TaxTMI 
TaxTMI 
TaxTMI 
2016 (11) TMI 1452
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....o file the instant company petition invoking the provisions of section 241 of the Act, 2013. Based upon this fact, the prayer has been made to dismiss the company petition as not maintainable. 3. Before any opinion is formed in relation to the maintainability of the company petition, it is necessary to summarise some of the important facts and circumstances that necessitated the petitioner to file the company petition. It could briefly be stated that R1-company is a public religious and charitable trust known by the name and style "The Church of South India Trust Association" ('the company') having registration No. 112 of 1947-48 with CIN: U93090TN1947NPL000346. The company has been registered under section 25 of the Companies Act, 1956 on 26th September, 1947 as can be seen from the Certificate of Incorporation issued by the Registrar of Companies ('RoC'), Madras City. 4. The main object of the company set out in sub-clause 'A' of clause III of the memorandum of association, is to promote the objects of the charity and in particular assist pecuniarily or otherwise all or any of the societies, hostels, tribunalising houses, hospitals, dispensaries, indust....
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....ny petition. The company petition, inter alia, provides as follows: "(i) It has been stated that in WP No. 21343/2011 the hon'ble Madras High Court directed the Registrar of Companies ('RoC'), Tamilnadu, Chennai, to carry out a detailed inspection of the company under section 209A of the Companies Act, 1956 and the RoC has pointed out 27 irregularities and issued show cause notice to the respondents mentioned in the company petition. (ii) There are 43 criminal cases instituted against the respondents which are pending before the Economic Offences Court, Egmore and also before the Regional Director, Ministry of Corporate Affairs, Chennai. It is averred in the petition that when explanation was called for by the RoC with respect to irregularities, the reply that was filed on behalf of the company is as follows: "The official members of CSITA are of on honorary basis and they keep changing over two years and these committee members are religious heads and they are not conversant with the provisions of the Companies Act." The RoC has rejected the explanation and recommended action against the company and its office bearers through Serious Frauds Investigation Office....
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.... appointed Management Committee." 8. The IA numbered as CA No. 12 of 2016 file in CP No. 2 of 2016 has been opposed by the Respondent/Petitioner by filing counter. The first main objection raised is, that Dr. Daniel R. Sadananda and C. Robert Bruce, honorary secretary and honorary treasurer, respectively have no authority to file the IA, because they are not the regular office bearers of the R1-company for the reasons that R1-company came to be incorporated under the provisions of the company law and has its management committee to represent. Therefore, the honorary secretary and the honorary treasurer are not legally entitled to represent R1-company. The second objection taken by the Respondent/Petitioner is that both the honorary secretary and the honorary treasurer who have signed on behalf of R1-company did not have any right to do so. They have already been restrained by an order of injunction in a civil suit pending before the II Additional Senior Civil Judge, Warangal, by an order passed in OS No. 12 of 2016 in IA No. 15 of 2016 and the said order is still in force. The third objection taken by Respondent/Petitioner is that by virtue of provisions of clause IV of the memo....
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....irements specified in clause (a) and clause (b) of sub-section (1) of section 244 of the Act. However, the term 'member' has been used in the proviso, which has been defined under sub-clause (55) of section 2 of the Act, 2013. The above definition of the term 'member' is corresponding to section 2(27) and section 41 of the Companies Act, 1956 ('Act, 1956'). The said provisions of the Act, 1956 came to be interpreted by the Company Law Board/High Courts/Supreme Court in a catena of judgments. Such judicial pronouncements seem to have enlarged the scope of the term 'member'. In other words, the judicial authorities have interpreted the term 'member' liberally. In SVT Spinning Mills v. Palanisamy [2009] 93 CLA 431 (Mad.)/[2009] 151 Comp Cas 233 (Mad.), after having a survey of various judgments, it has been confirmed that for interpreting the term 'member' or 'shareholder' for the purpose of sections 397 and 398 of the Act, 1956, it is not necessary for such person to comply with section 41(2) of the Act, 1956 and a broader meaning to be given to the term 'member' as per section 2(27) of the Act, 1956. 12. However, in re....
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....titioner has not established that he is a member. However, before the relief is finally granted, the petitioner should be able to establish that he is a "member". Here in this case, on one hand, the election said to have been conducted by the Synod provide two years tenure of the said members, but the alleged illegal amendment made in the articles of association provides three years tenure of the members so elected. In these circumstances, the issue of maintainability of the petition cannot be treated as preliminary legal issue as it involves a mixed questions of fact and law, which needs to be tried along with other issues raised. This view is fortified by the ruling given by the Division Bench of the hon'ble Madras High Court reported in [1997] 90 Comp Cas 205. 14. The respondent 1/petitioner states in the company petition that R1-company is a charitable institution which caters to the needs of beneficiaries/stakeholders. It has further been stated that a meeting was conducted on 16th January, 2016 by issuing 40 days' notice to all by various means of communication which has been attended by more than 200 beneficiaries/stakeholders from all over five southern States of S....
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...., who have not mentioned anything either in the IA or in the affidavit filed in support thereof as to how they have been authorised to file the same on behalf of the applicant/R1-company. A simple mention has been made in the said affidavit that they are filing the affidavit on behalf of the applicant/R1-company on the basis of the circular resolution dated 15th September, 2016. But there is no documentary evidence to prove that R1-company has authorised them to file the IA. Therefore, they [secretary & treasurer] have no locus standi to file the IA. The IA is liable to be dismissed in limine on this score alone. Therefore, on this ground and the other reasons stated above, the IA numbered as CA No. 12 of 2016 filed in CP No. 2 of 2016 stands rejected. 17. In the light of the above discussion, I hold that under the attending circumstances, the company petition cannot be dismissed at the threshold because it requires a detailed enquiry into the matter complained of and, thus, in exercise of the powers conferred under proviso to section 244 of the Act, 2013, I waive all the requirements of section 244(1)(b) of the Act, 2013 by treating the company petition under order 1, rule 8 of t....