AI Drafter 
TaxTMI 
TaxTMI 
2017 (1) TMI 1667
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...., traveling bags, springs, boot and shoe, leather dressers, tanners and every description of leather goods and leather chemicals. 3. It IS the admitted case of the parties that as on 31.3.2014, respondent No.2 had 10480 equity shares being 35.35%, respondent No.3 7020 equity shares (23.68%), the petitioner had 10850 equity shares (36 50%) and Madhan Mohan impleaded as respondent No.4 had 1300 equity shares (04.38%) Respondents No.2 and 4 are the brothers and respondent No.3 the sister of the Wife of the petitioner. It is also not disputed that Smt. Nasib Kaur mother of petitioner, who died on 27.7.2011 , was earlier the shareholder along with the respondents, but management of the Company was being run by Jatinder Kumar (R-2) and Pushpa Devi (R3). The petitioner became the shareholder after the death of his mother and on his retirement from Government service in the year 2013. The R-2 and R-3 are Directors of the Company since 22.9.1994 whereas the petitioner was appointed as promotor Director on 21.12.2013. Form 32 in this regard is Annexure P-2. It is stated that after the petitioner became a shareholder, he started taking interest in the affairs of respondent No.1 Company and....
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....case at Phagwara. It was also recorded that R-3 could not provide accurate financial position of the Company because of non availability of pages Nos.48 to 65 of Summary Ledger for the period from November, 2008 to March, 2010. It was decided that the petitioner shall supply the above record to R-3 through Ashok Kumar. It is also recorded 'n the minutes that respondent No.3 expressed her dissent regarding appointment of Mrs.Nachhattar Virdi, but the petitioner being Chairman of the meeting exercised the right of casting vote in terms of Article 44 of Articles of Association and passed the resolution. 6. it is further stated that R-2 and R-3 thereafter sent a letter dated 23.3.2015 (Annexure P-6) to the petitioner alleging therein {hat documents. letters, minutes book and the proceedings books have been taken away by the petitioner from the registered office. The petitioner was asked to shift the documents to the registered office of the Company. In reply thereto, the petitioner vide letter dated 29.3.2015 reiterated the fact about the dissent of R-3 on the appointment of Nachhattar Virdi as Addl. Director in the meeting held on 21 .3.2015 it was also requested reply dated 29....
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....he Companies Act, 2013 for calling Extra-ordinary General Meeting to move Special Resolution under Section 169 of the Act for removal of the petitioner from the Directorship. R-2 prepared notice dated 31 .03.2015 addressed to all the shareholders for the Extra-ordinary General meeting to be held on 07 05.2015. It is the version of the petitioner that acknowledgement dues of the registered notice show that these were despatched on 24.04.2015 to the shareholders. 9. As per the acknowledgement dues, the notice was sent to petitioner at his two addresses, one at the registered office of the Company and the other at the address of the petitioner mentioned in the memo of the parties. The track report of the post office attached relates to movement of the registered article from 24.04.2015 to 30.4.2015, for suggesting that till 30.04.2015, the notice had not been delivered to the petitioner. 10. It is further stated that form DIR 12 was uploaded under the digital signatures of respondent No.3, which refers to resolution No.7 dated 31.3,2015 regarding removal of petitioner as Director, whereas as per the minutes of the meeting, this resolution was passed in the meeting dated 7.5.2015....
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....ch notice was issued to them by the petitioner and there being only three Directors of the Company, the Quorum for meeting was incomplete. The minutes of the meeting (Annexure P-5) dated 21.03.2015 are stated to be forged and fabricated. According to the respondents, the petitioner had no authority to call the meeting of the Board of Directors. It was stated that the statutory books and other record was taken away by the petitioner for which the respondents issued a letter dated 23.03.2015 (Annexure P-6) asking him to shift the documents including minutes book and proceedings books from his house to the registered Office Of the Company. 14. With regard to the minutes of the meeting dated 14.04.2015, it is stated that the petitioner came to the registered office of the Company and was clearly told that he was not authorised to issue notice and agenda for the Board meeting. The petitioner initially agreed for it, but soon started insisting that he will chair the meeting and his wife Nachhattar Virdi will attend the same. The petitioner started creating nuisance and left the premises. It is, therefore. stated that the minutes of the meeting dated 14.04.2015 (Annexure P-8) are forge....
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....o the petitioner before his removal and they nave misused their position being majority shareholders. 17. The petitioner filed CA No-14 of 2016 for placing on record the additional documents with certain interim prayers. The additional documents are the audited annual financial statements for the financial years 2014-15 and 2015-16. Reply to CA No-14 of 2016 was also filed by the respondents. 18. We have heard learned counsel for the parties and have perused the records extensively with their able assistance. The petitioner has also filed the written submissions, which have also been perused. In the earlier written submissions dated 09.1 1 .2016, the petitioner wanted to intimate the details of the amounts siphoned off by the respondents along with documents with a prayer among others that the respondents be directed to produce the record of the Company. As per order dated 18.02.2016 passed by Hon'ble Chairman of the then Company Law Board, the respondents were directed to deposit the statutory record with the Bench Officer. It was Informed on by learned counsel for respondents that the said record was deposited vide letter dated 27.04.2016 but not received al....
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....ing dated 30.09.2014. It was reiterated that the petitioner in fact had taken away the record of the Company and did not return the same even after notice given to him and therefore, ODR No 425, dated 28.49015 was lodged at the police station on the complaint of respondent No.2. The record is stated to have been missing since 20.04.2015 as per this DDR, but there is no allegation in the DOR about the petitioner having taken away the records. The learned counsel for the respondents vehemently contended that the petitioner being their real brother-in-law, the respondents never wanted to put him in trouble, though there was a notice already sent to the petitioner on 23.03.2015 about his having taken away the record of the Company to his residence. The receipt of the letter dated 23.03.2015 is admitted in the reply dated 29.03.2015 of the petitioner reiterating that the letter dated 23.03.2015 shall be placed before meeting in the next Board meeting scheduled to be held on 14.04.2015. According to the petitioner, this meeting was attended by the respondents. though they have denied the genuineness of the said minutes. 22. On 07.10.2016, the respondents were directed to file an affid....
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....6 PM as mentioned on the copy of email which is part of Annexure P-3 and the acknowledgement due showing despatch of the notice by the registered post is dated 16.03.2015. Any how the respondents had shown their inability to attend the meeting. The petitioner rellies upon minutes of the meeting Annexure P-5. On bare perusal of the same, the document seem to be quite suspicious. If it was a meeting of the Board of Directors, then how the third persons like Ashok Kumar and Prem Kumar, whose presence is also recorded in the attendance sheet could be invited This appears to have been done simply to create evidence. 26. In the notice, the meeting was proposed to be held on 2103.2015 at 1 1.00 AM at the registered office of the Company. It is, however, recorded in the minutes Annexure P-5 that the other Directors of the Company were not present at the scheduled time and place and therefore, the meeting could not be held. However, after obtaining confirmation from R-3, the meeting was rescheduled at 2.00 PM at flat No.504. Block F-1, Nittshre Apartments. Sourya Green, Surya Enclave, Jalandhar. 27. There is apparently no indication in the minutes that the change of time and venue of ....
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....he had shifted the record from registered office of the Company to his residence. In the absence of original minutes book, it is not possible to accept the veracity of these minutes. Same is the consequence of the Board meeting dated 02.05.2015. The minutes of meeting dated 02.05.201 5 are Annexure P-IO, where again the presence of both the respondents and Nachhattar Virdi is recorded. It was for the petitioner to keep in safe custody the minutes book especially, when the allegations had already been made against him about having shifted the documents of the Company to his residence. 31 . Learned counsel for the respondents vehemently contended that the respondents were thus left with no alternative, but to decide upon the fate of the petitioner as member of the Board of Directors. According to the petitioner the process of removal of the petitioner as Director of the Company was initiated on the basis of better dated 30.03.2015 of R-3, which is part of Annexure P-14. This is a special notice under Section 1 15 of the Company Act 2013, on the basis of which, R-2 addressed a letter dated 31.03.2015 to an the shareholders of the Company for holding Extra-ordinary General Meeting o....
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....cuments down loaded from MCA Portal. 34. The only document, from which the process of holding Extraordinary Genera' Meeting to move a special resolution under Section 169 of the Companies Act, 2013 for removal of the petitioner from the Directorship is the notice dated 30.03.2015 sent to the Directors of the Company by R-3. The minutes book of the meeting of the Board of Directors produced by the respondents contains the first meeting held on 31.3.2015 to consider the removal of petitioner from Directorship. There is agenda item No.9, which shows that information was given to the Board by R-2 about receipt of notice under Section 115 of the Companies Act, 2013 for removal of petitioner and the consent of the members was accorded for removal of the petitioner with effect from 07.05.2015 and the next agenda item No. 10 refers to the resolution for holding Extra-ordinary General Meeting of the Company on 07.05.2015 for the purpose. In the attendance sheet, the only Directors present are R-2 and R-3 and at item No.2, it is observed that the petitioner has not applied for leave of the absence, the Board unanimously marked him absent. 35. There is no indication in agenda item N....
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....f the Act, was served upon the petitioner. Prima-facie therefore the termination of petitioner as director is not legal though the same would be subject to the final decision in the pending civil suit filed by the petitioner. if the same is maintainable. 38 The respondents in reply to CA No.14 of 2016, filed a lease agreement between the respondent company and Mis M.A. Traders. Learned petitioner's counsel has not disputed the fact during argument that the business proposition was found in losses in May, 2005 and the factory was leased out to a tenant. Now a fresh lease deed is stated to have been executed because the earlier lease period had expired on 13.04.2013. This lease deed is for a period of five years with the rental of One Lac per month in the first year with regular increases in the subsequent years as mentioned in the document. It is rather recorded in the minutes dated 14.04.2015 relied upon by the petitioner as stated in para 7.9 that the issues faced by the staff of present lessee shall be attended. 39. The learned counsel for petitioner, however, submits that there is no reference to any Board's resolution authorising to execute lease agreement in the ....
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....from the Board of Directors. We thus issue the following directions; i) Mis Khurana Rajiv & Company, Chartered Accountant, SCO No.83940, Sector 22-A, IInd Floor, Chandigarh (from out of the panel of Valuers approved by the High Court of Punjab and Haryana as informed by Official Liquidator to the Registrar of our Bench) are appointed as independent Valuer for determining the fair value of the shares he'd by the petitioner with cut off date as 31.03.2015. The Valuer shall determine the fair value of the shares keeping in mind that the manufacturing business of the Company IS closed for many years and the factory of the Company except for 1000 square yards of vacant land has been leased out for about eight years, as apparent from terms of the lease deed. The Valuer shall determine the value by all the recognised methods and applicable rules and regulations on the said date i e. 31.03.2015; ii) The parties are directed to extend cooperation to the sad Valuer. The Company shall submit all the official documents/papers for the purpose for valuation as desired/required by the Valuer; iii) The Valuer shal supply to the parties the copy of the report to which....