TaxTMI 
TaxTMI 
TaxTMI 
2020 (10) TMI 277
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....espondent No. 2 and 3 as directors of the company directing them not to represent the company. It further seeks to restrain Respondent No. 1 from holding or convening any meeting of the board of directors or an Annual General Meeting of the company, and from dealing with or disposing of or alienating or creating any third party interest or from changing the nature and character in any form or manner whatsoever in respect of the assets, operations of bank accounts and shareholding of the company and composition of the Board. The petitioner has also sought orders for appointment of Inspector/Investigator for conducting investigation into the affairs of the company and to report thereon to this Board, etc. 2. It is submitted by the petitioner that Respondent No 1 company was incorporated on 14.02.2005. In 2013 the respondent Nos. 2 and 3 along with the petitioner acquired the said company with an intent to expand their partnership business, respondent Nos. 2 and 3 were accordingly inducted as the directors of the said company on February 1, 2013. Prior to that sometime around 2003, the petitioner and the respondent Nos. 2 and 3 agreed to start business together and for the said purpo....
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.... the respondent No. 1, though the petitioner was allowed to participate in the said meeting as a director via video conferencing, the representation of the petitioner was not considered and the petitioner was removed from the Board of Directors of respondent No. 1. Respondent Nos. 2 and 3 further illegally refused to recognise the petitioner as a shareholder of the respondent no 1, Further no cogent reason was given for removal of the petitioner from the Board of Directors of the respondent no 1. The petitioner further apprehends that respondents No. 2 and 3 would dispose of the valuable asset and land of the respondent No. 1 for their personal gain. The petitioner submits that it is a clear case of oppression and mismanagement of the affairs of respondent no 1, which needs to be checked. 4. Mr. Ratananko Banerjee, learned senior counsel for the petitioner/applicant argued that this allotment of shares had been challenged by respondent No. 2, and an order was passed in CP 104/2014 by the NCLT and thereafter on being challenged, the Hon'ble Appellate Tribunal upheld this order. It is stated that the petitioner is a shareholder and a director since 2013 but the EOGM has been hel....
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....ht orders for maintaining status quo of the land. It is submitted that the meeting dated 16th May, 2020 is illegal because the petitioner was not allowed to exercise her right to vote. 7. In their Defence note, respondents No. 2 and 3 have submitted that this petition is not maintainable, because in an earlier proceedings, Respondent No. 2, Surjeet Singh had filed a similar petition being CP No. 104/2014 before this NCLT claiming that he had been holding 50% shareholding in the R1 Company with R-3 holding the rest. He further claimed that the Petitioner and R-3 had connived to increase the Authorized Capital to Rs. 3 Crore in an EOGM dated 14/02/2014 (Board Meeting dated 13/01/2014) and thereafter made two allotments one to the Petitioner for 5,000 shares and another to a lender Company, albeit related to the all three M/s. Prowess International Private Limited for 20,10,000 shares in a Board Meeting dated 18/02/2014 for which no notices were sent to the R-3. It is stated that the NCLT on consideration of the same and on failure of the Petitioner & R-3 to produce any proof of Notices, declared the increase of Authorized Capital and allotment of shares to Prowess International P. L....
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....t the petitioner never had any shares in R-1 company. It is stated that by the same Resolution which was set aside by the NCLT and confirmed by Hon'ble NCLAT, it cannot be said that it was validly passed by the Board as regards the allotment of shares to the petitioner, in view of the fact that the Resolution was invalidated totally. It is submitted that if the Board resolution has been challenged and annulled, how can it be said that the allotment in favour of one person is illegal but allotment in favour of the other is valid and legal. It is stated that since the petitioner is not a shareholder, notice under section 101 (3)(c) of the Act is sufficient enough and she has no right to cast her vote. It is stated that there were only two respondents, i.e. respondent No. 2 and 3 with equal 50% shareholding, and the petitioner was not at all a shareholder. It is stated that since the petitioner herein is not a shareholder, she cannot move this application. The petitioner will have to prove under Section 244 of the Act that she is a shareholder and has right to apply under Section 241 of the Act. 12. Mr. A.K. Srivastava, learned counsel for Respondents 1 and 3 submitted that the o....
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....ible to summon is not summoned, the meeting will not be duly convened, even though the omission is accidental or due to the fact that the member has informed the officer whose duty is to serve notice that he need not serve notice on him. In Volume 6 of the same book at p.315, Article 626, it is stated that a meeting of the directors is not duly convened unless due notice has been given to all the directors, and the business put through at a meeting not duly convened is invalid". Referring to the above referred citation he said that the petitioner is not a member and unless and until it is proved that she is a member, this petition could not have been filed or accepted. 14. Ld. Sr. Counsel Mr. Ratnanko Banerjee, submitted that the shares had been allotted to the petitioner, but he repeatedly insisted on the Orders of the NCLT dated 21.04.2017 passed in T.P. No. 80 of 2016 corresponding to C.P. No. 71 of 2014 which were duly confirmed by the Hon'ble NCLAT in Company Appeal (AT) No. 293/2017.. On being asked as to what is the proof or evidence available with him to show that the petitioner was or is a shareholder. Since the Resolution in question had been held invalid, it cannot....
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.... Appellate Tribunal in CA (AT) No. 31 of 2016 on 10th November, 2016. No explanation is forthcoming on either side clarifying the inclusion of above referred shareholders in the list of shareholders even after the financial year ending in the year 2016 and 2017. The shadow of subspecies in regards holding of shares by Smt. Usharani has not been cleared from the available records. 16. On a reading of the judgment in C.P. No. 104 of 2014, and Appellate judgment in CA (AT) No. 31 of 2016, it is made clear that the meeting wherein the resolutions were passed allotting shares to Smt. Usharani and to M/s. Prowess International Private Limited was held invalid. However, the Honorable NCLT in its operating part of the judgment did not quash the resolution but held that "allotment of further shares in favour of Respondents No. 4 is hereby set aside". A bona fide omission which was not brought to the notice of the Hon'ble Appellate Tribunal cannot be ruled out from a reading of the substance of the judgment which culminated into a conclusion in the operative part of the judgment. In the operative part, it is silent in respect of allotting shares to Smt. Usharani in the very same meting ....