2016 (6) TMI 218 - HC - Companies Law

Investigation u/s 235(2) to investigate the affairs of a company - CLB quashed the investigation proceedings - Maintainability of appeal - Held that - The present appeal oversteps its statutory applicability. What is undisputed is that the appellant fails to meet the threshold of 10% share of the total voting power as is necessary under section 235 of the Act. Therefore, that is his first impediment in directing an investigation and the application under section 235 as well as this appeal would not be maintainable. Furthermore, in section 397 and 398 of the Act, which deals with application for relief in cases of oppression and mismanagement respectively, required the applicant to have at least 10% of the issued share capital. It is only in applications under Section 397 and 398 of the Act, where the challenge in such applications is to reduction of the issues share capital itself, through oppression or mismanagement then the threshold of 10% would not be applicable. The impugned order has recorded that, according to the respondents, there was some deed of settlement signed on 12.07.2010 and that the respondents had invested an amount of ₹ 12.7 crores whereas the appellants had made investment of only ₹ 1 lakh at the time of incorporation of the said company, which amount has already been paid back to him by the investors group of companies. Any investigation under Rule 235 of the Act would be a fact finding process and such power would be administrative in nature. However, since the facts were already known to the parties, through the statutory filings of the company, no further information would come out from the investigation. Indeed the said information has already been placed before the various law enforcing agencies by the appellants for them to carry out their respective necessary action. Evidently, the impugned order takes into account all the relevant facts and has come to the conclusion that the circumstances under Section 237 do not exist to warrant an investigation.

2020 (5) TMI 152 - Tri

Issues Involved:
1. Maintainability of the petition under Section 235 of the Companies Act, 1956.
2. Authorization of representation before the Company Law Board (CLB).
3. Threshold requirement of shareholding for invoking Section 235.
4. Allegations of irregularities and fraudulent activities in the company.
5. Applicability of Section 397 and 398 for relief in cases of oppression and mismanagement.
6. Judicial interpretation and precedents related to Section 235 and 237.

Detailed Analysis:

1. Maintainability of the Petition under Section 235 of the Companies Act, 1956:
The appellants filed a petition under Section 235 of the Companies Act, 1956, seeking an investigation into the affairs of the respondent company. The CLB rejected the petition, stating that the facts and irregularities alleged by the appellants were already known and documented through statutory filings available in the public domain. The CLB reasoned that an investigation under Section 235 is meant to uncover new information not apparent from existing records, and since the alleged irregularities were already observed, the petition did not merit an investigation. The High Court upheld this view, emphasizing that Section 235 is not intended for a roving inquiry based on known facts.

2. Authorization of Representation before the CLB:
The appellants challenged the validity of the representation made by the respondents before the CLB, arguing that the special power of attorney authorizing Mr. Anshuk Pasricha was not notarized or apostilled as required by law. The respondents countered that this was a curable technical defect and cited precedents where such defects were ratified even at the appellate stage. The High Court found the respondents' argument tenable, noting that the acts of Mr. Pasricha had been subsequently ratified by a Board Resolution, thereby rejecting the appellants' preliminary objection.

3. Threshold Requirement of Shareholding for Invoking Section 235:
The appellants' shareholding in the respondent company was only 0.73%, far below the 10% threshold required under Section 235(2) of the Companies Act. The High Court emphasized that this threshold is a statutory requirement and cannot be bypassed. The court referred to precedents which held that the requirement of holding not less than one-tenth of the total voting power is mandatory for maintaining a petition under Section 235.

4. Allegations of Irregularities and Fraudulent Activities in the Company:
The appellants alleged several irregularities, including unauthorized meetings, increase in share capital, appointment and removal of directors, and fraudulent changes in the registered address. The CLB noted that these allegations were based on documents already filed with the Registrar of Companies and available in the public domain. The High Court concurred, stating that since the facts were already known, an investigation under Section 235 was not warranted. The court also noted that the appellants had already approached various law enforcement agencies with these allegations.

5. Applicability of Section 397 and 398 for Relief in Cases of Oppression and Mismanagement:
The respondents argued that the appellants had also filed a petition under Sections 397 and 398 of the Companies Act, which deal with relief in cases of oppression and mismanagement. The High Court noted that these sections require the applicant to hold at least 10% of the issued share capital. The court observed that the appellants' grievances could be more appropriately addressed under Sections 397 and 398, rather than seeking an investigation under Section 235.

6. Judicial Interpretation and Precedents Related to Section 235 and 237:
The High Court referred to several precedents, including the cases of Binod Kumar Kasera, Mayank Kocher, and Rohtas Industries, to elucidate the scope and intent of Section 235. The court emphasized that an investigation under Section 235 is meant to uncover new information and should not be ordered based on known facts. It also noted that the legislative intent behind the threshold requirements is to prevent frivolous litigation and ensure that only significant shareholders can invoke such provisions.

Conclusion:
The High Court dismissed the appeal, upholding the CLB's order that rejected the petition for an investigation under Section 235. The court found that the appellants did not meet the statutory threshold of holding 10% of the total voting power, and the alleged irregularities were already documented and known. The court also noted that the appellants had alternative remedies under Sections 397 and 398 for their grievances related to oppression and mismanagement. The appeal was deemed without merit and dismissed accordingly.

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