TaxTMI 
TaxTMI 
2017 (12) TMI 453
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....ressive behaviour and mismanagement of affairs of the first respondent company. (q) to reprieve the petitioner and his family members from statutory liability (r) to direct respondent No. 3 to repay remuneration received by him from the first respondent company [B] Amendments to add para 8(i) to 8(j) of the petition: (i) restrain respondent No. 3 from discharging functions as Director of the first respondent company (j) to restrain respondent No. 3 from getting any remuneration as Director. [C] Amendments in the body of the petition:- (a) Replace the following at paragraph 2 of the petition "The petitioner is the main promoter and Director of the Company. He is holding 44,200 equity shares of Rs. 10 each altogether, fully paid up which constitutes about 44% of the issued and subscribed capital of the Company". [D] Add the following at paragraph 5 (g)(iii)(a) to 5(g)(iii)(h) of the petition:- (a) "The appointment of respondent No. 3 itself is illegal and the same has been done without the consent of the petitioner. Respondent No. 3 was appointed as a Director of the respondent No. 1 company under section 152 of the Companies Act, with effect from 02.05.2015 and f....
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.... has been appointed as Director of the respondent company in violation of section 152 and other applicable provisions of the Companies Act, 2013. (d) Hence the appointment of respondent No. 3 as Director in the respondent company is non-est, invalid and illegal ab initio. The petitioner, vide letter dated 22.07.2016 had shown his concern on the appointment of respondent No. 3 as director of the company. The petitioner had also sought documents regarding the alleged appointment vide the same letter. Instead of providing the relevant documents pertaining to the same, respondent No. 2 gave excuses and confirmed that the matter of the appointment of respondent No. 3 is sub-judice. Thereby respondent No. 2 has expressed his inability to provide documents pertaining to appointment of respondent No. 3 (Copy of the letter attached herewith and marked as Exhibit - 4 A). (e) This indicates that the appointment of respondent No. 3 is illegal and fraudulent as no proper procedure was followed for appointment of Director of the respondent company as mandated and enforced by the Companies Act, 2013 read with the Secretarial Standards. (f) The petitioner, vide letter dated 03.01.2017, also ....
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....nst the interest of the company resulting into huge financial losses and avoidable statutory liabilities resulting into erosion of shareholders' net worth. 03. In this application, respondents No. 1 to 5 filed reply stating that the proposed amendments are not necessary to determine the real controversy between the parties; the amendment introduces new causes of action and changes the entire tenor and nature of the petition. It is stated that the issue of removal of respondent No. 3 as Director has been raised for the first time in the amendment application although petitioner has got knowledge of the same but the applicant chose not to make any claim and he has waived his right to challenge the appointment of respondent No. 3 as director of the first respondent company. Regarding the issue of buying raw materials at higher rates and selling products at lower rates, no such whisper of the issue was made in the main company petition and introduction of such issue will cause the introduction of new cause of action. 04. In the rejoinder the petitioner has reiterated the same facts which he has stated in the petition. It is stated in the rejoinder that applicant came to know about th....
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....B Regulations and Order VI to Rule 17 of CPC is that the amendment must be necessary for the purpose of determining the real question in controversy between the parties. 11. From the aforesaid statutory provisions and rules it is clear that all amendments aimed must be for the purpose of determining the real controversy in question between the parties. The next question is at what stage the application seeking amendment shall be filed by the parties. 12. In the case on hand filing of the pleadings completed by 23rd December, 2016. Thereafter, applicant filed in IA 30 of 2017 seeking amendment of the pleadings on 31.01.2017. It was withdrawn by the applicant petitioner with liberty to file fresh application on 08.03.2017. Thereafter, applicant original petitioner filed this petition IA 54 of 2017. IA 30 of 2017 was filed on 31.01.2017 and pleadings in this case concluded on 23.12.2016. Rejoinder was filed on 23.12.2016. Thereafter, first amendment application in IA 30 of 2017 which is withdrawn by the petitioner that was filed on 31.01.2017 itself was beyond 30 days from the date of completion of pleadings. More so the premature application which is filed on 03.11.2017. 13. In Co....
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....here a party had acted with due diligence or not, would depend upon the facts and circumstances of the case and no hard and fast rule or strait-jacket formula can be laid down." 15. In the aforesaid decision of Hon'ble Company Law Board, referring the decision in Uniworth Resorts Ltd., In re [2008] 145 Comp. Cas. 67 (CLB) observed that the principle covering the law relating to amendment of pleadings, contained in order VI, Rule 17 of the CPC and the regulation 46 of Company Law Board Regulations applies to CLB proceedings and it cannot be said that proviso 17 of CPC is not applicable to the proceedings looking to the provisions of Regulation 46 of CLB Regulations. 16. As per CLB Regulations 46 amendment application can be filed at any stage of the case but as per Rule 155 of NCLT Rules amendment application shall be filed within a period of thirty days from the date of completion of pleadings. This is a case filed in the year 2015 i.e. on 25.08.2015 i.e. before sections 241 and 242 of the Companies Act, 2013 came into force. Therefore, it may be said that CLB Regulations has to be followed because it is a case that is admitted under sections 397 and 398 of the Companies Act, 195....