9911796707
TMI Blog2013 (1) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary details, the relevant facts leading to filing the present petition are that according to the petitioners, they are 75% shareholders of the issued, subscribed and paid-up share capital of the company, it is stated that in an EOGM held on 3rd November, 2006, the members of the company, inter alia, passed certain resolutions, the reproduction of which seems necessary for the purpose of adjudication of the present petition. The resolutions are as follows: (i) Resolved that pursuant to section 284 of the Companies Act 1956, Gynesbwar Misbra be and is hereby removed as director, (ii) Resolved that pursuant to section 284 of the Companies Act, 1956, Mr. Projesh Kumar Roy be and is hereby removed as director. (iii) Resolved further that Mr. Aloke Kumar Roy be and is hereby appointed as Director in place of Mr. Projesh Kumar Roy to hold office during such time as Mr. Projesh Kumar Roy would have held office had he not been so removed. (iv) Resolved that pursuant to section 284 of the Companies Act, 1956, Mr. Mohan Kumar Mukherjee be and is hereby removed as director. (v) Resolved further that Mr. M.K. Venugopalan be and is hereby appointed as Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company and/or any other documents or assets of the company lying with them. This suit is pending for disposal. 6. Thus, on the basis of the contentions before the Hon'ble High Court, it is evident that two sets of individuals are claiming to the office of the Board of Directors of the company. 7. Therefore, with the purpose to upkeep the paramount interest of the company and the shareholders filed an interim Application being GA No. 2467/2007, seeking almost identical reliefs which have been sought herein by way of this petition. 8. The Hon'ble Justice Indira Banerjee, after hearing both parties, disposed off the said Interim Application holding that the power to order the convening of AGM of the company is vested with the CIS under section 186 of the Companies Act, 1956. Hence, this petition. 9. The Respondents appeared and filed their reply opposing the prayers pleadings, inter alia, that the petition Is not maintainable as the deponent Sankram Basu is not a valid director of the petitioner company; that the purported petitioner in the present petition and has not been authorized by the petitioner-company to file the petition. The said Sankram Basu is illegally shown as a di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with the administration of justice and the course of proceedings in both CS No. 302 of 2006 and CS No. 311 of 2006 and the instant proceedings are an attempt to subvert the effect of orders passed by Hon'ble High Court at Calcutta in these proceedings. In another proceeding before the Hon'ble High Court at Calcutta, being CS No. 37 of 1998, which relates to 8000 sqr. ft. area on fourth floor of a building which was owned by the respondent no. l company. Hon'ble High Court at Calcutta has been pleased to allow the respondent No. 2 and the other genuine directors of respondent No. l company to represent the respondent No. 1. Therefore, no case has been made out for grant of reliefs by the petitioner. 13. Denying the averments made In the petition,, the respondents group further pleaded that the petitioner does not hold 75% of the issued, subscribed and paid-up share capital of the company, they hold less than 75% as would be evident from the petitioner's own showing as the shareholding of the petitioner is beneficially held by two groups of shareholders who are entitled to control and management of the petitioner company; that the petition is barred by principles of res judicata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t multiplicity of suits or protected litigations. The agenda being Annexure "Q" to the petition is wholly misconceived and no meeting can be directed on the basis of such agenda, The releifs sought for are not in the beneficial interest of the company and no shareholder or person concerned would be prejudiced in the event reliefs, as sought for, am not granted. The respondent No. 2 is entitled to hold himself as director and he is not claiming himself to be a director wrongfully or illegally and is not causing prejudice to the company or any shareholder, it is also denied and disputed that the balance of convenience lies in favour of orders being passed, as prayed for or unless orders, as prayed for, are passed the petitioner will suffer irreparable loss, injury or prejudice of that this application is bona fide or made for ends of justice. Therefore, petitioner is not entitled to any reliefs as prayed for and that the reliefs are misconceived, not maintainable and cannot be granted. 17. A rejoinder has been filed by the petitioners to the reply/counters reiterating the relevant facts already pleaded in the petition. 18. The ld. Counsel appearing on behalf of the respondents has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be done indirectly through an application in the pending suit. In any case, the power to order the convening of a meeting lies with the Company Law Board, under Section 186 of the Companies Act, 1956. This Court does not, therefore, have jurisdiction to direct the convening of a general meeting. The application is thus dismissed." 21. From the perusal of the aforesaid order, it is clear that the Hon'ble High Court has itself observed in the said order that the power to order for convening of meeting lies with the Company law Board under section 186 of the Companies Act, 1958, it is further seen from the perusal of the order-that the ld. Counsel for the respondents had himself challenged the said petition, inter alia, on the following grounds : (a) That the application being GA No. 1487 of 2007 has since been filed by pro forma defendant, No. 5 who is a property party but not necessary party, therefore, the application is not maintainable. (b) That the pro forma defendant-applicant m the said application has not filed any WS, therefore, he is not affected by the relief sought in the suit. (c) That the defendant-applicant did not have the requisite shareholdin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the company present in person or proxy shall be deemed to constitute a meeting. (2) Any meeting called, held and conducted in accordance with any such order shall, for all purposes, be deemed to be a meeting of the company duly called, held and conducted. 25. From the perusal of the abovesaid provisions, it is evident that if for any reason it is Impracticable to call, hold and conduct meeting of a company, the power is vested with the Company law Board to pass order to call, hold and conduct the meeting of the company in such manner as the Bench thinks fit. The Company Law Board has been further empowered to give such ancillary or consequential directions as the Bench thinks expedient including directions modifying or supplementing in relation to the calling, holding and conducing of the meeting, the operation of the provisions of this Act and of the company's articles. 26. It is further provided that any meeting called, held and conducted in accordance with any such order shall, for all purposes, he deemed to he a meeting of the company duly called, held and conducted. 27. The ld. Counsel appearing for the petitioner has drawn my attention to the various documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected to be considered as a special resolution of the company, This was the only resolution on the agenda for the meeting, if any other amendment of its articles had to be moved it could be moved only by way of a special resolution after giving the requisite notice. The amended resolution, therefore, though passed unanimously, was illegal At a meeting called by the court there cannot be variation of or deviation from the direction given by it even if the variation or deviation is unanimously agreed to by all the parties concerned. If it becomes necessary on the part of those to deviate from the directions given by the court In the matter of holding or conducting such a meeting the only appropriate course would be to apply to the court itself to alter the directions or give such further directions as may be considered necessary. The members of their own accord, once a meeting is called under section 188, cannot choose to even agree among themselves regarding how the meeting should be conducted other than by way of carrying out the directions given by the court. That a meeting has been previously called by the court under section 186 may not be a reason by itself to refuse to call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n proceedings where the petitioners claim writs in the nature of certiorari, this court cannot sit in appeal over the decision of the Company Law Board, review and re-appreciate the evidence on record and come to a different conclusion. 28. On the other side, the ld. Counsel representing the respondents has not disputed the power to call a meeting by the Company law Board in exercising of its rights and powers conferred upon it by virtue of the provisions contained in Section 186 of the Companies Act, 1956. However, according to the ld. Counsel, looking into the peculiar facts and circumstances of the case, the reliefs sought in this petition cannot be allowed and the Bench has no option but. to dismiss the petition. The ld. Senior Counsel Mr. SN Maokerjee has drawn my attention to the prayers made by the petitioner in the petition. According the ld. Counsel, in the prayer the petitioner has sought a direction for convening a general meeting of the shareholders of the company to consider the agenda filed as Annexure '"Q" to the petition, The ld. Counsel submits that, the subject in this agenda is already sub judice in the civil suit pending before Hon'ble high Court in between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... training the defendant Nos. 1 to 4 and their servants or agents from acting or taking any steps for or on behalf of the plaintiff No. 1; (g) Decree for delivery up and cancellation of the notice dated 1st September, 2006, 3rd October, 2006 after being adjudged void; (h) Decree for delivery up and cancellation of any minutes or resolutions of the alleged extra ordinary General Meeting held on 3rd November, 2006 after the same is adjudged void; (i) Decree for declaration that the alleged Board Meeting and resolutions passed thereat on 4th November, 2006 are illegal, null and void; (j) Decree for delivery up and cancellation of minutes of alleged Board Meeting of 4th November, 2006 so that the same may be cancelled adjudged and void; (k) Perpetual injunction restraining the defendants, their men, agents and assignee from relying on the alleged extra ordinary general meeting allegedly held on 3rd November, 2006 at Kalakunj or 48, Shakespeare Sarani, Kolkata. 32. In the other suit filed by the petitioner, bearing No.302/2006, the following reliefs have been sought: (a) A general meeting of the members of the plaintiff No. 1 be direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to be dismissed. 37. I have considered these submissions advanced by the ld. Counsels and have gone through the aforesaid provisions as well as the citations referred by the ld. Counsels for the respective parties in support of their contentions. 38. I would like to reproduce the aforesaid provisions, which are as follows; Sec. 169 : Calling of extraordinary general meeting on requisition. (1) The Board of Directors of a company shall, on the requisition of such number of members of the company as is specified in sub-section (4), forthwith proceed duly to call an extraordinary general meeting of the company. (2) The requisition shall set out the matters for the consideration of which the meeting is to be called, shall be signed by the requisitionists, and shall be deposited at the registered office of the company, (3) The requisition may consist, of several documents in like form, each signed by one or more requisitionists. (4) The number of members entitled to requisition a meeting in regard to any matter shall be- (a) In the case of a company having a share capital, such number of them as hold at the date of the deposit of the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent a meeting duly commenced before the expiry of the period of three months from the data of the deposit of the requisition. (8) Where two or more persons hold arty shares or interest In a company jointly, a requisition, Sec 190 : Resolutions requiring special notice (1) Where, by any provision contained in this Act or in the articles, special notice is required of any resolution, notice of the intention to move the resolution shall be given to the company not less than fourteen days before the meeting at which it is to be moved, exclusive of the day on which the notice is served or deemed to be served and the day of the meeting, (2) The company shall, Immediately after the notice of the intention to move any such resolution has been received by it, give its members notice of the resolution in the same manner as it gives notice of the meeting, or if that is not practicable,, shall give them notice thereof, either by advertisement m a newspaper having an appropriate circulation or in any other mode allowed by the articles, not less than seven days before the meeting, Sec. 284 : Removal of directors (1) A company may, by ordinary resolution, remove a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board is satisfied that the rights conferred by this sub-section are being abused to secure needless publicity for defamatory matter; and the Company Law Board may order the company's costs on the application to be paid in whole or in part by the director notwithstanding that he is not a party to it, (5) A vacancy created by the removal of a director under this section may, If he had been appointed by the company in general meeting or by the Board in pursuance of section 262, be filled by the appointment of another director in his stead by the meeting at which he is removed, provided special notice of the intended appointment has been given under sub-section (2). A director so appointed shall hold office until the date up to which his predecessor would have held office if he had not been removed as aforesaid. (6) If the vacancy is not filled under sub-section (5), it may be filled as a casual vacancy in accordance with the provisions, so far as they may be applicable, of section 262, and all the provisions of that section shall apply accordingly ; Provided that the director who was remove from office shall not be reappointed as a director by the Board of directors. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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