2000 (10) TMI 971 - Board - Companies Law

Summary

Issues Involved:
1. Change in ownership of shares.
2. Likely change in the Board of Directors.
3. Prejudicial impact on the company's interest.
4. Maintainability of the petition under section 409 of the Companies Act, 1956.
5. Jurisdiction and capacity of the petitioner.
6. Locus standi of the company's representative.

Detailed Analysis:

1. Change in Ownership of Shares:
The petitioner, claiming to be the Managing Director of the company, filed a petition under section 409 of the Companies Act, 1956, citing a change in the ownership of shares. The company was initially promoted by four shareholders with specific shareholdings. CGL transferred its 40.5% shares to Bharti, which was approved by the Board and other stakeholders. Despite initial consents, some promoters later opposed the transfer, leading to disputes.

2. Likely Change in the Board of Directors:
The petitioner expressed concerns that the change in share ownership might lead to a change in the Board of Directors, potentially prejudicial to the company's interests. The AGM scheduled for 23-8-2000 was crucial as it involved the reappointment of directors. The petitioner feared that the majority shareholders might act to exclude certain directors, thereby altering the Board's composition.

3. Prejudicial Impact on the Company's Interest:
The petitioner argued that the potential change in the Board could jeopardize the company's license and lead to lenders recalling their loans. The petitioner sought orders to prevent any resolutions or actions that might affect the Board's composition without confirmation from the Company Law Board (CLB).

4. Maintainability of the Petition Under Section 409:
The second respondent challenged the petition's maintainability, arguing that the conditions of section 409 were not met. They contended that for section 409 to apply, the change in share ownership must lead to a Board change, which should be prejudicial to the company. The respondents argued that the petitioner, aligned with Bharti, filed the petition with an ulterior motive to facilitate Bharti's control over the company, despite being a minority shareholder.

5. Jurisdiction and Capacity of the Petitioner:
The CLB examined whether the petition should be considered as a preliminary issue or along with the merits of the case. It was noted that the CLB had jurisdiction and the petitioner, being the managing director at the time of filing, had the capacity to file the petition. The CLB decided to consider the maintainability based on admitted facts without delving into disputed issues.

6. Locus Standi of the Company's Representative:
The second respondent questioned the locus standi of Shri Dave, appearing for the company, citing the absence of a valid Board resolution authorizing his appearance. The CLB noted that the company's Board had not authorized anyone to represent it in the proceedings.

Conclusion:
The CLB concluded that for a petition under section 409 to be maintainable, there must be a causal relationship between the change in share ownership and the change in the Board. The acquirer of shares should be in a position to alter the Board by the strength of the shares acquired. In this case, Bharti, the acquirer, did not have sufficient shares to influence the Board's composition. The petition sought to prevent existing majority shareholders from exercising their rights, contrary to the objective of section 409. The CLB dismissed the petition as not maintainable and vacated all interim orders, emphasizing that section 409 aims to prevent takeovers by incoming shareholders rather than restricting existing majority shareholders.