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2021 (2) TMI 122 - Tri - Companies LawRectification of error - error apparent on the face of record or not - seeking to rectify the error in the cause title to the Impugned order dated 29th November, 2019 herein Tap World Anr. has shown as the Applicant - HELD THAT - On verification of the records and the order, it is noticed that there is a typographical error while preparing the order dated 29.11.2019. IA 66/KOB/2019 has been filed by Mr.Shibu Prabhakaran who is the Respondent No.13 in the TCP/22/KOB/2019. However, while preparing the order, it is stated that the applicant is M/s Tap World. Hence, the first prayer may be allowed and the cause title of the order dated 29.11.2019 to be corrected as Mr.Shibu Prabhakaran-Applicant/Respondent No.13 Vs M/s Tap World and others Respondents/Petitioner Respondents in place of M/s Tap World as applicant. Seeking to rectify the error that in Paragraph 2 of the impugned order wherein it has been mentioned that the IA No.66/KOB/2019 was filed in pale of IA No.6/KOB/2019 - HELD THAT - On a verification of the daily order dated 25.11.2019, it is seen stated that the Respondent/Petitioner in IA submitted that IA/6/KOB/2019 is not maintainable under Section 97(1) as the IA was filed by R1. Counsel for Respondent/Petitioner in IA has not pressed for this IA and informed that for this purpose another IA is being filed with the same contents by a Member. Hence IA 6/KOB/2019 stands dismissed. The applicant in that IA was Kerala Chamber of Commerce Industry. Thereafter, the applicant herein (Kerala Chamber of Commerce Industry) filed IA/66/KOB/2019 taking the contentions raised in IA 6/KOB/2019. Hence the words used in place of IA/6/KOB/2019 is correctly used based upon the records. Hence no rectification is necessary in Para 2 of the order in IA/66/KOB/2019. Seeking to recall the appointment of Justice K.Narayana Kurup as the Chairman to the AGM of the Applicant Chamber - HELD THAT - Since there was no consensus among the petitioners and respondents with regard to the name of the Chairman to be appointed, for conducting the AGM, a request has been made by both the parties before this Tribunal to decide the name of an independent person by this Tribunal, for appointment as Chairman, and taking into consideration the orders of the Hon ble High Court of Kerala dated 2.9.2018 as also there is an urgency to conduct the AGM under the supervision of an impartial competent person, and after hearing the learned counsel for the applicant herein also, this Tribunal decided to appoint Mr. Justice K. Narayana Kurup, former Acting Chief Justice of the Madras High Court as the Chairman of the respondent company- M/s Kerala Chamber of Commerce and Industry for conducting the AGMs - It is also brought to my notice that the son-in-law of Mr.Justice Narayana Kurup has already sent his resignation letter resigning in the year 2011. The learned counsel for applicant stated that this letter will be placed before the next meeting of the Board of Directors. It is also seen that due to non-cooperation and violation of the directions of the NCLT by the Respondent No.1 Company with the appointed Chairman Shri P.S.Antony, Retd.District Judge, he expressed his inability to continue as Chairman. This fact was also taken into consideration while appointing Mr.Justice K. Narayana Kurup as the Chairman. Seeking to rectify the error in Para 11 of the Impugned Order wherein Mr.A.J.Rajan has been erroneously referred to as the Secretary and has been asked to assist the NCLT appointed Chairman - HELD THAT - On perusal of the minutes of the urgent meeting of the Director Board of M/s Kerala Chamber of Commerce vide No.18/2017-18 held on 20.9.2018, as Item No.5 it is stated that as a follow up of the suggestions made in the previous meeting regarding the appointment of Mr.A.J.Rajan, IAS (Retd) as Secretary, the Chairman informed the Board that considering all the aspects of the matter, he has taken the decision to re-appoint Mr.A.J.Rajan, IAS (Retd) as Secretary. In view of the above, there is nothing wrong in Para 11 of the impugned order wherein it was stated that the Chairman will be at liberty to utilize the facilities of Respondent No.1 Company including the services of the Secretary Mr.A.J. Rajan and other staff for conducting the AGMs smoothly. Seeking to direct that the Applicant Chamber may be permitted to hold its AGM following the order of the Hon ble High Court of Kerala dated 2 September, 2019 as may be conducted following its by-laws - HELD THAT - There is nothing wrong in the appointment of Mr. Justice K.Narayana Kurup as NCLT appointed Chairman to conduct the AGMs of M/s Kerala Chamber of Commerce and Industry, and that he has taken charge as the Chairman, there is no question of permitting the applicant Chamber of Commerce Industry to hold its AGMs following the judgment of the Hon ble High Court of Kerala dated 2.9.2019 that the AGM shall be convened and conducted in accordance with Rules and Ext.B2 by-laws, with an outer limit of three months agreed to by both sides. This fact was taken into consideration while passing the orders in IA.66/KOB/2019. In para 16 of the order, it is stated that the NCLT appointed Chairman may approach the Hon ble High Court of Kerala for extension of time limit, if it is necessary, to enable him to complete the task entrusted to him. Hence a direction to the Chamber of Commerce to hold the AGM cannot be allowed. All the parties are directed to co-operate with the Chairman for conducting the meeting of the AGMs. Application allowed in part.
Issues Involved:
1. Rectification of errors in the cause title and paragraphs of the impugned order. 2. Recall of the appointment of Justice K. Narayana Kurup as Chairman for the AGM. 3. Appointment and role of Mr. A.J. Rajan as Secretary. 4. Conducting AGM as per the High Court of Kerala's order. 5. General reliefs in the interest of justice, equity, and good conscience. Detailed Analysis: Issue 1: Rectification of Errors in Cause Title and Paragraphs of the Impugned Order The first respondent sought to rectify typographical errors in the cause title and Paragraph 2 of the order dated 29th November 2019. The Tribunal acknowledged the typographical error in the cause title and allowed the correction to reflect Mr. Shibu Prabhakaran as the applicant instead of M/s Tap World. However, the Tribunal found no error in Paragraph 2, stating that the words "in place of IA/6/KOB/2019" were correctly used based on the records. Issue 2: Recall of the Appointment of Justice K. Narayana Kurup as Chairman for the AGM The applicant raised objections to Justice K. Narayana Kurup's appointment due to a potential conflict of interest, as his son-in-law was a member of the Chamber. The Tribunal noted that the son-in-law had resigned in 2011 and found no reason to believe that his membership would affect Justice Kurup’s impartiality. The Tribunal also considered the non-cooperation with the previously appointed Chairman, Shri P.S. Antony, and found no merit in recalling Justice Kurup's appointment. Issue 3: Appointment and Role of Mr. A.J. Rajan as Secretary The applicant contested Mr. A.J. Rajan's appointment, arguing it was not in accordance with the Articles of Association. The Tribunal referred to the minutes of the Board meeting held on 20.9.2018, which confirmed Mr. Rajan's re-appointment as Secretary. The Tribunal found no error in the impugned order and upheld Mr. Rajan's role to assist the Chairman in conducting the AGMs. Issue 4: Conducting AGM as per the High Court of Kerala's Order The applicant sought permission to hold the AGM following the High Court of Kerala's order. The Tribunal emphasized that Justice K. Narayana Kurup had already taken charge as the Chairman, and there was no need to permit the applicant Chamber to hold the AGM independently. The Tribunal directed all parties to cooperate with the Chairman to conduct the AGMs. Issue 5: General Reliefs in the Interest of Justice, Equity, and Good Conscience The Tribunal reviewed the applicant's general reliefs and found no merit in them, except for the correction of the typographical error in the cause title. The Tribunal reiterated that no error apparent on the face of the record existed in the other prayers. Conclusion: The Tribunal allowed the rectification of the cause title but rejected the other prayers for lack of merit. The appointment of Justice K. Narayana Kurup as Chairman and Mr. A.J. Rajan as Secretary were upheld, and the Tribunal directed all parties to cooperate for the smooth conduct of the AGMs. The IA No. 99/KOB/2020 was partly allowed.
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