TaxTMI 
TaxTMI 
2020 (8) TMI 614
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....any Appeal (AT) No. 97 of 2020 being dissatisfied with the order dated 27.05.2020 passed by the 'National Company Law Tribunal', Bench V in Company Petition No. 149/66/ND/2019 in rejecting the petition filed under Section 66(1)(b) of the Companies Act, 2013 and granting liberty to file fresh application after complying with all the requirements of Section 66 of the Companies Act. 2. The 'National Company Law Tribunal', New Delhi, Bench V in C.P. No./149/66/ND/2019 while passing the impugned order on 27.05.2020 at paragraph 15 to 16 had observed the following: - "15. Section 66 of the Companies Act, 2013 states that "Subject to confirmation by the Tribunal on an application by the company, a company limited by shares or limited b....
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....rticles of Association of the company. Section 66 of Companies Act also requires this Tribunal to approve the minutes of resolution passed by the Company which has been passed as ordinary resolution as against the requirement of special resolution [mentioned in Para 2(ii) above also as part of prayer]; the Tribunal is not in a position to approve such minutes in this case." and consequently, rejected the petition by granting liberty to the Appellant / Petitioner to file fresh application after complying with all the requirements of Section 66 of the Companies Act. 3. The Learned Counsel for the Appellant submits that the Appellant / Company is a closely held private Company, limited by shares, incorporated on 08.08.2012 under the prov....
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..../- each to Rs. 67,47,90,000/- divided into 6,74,79,000 equity shares of Rs. 10/- each. 7. As a matter of fact, Article 9 of the 'Articles of Association' of the Appellant / Company specifies that the Company may, from time to time by a special resolution reduce its share capital in any manner permitted by law. 8. The Appellant / Company had filed C.P. No. 149/66/ND/2019 under Section 66(1)(b) of the Companies Act praying for passing of an order for confirming the reduction of share capital wherein at paragraph 14 it had averred as under: - "14 That annual general meeting of the Petitioner Company held on August 19,2019 was attended by both the equity shareholders holding 100% of the issued, subscribed and paid up equity share....
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.... 13. The Learned Counsel for the Appellant submits that the resolution passed on 19.08.2019 was in complete compliance of the all the three requisites of the Section 114(2) of the Companies Act, 2013 and since the Tribunal treated the aforesaid 'resolution' as an 'ordinary' resolution the impugned order is liable to be set aside in the interests of justice. 14. The Learned Counsel for the Appellant to lend support to his contention that the resolution passed on 19.08.2019 by the Appellant Company is a special resolution' adverts to the ingredients of Section 114 of the Companies Act, 2013 which reads as under:- "2) A resolution shall be special resolution when: a. With the intention propose the resolution as a specia....
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....ror' figuring in the extract of the 'Minutes of the Meeting' characterising the 'special resolution' as 'unanimous ordinary resolution'. Moreover, the Appellant/Petitioner had fulfilled all the statutory requirements prescribed u/s 114 of the Companies Act and as such the impugned order of the Tribunal is liable to set aside. 17. The Learned Counsel for the Appellant takes a stand that the Tribunal had erred in observing that the Appellant / Company had also not complied with the requirements of its own 'Articles of Association' which had resulted in dismissal of the petition seeking approval of 'Reduction of Share Capital'. 18. On behalf of the Respondents it is represented that the members of the Appellant/Company at the 'Annual Gen....
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....ed to determine those matters for which the Act requires a 'special resolution' and except these matters in all other situations an 'Ordinary Resolution' is to be passed. 23. It is pertinently pointed out that Section 114(2) of the Companies Act, 2013 enjoins that 'Special Resolution' means a resolution where decision is reached by a special majority of more than 75% of members of a Company voting in person or proxy. In reality, Section 114(2) of the Act applies to all Companies. 24. On a careful consideration of respective contentions and this Tribunal, after subjectively satisfying itself that the Appellant/Company has tacitly admitted its creeping in of typographical error in the extract of the minutes and also taking into consider....