9911796707
TMI Blog2013 (2) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was not considered while granting impugned approval it is deemed appropriate to direct second respondent to provide a post decisional hearing to petitioners or their authorized representative on their representation within a period of six to eight weeks and to pass a speaking order on the aforesaid representation while returning a positive finding as to whether the alterations in Articles of Association impugned are repugnant to sections 255 and 256 and as to whether reliance upon section 263A and section 265 by the third respondent, justifies the impugned approval or not. Such a course is adopted as principles of natural justice mandate hearing and disposal of objection prior to grant of approval in question. A writ Court would refrain to dwell upon the soundness of impugned alterations in Articles of Association by requiring the competent authority to certify compliance of section 9 by effectively meeting the objections of petitioners. If the second respondent comes to a conclusion that the impugned approval is in violation of any provision of the Companies Act, 1956 then the second respondent would be well within its rights to withdraw the impugned approval but only after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Association by third respondent. 4. While entertaining this writ petition filed in the year 2010, petitioners were called upon to explain the delay and laches in approaching this Court. Though the delay was often months or so, but first petitioner had actively participated in the elections of respondent No. 3 - Association in December, 2009 which were held in accordance with altered Articles of Association and the candidate proposed and nominated by first petitioner, had been elected in the elections held in November, 2009 and September, 2010 and so, plea of acquiescence is sought to be raised against petitioners by respondents. 5. Learned senior counsel for petitioners had urged that the delay and laches would not stand in the way of petitioners because Representation of petitioners was still pending which was not considered while granting the impugned approval and because the illegality in alterations made in the Articles of Association is a continuing wrong. 6. Learned senior counsel for petitioners relies upon decisions in Vaishanava Dass v. Faqir Chand AIR 1968 Delhi 6 Pramod Chopra v. Apparels Export Promotion Council ILR 1984 Delhi 717; Rahul Mehra v. Union of India [2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rict Cricket Association i.e. regarding deletion of Article 22 and addition of Article 23 (A) in the Articles of Association, which according to petitioner violates the mandate of Sections 255 and 256 of the Companies Act and in particular Sub-Section (2) of Section 256 of the Companies Act, which is said to be hit by Section 9 of the Companies Act. That is to say, any amendment in Articles of Association of a company, which is contrary to the provisions of the Companies Act is void. Attention of this Court was drawn to Sub-Section (6) of Section 25 of the Companies Act by learned senior counsel for the contesting respondents to point out that the impugned alterations had the approval of the Government and so, they enjoy immunity from challenge, as the same being in nature of exemption. In support of this stand, attention of this Court is drawn to the decision in C.P. Singhania's case (supra). 10. Upon hearing both the sides and on perusal of the material on record and the decisions cited, this Court is of the considered opinion that even if petitioners have acquiesced by participating in elections prior to filing of the writ petition, still, the delay and laches of ten months wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers in which the proposed changes in the Articles of Association have been approved. 6. Comparative chart giving existing clauses proposed clause is flagged may kindly be seen. Proposed changes appears non contrary to provisions of Companies Act, 1956. In view of above application u/s 25(8) may be considered for grant of approval u/s 25(8) of the Companies Act, 1956. Submitted pl. Sd/- 12/11/09 Sanjay JDI Pl. Reference note above, the proposed amend in A.O.A. which are Internal Administration of the Association and are in consonance with the provisions of the Act as such, we may allow the proposed amendment in AOA of the Co. which are approved in its AGM held on 2.3.2009. (2) ROC Delhi has already confirmed vide its report that the Co. has filed proposed amendment inform 23 and the same has been taken on record. (3) Submitted for orders." 13. Afore-going narration makes it quite evident that petitioners' Representation (Annexure-E) was not considered while granting impugned Approval. The question which falls for consideration in this matter is not of petitioners suffering prejudice or not by grant of impugned Approval but is whether it results in failure ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
