TaxTMI 
TaxTMI 
2025 (5) TMI 2007
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....iled by the appellant against the judgement dated 16.10.2023 passed by the Ld. NCLT New Delhi in CP-5/ND/2022. 2. In their petition before the Ld. NCLT the appellants made following allegations alleging various acts of oppression and mismanagement committed by the Respondents viz:- a) The Petitioners have been deliberately kept away from the affairs of the Respondent No.1 company by not sharing any information and financials of the Company; b) the Respondent No.2 to 4 have not held Annual General Meeting in the year ending 31.03.2021 till date nor have sought any extension in this regard. Further, the accounts of the Company have not been audited till date; c) unjustified calling of Board Meeting to change the Bank Signatories of Respondent No.1 company and the affairs of the Respondent No.1 company are being conducted as a sole proprietorship/Partnership by Respondent No.2 and 4. d) the Petitioner pointed out certain discrepancies in form, MGT-7 for the Annual General Meeting dated 10.08.2020 for the Financial Year 2019-2020, wherein the investments of the Petitioners towards capital were not reflected; e) the appellant had also made....
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.... 9. However, the Respondents argue the Appellant was appointed as an Additional Director of the Respondent No.1 company on 01.04.2020 but his appointment was never regularized in the AGM held on 10.08.2020 and, therefore per provisions of Section 161 of Companies Act, 2013 the appellant No.1 had ceased to be a director from 10.08.2020. 10. It is the case of the Respondents the AGM of Respondent No.1 company was held on 10.08.2020 as per MGT-7 for the financial year 2019-2020, duly signed by the appellant No.1 himself. It was alleged there was no resolution put up for confirmation/regularization of the appellant No.1 as director of the company. 11. The Ld. NCLT vide its impugned order dated 16.10.2023 held as under:- 48. Besides hearing the Ld. counsel for the parties, we have also meticulously perused the material available on record. It is true that at the time of filing the present petition on 27.01.2022, the Respondent No.1 Company was in breach of conducting the Annual General Meeting of the Respondent No.1 Company for the year ending March, 2021 within the extended time period of conducting the Annual General Meeting. The Respondents in defence had submitted th....
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....ioners herein. 53. As to the contention of the Petitioners that there is a discrepancy in filing of E Form MGT-7 for Financial Year 2019-2020 as the investment of Petitioners in the capital is not reflected, the Respondents had stated that the impugned E Form MGT-7 is filed by Petitioner himself with his DSC affixed on the same. This fact is not controverted by the Petitioners. This Tribunal on the perusal of the Respondent No. 1 Company's MCA Master data find that the paid up share capital of the Respondent No.1 Company is reflected as Rs. 8,00,00,000/- which includes the Petitioners collective shareholding of 2,00,000 equity shares in the Respondent No.1 Company. Therefore, this contention also does not hold any water. 54. It appears to us that the Petitioners herein have referred to minor irregularities committed by the Respondents as alleged acts of oppression and mismanagement, following the Petitioner No.1's removal from directorship, which has happened due to operation of law. It is pertinent to note that minor acts of irregularities or mismanagement are not to be regarded as oppression and as far as possible, shareholders should try to resolve their di....
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....ition. During the pendency of this Company Petition, the said notice for the Board's Meeting dated 05.02.2022 was withdrawn and the Respondents rather alleged the Appellant No.1 was already removed as a Director on 10.08.2020 per Section 161(1) of the Companies Act, 2013. 14. Section 161(1) of the Companies Act, 2013 reads as follows:- "(1) The articles of a company may confer on its Board of Directors the power to appoint any person, other than a person who fails to get appointed as a director in a general meeting, as an additional director at any time who shall hold office up to the date of the next annual general meeting or the last date on which the annual general meeting should have been held, whichever is earlier." 15. It is the submission of the learned counsel for the appellants the removal of Appellant No.1 was though alleged to be under section 161(1) of the Companies Act, 2013 but by conduct of respondents wherein the appellant was allowed to continue as a director even after 10.08.2020, hence now cannot be said appellant No.1 was removed on 10.08.2020. In support of her arguments the Ld. Counsel for appellant referred to M/s Mahima Datla Vs Dr Renuka Datl....
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....Westford Hi-Tech Hospital Ltd and Ors (2008) 3 SCC 363) the Hon'ble Supreme Court held as under:- 19) The issue of re-appointment of retired directors on the theory of 'legitimate expectation' was considered by the High Court in detail. It is the stand of the second respondent (Chairman of the Company), that there was no specific promise that these petitioners would be given directorship permanently. The materials placed and discussed before the CLB show that there was full disclosure of retirement of one- third directors and election to that place are in accordance with the Act and Articles of Association and theory of 'legitimate expectation' has no application. 20. It was also highlighted before the CLB as well as the High Court that out of eight directors elected, six were not related to Chairman. It was asserted that Chairman and his family stood personal guarantee to Rs. 21.99 crores whereas NRI directors have not stood personal guarantee for any loan. Though CLB has observed that the principle of 'legitimate expectation' is applicable in the case of the petitioners, in the light of the materials placed and the stand taken by the cont....