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2025 (12) TMI 1479
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.... - 244 of the Companies Act, 2013, has been rejected. Company Appeal (AT) (CH) No. 121/2025 3. In the connected company appeal i.e., Company Appeal (AT) (CH) No. 121/2025, which too has been preferred by the Appellant, who are the opposite party to the proceedings of the C.P No.125/BB/2022 questions the propriety impugned order of 11.07.2025, whereby CA No. 59 of 2023, as it was preferred by the Respondent for seeking an amendment for introduction of new pleading and the relief clause in the memorandum of the company petition has been allowed. 4. Having regard to the chronology of facts and the issues involved, we shall first deal with Company Appeal (AT) (CH) No. 121/2025. In this appeal, the Respondent/Petitioner had filed a company petition before the Ld. Tribunal on 19.09.2022, seeking, inter alia, a declaration that the Board Resolution dated 31.12.2021 be declared null and void, and for a further direction to conduct an enquiry through a forensic audit into the affairs of the 1st Respondent Company in relation to the salary drawn by the parties, purchases, and inventories of the 1st Respondent. He has also sought the appointment of an independent valuer to carry out ....
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....icular, the Appellant has argued that the nature of the amendment sought completely changes the complexion of the company petition itself. It is contended that it amounts to introducing an altogether new cause of action, because, according to the Appellant, the said relief was already available to the Petitioner/Applicants at the time when the company petition was originally instituted. However, the Respondent, having not chosen to seek that relief at the appropriate stage, even though it was available to be pleaded, could not introduce it at a later stage, as doing so would be contrary to the governing principles applicable for seeking an amendment to the relief clause and the pleadings. 7. In order to address the argument advanced by the learned Counsel for the Appellant, this Appellate Tribunal posed a simple question to the Respondent as to how the order allowing the amendment application could be justified in the manner in which it was rendered by the learned Tribunal. The learned Tribunal, after recording the rival contentions of the parties in support of and in opposition to the amendment application, proceeded to record its analysis in Paragraph 6 of the impugned order. ....
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....y on the ground that a very evasive observation and finding has been recorded by the Ld. Tribunal while passing the order allowing the amendment application. We are of the view that when an amendment is sought to be introduced at a belated stage during the pendency of a petition, once it is permitted to be introduced, it amounts to treating it as if it existed on the date of filing of the principal company petition. Therefore, it was required to be considered with due diligence and subjected to proper reasoning by the Tribunal to justify the necessity of the amendment. 10. In that eventuality, the application for amendment has to be strictly construed to determine whether the nature of the amendment, in relation to the relief sought and the pleadings filed in support of it, satisfies the test of reasonableness. An adjudicatory body is required to consider the propriety of the amendment and its consequential implications on the principal proceedings of the company petition, including the bearing the proposed amendment will have and whether it would either augment or deprive the opposite party of the right to defend itself against the cause now sought to be introduced by the amend....
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....petition, i.e., 08.08.2023, the petition at their behest would not be maintainable. In relation thereto, the Appellant filed an IA, being CA No. 79 of 2023, raising a preliminary objection regarding the tenability of the company petition at the instance of the Respondent/Petitioner, who, in the absence of holding any shares, were not 'members'. 16. For the aforesaid purpose, the Ld. Counsel for the Appellant has drawn the attention of this Ld. Tribunal to the provisions contained under Section 241 of the Companies Act, 2013. Although the entire provision under Section 241 may not be relevant for deciding the issue of sustainability of an application raising a question of maintainability, particularly as against the petition preferred by the Respondent under Sections 241-244 of the Companies Act, 2013, he submits that, for the purposes of proceedings under Section 241, actions alleging oppression and mismanagement may be initiated by "any member of the company who complains that...", as provided under Section 241(1). 17. He further submits that, in order to sustain proceedings under Sections 241-244 of the Companies Act, 2013, it is a precondition that the Petitioner must be a....
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....he date of filing the company petition, i.e., 19.09.2022, the petition filed at their behest would not be maintainable. Moreover, the company petition was preferred at a significantly belated stage after the expiry of nine months from the date of the share transfer reflected in the annual report dated 31.12.2021. He further submitted that the institution of the company petition is vitiated by mala fides and by concealment of material facts, and that it has been filed without fulfilling the mandatory conditions contemplated under Section 244 of the Companies Act, 2013. 22. The Appellant, in Paras 5.4, 5.5, and 5.6, specifically raised grounds concerning the implications of Section 241 of the Companies Act, 2013, particularly as to who is eligible to maintain a company petition. The application so preferred expressly agitated these grounds on the basis that, even if the averments made in Para 6.5 of the company petition are taken into consideration, they themselves indicate that the Respondent/Petitioner received a sum of Rs. 5.5 crores from Applicants No. 3 and 5 as sale consideration for transferring his entire shareholding in Applicant No. 1 company in favour of Applicants No. ....
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....e Companies Act read as follows: 244. Right to apply under section 241.- (1) The following members of a company shall have the right to apply under section 241, namely:- (a) in the case of a company having a share capital, not less than one hundred members of the company or not less than one-tenth of the total number of its members, whichever is less, or any member or members holding not less than one-tenth of the issued share capital of the company, subject to the condition that the applicant or applicants has or have paid all calls and other sums due on his or their shares; (b) in the case of a company not having a share capital, not less than one-fifth of the total number of its members: 153 Provided that the Tribunal may, on an application made to it in this behalf, waive all or any of the requirements specified in clause (a) or clause (b) so as to enable the members to apply under section 241. Explanation.-For the purposes of this sub-section, where any share or shares are held by two or more persons jointly, they shall be counted only as one member. (2) Where any members of a company are entitled to make an application under subsection (1), any one or more of them ha....
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.... analyzing the pleadings raised in the application filed by the Appellant concerning the maintainability of the company petition, the Ld. Tribunal confined its observations to the report of the Registrar of Companies, which had been submitted on 09.08.2023 vide Dy. No. 4187. In that report, the Registrar of Companies considered the complaint alleging that the company had filed DIR-12 on 17.01.2022, vide SRN No. T72653777, regarding the resignation, attaching only the certified true copy of the board meeting held on 31.12.2021.It is submitted that since neither the original resignation letter nor the request to invalidate the DIR-12 was furnished, and no explanation was provided by the company for failing to attach the original resignation letter, the Registrar presumed the Respondent/Petitioner to be holding shares, thereby treating him as a member of Respondent No. 1 company. 25. The Ld. Tribunal has taken the view that the contention raised by the Applicant/Appellant herein, regarding the theory of resignation of the petitioners to the company petition from the position of Director of M/s Apex Luminaires Private Limited, was not substantiated. It has declined to accept the cer....