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TMI Blog2005 (7) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 from effecting any structural change in the management by allowing any outsider in the company in any capacity whatsoever, from misrepresenting the Court that the defendants 2 to 5, i.e., the financial institutions that the appellant had ceased to be a lifetime Director of the company, from alienating the suit properties to the outsiders and restraining the financial institutions from according statutory recognition to any outsider in any capacity whatsoever in the management of the company till the outstanding dues are liquidated in full and the company is free from any encumbrances. 4. The case of the plaintiff-appellant is that she is the founder and permanent lifetime Director of a hotel named "M/s. Hotel Aristocrat Pvt. Ltd." located in Paradeep. The hotel commenced operation with effect from April, 1984 with the financial assistance received from two financial institutions, namely, Orissa State Financial Corporation (in short, OSFC ) and IPICOL. The appellant being a housewife entrusted the entire management of the hotel to respondent No. 1 who happens to be the brother of her husband and having full trust in him never checked the accounts, occupancy position or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... era on a consideration of Rs. 7,50,000 (Rupees seven lakhs and fifty thousand). Out of the said amount, she received a sum of Rs. 1,50,000 (Rupees one lakh and fifty thousand) by way of a demand draft on 9-4-1994 and the balance amount was received by her in cash. The resignation tendered by her on 9-2-1994 was taken up in the Board meeting held on 9-3-1994 and the Board resolved to accept the same. Having resigned from the Board and transferred her share in the company for consideration, she has no right to file the suit to restrain the respondent No. 1 from admitting any other person as director of the company. The further case of the defendant-respondent No. 1 is that the appellant prior to her resignation had 16 per cent of share in the company which she had transferred. However, she having accepted the consideration money raised an issue with regard to her resignation by entering her name in Form No. 32 which was with her appointing one S.N. Nayak, a nominated Director of IPICOL in place of the previous director Mr. A. Parija, who had also been nominated by IPICOL. She did that with the purpose to show that she has been re-appointed as the Director of the company with effect f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary to refer to the oral and the documentary evidence adduced on behalf of the parties. Though Shri Mohanty argued at length on facts of the case, referring to several documents, he could not place any substantial question of law to be decided in this appeal. However, this appeal having been argued at length by the learned counsel for the contesting parties, I proceed to examine the aforesaid question with reference to the evidence available on record. 9. The averments made in paragraph 16 of the plaint are relevant for the purpose of this case. It is stated in the said paragraph that the mischievous and malicious action on the part of the defendant No. 1 to fabricate a case against the plaintiff that she had resigned from the Board of Directors by manufacturing certain documents for being utilised by defendant Nos. 2 to 5 is a cause adequate enough for the plaintiff to go to trial and establish the truth. As is evident from the said averment, there is no specific pleading as to what document has been manufactured indicating resignation of the plaintiff from the Board of Directors of the company. In paragraph 31 of the written statement filed by defendant No. 1, it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipts indicate the payments of instalments of different amounts on different dates in between September, 1993 and September, 1994, but nothing has been placed before the Court to show that the payments had been made by the plaintiff herself. Ext. 12/c and Ext. 12/d relate to the period after 9-3-1994. Referring to Ext. 12/c, it was contended by Shri Mohanty that the amount paid to OSFC towards instalment had been paid from the account of the plaintiff. Learned counsel for the respondent No. 1, in this connection, drew attention of the Court to the deposition of the plaintiff made in paragraph 35. The plaintiff in her deposition has stated that she has got one clinic and she owns the said clinic which runs in the name of Rita Clinic. She has also stated that she had obtained loan to run the clinic in her name and the entire building was completed and equipments were purchased for an amount of Rs. 7,00,000 (Rupees seven lakhs) and the said amount has been obtained as loan. Referring to the said deposition, it was contended by the learned counsel for the respondent No. 1 that the payment made to SFC from her account are towards payment of instalments of Rita Clinic and not for Hot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having shares worth Rs. 10,000 (Rupees ten thousand). Since the specific stand of the plaintiff is that she had never resigned from the company and continued to be a director, she should have produced the share certificate before the Court in order to prove that she is continuing as a director of the company. Having not produced any share certificate issued in her favour, the plea of the defendant-respondent No. 1 that she had transferred her shares in favour of one Nidhi Sudan Behera appears to be acceptable. Moreover, if she had been re-appointed as a director of the company as per Ext. 3, she should have produced documents to show that she had again purchased shares of the company for being a director. No such documents have also been produced by the plaintiff to prove that she was re-appointed as a director of the company. 11. In view of the findings arrived at, it is clear that while continuing as a director the plaintiff had resigned from the directorship of the company by selling her shares in favour of one Nidhi Sudan Behera and she had never been re-appointed as a director thereafter. Therefore, she cannot maintain the suit against the defendant-respondent No. 1 claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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