9911796707
TMI Blog2010 (6) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... her, namely, one Dularchand Mukhiya. These two are the promoters of the company, in pursuance thereof, the petitioner filed annual return of the company dated 30-9-2006 which is Annexure 2. On 5-12-2005, the other 50 per cent shareholder Mr. Mukhiya resigned from the board of directors of the company allowing the second respondent herein, Ms. Meera Jha as director of the company with effect from 5-12-2005, thereby, the company, presently, has two directors, the petitioner and the second respondent. The petitioner further alleged that the second respondent failed to attend the board meetings of the company conveyed on 25-7-2008, 14-8-2008, 4-9-2008 as shown in Annexure 3(i), (ii), (iii ); thereby the petition adjourned the meetings from time to time for want of quorum. On 15-7-2008, the second respondent appointed two of her relatives as additional directors of the company by forging the signature of the petitioner on the minutes of the resolution as if the petitioner herein attended the board meeting and conceded the appointment of one Mr. Kedar Jha and one Mr. Prasoon Kumar Jha as additional directors of the company, which was never put to the notice of the petitioner. He came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police of Shantinagar, Patna, against the petitioner on 2-7-2008, for the theft of all statutory records of the company from its registered office. On seeing the FIR registered against the petitioner, she alleged, the petitioner came to the second respondent requesting withdrawal of the case filed against him by agreeing for appointment of the aforesaid two persons as additional directors of the company. Accordingly, the additional directors were appointed with the consent of the petitioner as mentioned in Annexure 2 of reply. The second respondent further submitted that this petitioner was siphoning off the funds of the company and also running parallel business on his own detrimental to the interest of the company. Since the company has validly constituted board of directors to take decisions on behalf of the company, thereby no need of holding of any extraordinary general meeting under section 186 of the Act. Apart from this, she further submitted that Mr. Mukhiya is no longer shareholder of the company; thereby Mr. Mukhiya is not entitled to any notice of annual general meeting or any extraordinary general meeting, the other director, i.e., the second respondent being available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vimlesh Kumar as directors of the company. Since the petitioner has called for an extraordinary general meeting while the petition is subsisting before the Company Law Board, the petition is liable to be dismissed. As per article 25 and article 32 of the articles of association, the petitioner herein is not authorised to call a meeting after the second respondent being inducted as 50 per cent shareholder. She further denied the allegation of forgery of signature of the petitioner on resolution dated 15-7-2008. Since the petitioner being a habitual trouble maker, if at all any annual general meeting is held under section 186 of the Companies Act, 1956, the petitioner will certainly abuse the process of law, thereby she prays for dismissal of the petition. Since this petitioner issued notice dated 29-12-2009, for holding the extraordinary general meeting on 22-1-2010, after filing this petition, it being the ratio once meeting is called, the Company Law Board, as per law, is ceased from calling meeting, in view of the same, this Bench cannot pass any orders over the relief. Since there being no impracticability for calling or holding or conducting general meetings for the second res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khiya. In which also Mr. Mukhiya remained absent, thereby Mr. Mukhiya s response could not be obtained. 10. On hearing either side, this Bench noticed the following facts : (i)Admittedly, the company is comprised of two members, the petitioner with 50 per cent shareholding and the said Mr. Mukhiya with 50 per cent shareholding, the same is not found changed until 18-1-2010, as per the information given by the Registrar of Companies, Patna, through a letter dated 18-1-2010, addressed to the Bench Officer, Company Law Board, Kolkata. After or before 18-1-2010, there being no proof of transfer of Mr. Mukhiya s shares in favour of the second respondent in support of the pleading of the second respondent entitlement to the shares of Mr. Mukhiya, and because she neither filed any share certificates in her name or the certificates of Mr. Mukhiya or at least transfer in her name, she cannot be considered as member of the company in the place of Mr. Mukhiya to have entitlement for attending as member in the extraordinary general meeting to be held. Form No. 32 filed on 21-12-2005, discloses that Mr. Mukhiya resigned on 5-12-2005, but no evidence is shown as Mukhiya transferred his share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s become impracticable to hold any extraordinary general meeting with requisite quorum. In order to ascertain as to whether Mukhiya is available or not, this Bench initiated substitution proceedings by ordering the petitioner to issue notice through paper publication, in obedience to the order of this Bench, the petitioner got it published in a newspaper, the same is filed before this Bench. (v)Another point raised by the second respondent is that the petitioner called an extraordinary general meeting on 22-1-2010, after filing this petition; thereby the petitioner is not entitled to invoke the relief under section 186 of the Act. This contention is not supported by law because the petitioner issued that notice by paper publication on the order passed by this Bench on 16-12-2009, thereby this point canvassed by the second respondent is not valid. Moreover, this notice was issued only after filing this petition. (vi)Since the transfer of shares itself not being shown anywhere, the clause of right of refusal conferred upon the existing shareholders in the articles need not be applied in the present case. (vii)There being only two members in the company, one being not available ..... X X X X Extracts X X X X X X X X Extracts X X X X
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