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TMI Blog2015 (6) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... d Regulations, 1991. b. Because, the Petitioner has suppressed the material facts, relevant documents and has not approached this Bench with clean hands. c. Because, no case under sections 397 and 398 of the Act is made out from the averments made in the petition. d. Because, the Petitioner has made incorrect statement in the petition that no compliance has been filed by him before any authority prior to filing of this petition. 2. Affidavit-in Reply has been filed by the Petitioner to C.A. No.331/2014, to which the Respondent No.4 has filed a Rejoinder Affidavit. For the sake of clarity, the Parties shall be referred to hereinafter in the manner they are originally ranked in the Company Petition. 3. The Ld. PCS appearing for the Appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined the relevant provisions of the Indian Companies Act, 1956 and the Regulations made there under. The present petition is filed under Section 397/398 of the Companies Act, 1956. Section 400 of the Companies Act mandates that the Company Law Board shall give notice of every application made under Section 397/398 of the Act to the Central Government and shall take into consideration representation, if any, made by the Central Government before passing any final order. Record reveals that the CLB itself dispatched the copy of the petition to the Regional Director representing the Central Government on the next day of filing of the petition. Therefore, in my opinion, substantially this provision has already been complied with. Furthermore, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y committed by the Respondents. I, therefore, hold that this ground is devoid of merits. It is also rejected accordingly. 7. With respect to the last ground taken by the Respondents, it was argued by the Ld. PCS appearing for the Respondent that the Petitioner had filed a complaint before the Registrar of Companies on 17/11/2014, which fact he has not disclosed in the petition, and therefore, the Petition deserves to be dismissed. I have considered this objection too. The ROC is an administrative authority. He is not a judicial or quasi-judicial authority. Therefore, non disclosure of a complaint made to him, in my opinion, is not a sufficient ground for dismissal of the petition. 8. Having considered the submissions, in my opinion, the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irector of the Company, shall not be implemented without approval of the CLB. Minutes of the meeting shall be filed along with the reply. The remaining reliefs shall be considered after reply is filed". 13. It appears that the EOGM was held on 22/11/2014 at the scheduled time and place, in which a resolution has been passed by the Company whereby the Petitioner has been removed as its Director. Now, the Ld. PCS appearing for the Respondents submits that the Company should be allowed to implement the said resolution and it should accordingly be permitted to file appropriate forms with the ROC showing cessation of the Petitioner as a Director of the Company. The Ld. PCS has further submitted that the Company had availed loan from the HDFC Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to and relied upon by the Petitioner's Counsel is reproduced here as under in support of my aforesaid view :- "50. The question that arises for consideration of this court is whether the impugned order passed by CLB on 13r" August, 2012 in Company Application (85 of 2012) is in the nature of review of its earlier order dated 21` May, 2012 and if it is in the nature of review, whether CLB has power to review its earlier order under the provision of the Companies, Act, 1956 or under the Company Law Board Regulations, 1991. By the impugned order dated 13`" August, 2012 the CLB has vacated the order dated 21'` May, 2012 by holding that there was no justification in restraining the first respondent company from implementation of the sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed huge amount of the Company for his personal benefit, and therefore, the Company, by following due course of law, has rightly removed the Petitioner as a Director of the Company. 20. I have carefully considered the rival submissions and perused the record. I have also gone through the Report of the forensic audit submitted by the Applicant-Respondent No.2 in support of his case. Without expressing any opinion at this stage on the authenticity and correctness of the said report, it is suffice to say, at this stage, that the Petitioner has been removed by the majority group of shareholders after following due course of law on the charges of misappropriation and diversion of funds of the Company by the Petitioner to his personal use and ben ..... X X X X Extracts X X X X X X X X Extracts X X X X
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