meetings. As such, the question of remaining absent consecutively for three Board meetings and/or in any meeting, does not arise at all. Hence, showing the petitioner No. 2 as "vacated office" on 20-04-2013 is mala fid....
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....Board meeting dated 11-04-2013, 20-04-2013, 24-04-2013 and 21-05-2013, were not proper one and the same person shown to have received having similar writing on all occasion. Further, the mode and manner as discussed above, in which personal service of notices were/are effected time and again upon petitioner(s) as well as upon respondent(s), are not beyond shadow of doubt. The respondent(s) filed some agenda notices of several meetings and minutes of several meetings signed by the respondent No. 2 in the reply but have not filed any minutes disclosing that the respondent No. 3 had been appointed as an additional director as per resolution approved by the petitioner No. l, when the petitioner No. l was shown as present in meeting dated 11-04-2013. Even no copy of resolution is attached along with Form 32. Since the respondent(s) did not file any original resolution showing the Board of Directors passed the resolution, appointing the Respondent No. 3 to Respondent No. 5 as Additional Directors of the company, it had to be held that the respondents have fabricated Form 32 making the respondent Nos. 3 to 5 as Additional Directors of the company without the knowledge of the petitioner....
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....d to be invoked provided the Director has been served with notices for the Board meetings intimating the date, time and place of the meeting. But in the instant case, notices were never served upon the petitioners. The illegal removal of the petitioners came to knowledge only on 18-01-2013 by the letter of Respondent No. 2 and as such, the petitioners filed the instant Company Petition for redressal of their grievance to protect their legitimate right. Not only this, on filing the instant case, the petitioner(s), for the first time, came to know from the annexures of the reply filed by the respondent about several purported notices as said above, as also pointed out by the petitioner, which was/were never served upon the petitioners. The service of the notice is mandatory as provided under Section 286 of the Companies Act, 1956 which inter alia provides as:- Section 286 : Notice of meetings: (1) Notice of every meeting of the Board of Directors of the Company shall be given in writing to every Director for the time being in India and at his usual address in India to every other Director; (2) Every Officer of the Company whose duty is to give notice as aforesaid and who fails ....