9911796707
TMI Blog2017 (3) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... o the interest of both the petitioner and R1 company. It has further been prayed to declare that the resolutions passed by the Board of Directors of R1 company during the meetings held on 08.09.2015 and 08.10.2015 pertaining to the impugned issue of shares on rights basis and actions taken pursuant thereto including the letter of offer dated 11.09.2015 are null, invalid, void ab initio, fraudulent, non est and illegal and consequently prayed to set aside all the forms, returns filed pursuant to the said resolution. 2. Applicant No.1/Respondent-2, Applicant No.2/Respondent-3 and Applicant No.3/Respondent-4 have filed the company application against Respondent/Petitioner, Respondent-2/ Respondent-1, Respondent-3/ Respondent-7, Respondent-4/ Respondent-8 stating therein that the company petition does not disclose cause of action and the authorisation on the basis of which the company petition has been filed is incorrect and cannot be used to initiate proceedings under Sections 397 and 398 of the Companies Act, 1956. Therefore, the petition deserves to be rejected on this basis alone. 3. The Applicants in the company application have submitted that the petition has been signed by Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application cannot be entertained and heard separately unless those issues involved in the company petition are not decided. The Applicants/ Respondents has also filed a rejoinder wherein the stand taken in the application has been reiterated and prayer is made to reject the Company Petition in limine. 4. Now for the sake of convenience, it is necessary to reproduce the text pertaining to the "Appointment of Manager's Resolution" dated June 04, 2014, which is as follows :- Appointment of Manager's Resolution By virtue of this Resolution, I, the undersigned, Constantin Salameh - Swiss National, holder of Passport No. (X2463450), in my capacity as Chief Executive Officer of ETA ASCON Holding LLC, Commercial License No.(590790), issued by the Department of Economic Development in Dubai, and pursuant to a Shareholders' Resolution notarized by the Notary Public Ref. No.201277/1/2013 on 05/11/2013, in its capacity as owner of more than (99%) in the capitals of the following companies, hereinafter referred to as the "companies" (l) Emirates Trading Agency LLC, Commercial License No. (201682), issued by the Department of Economic Development in Dubai, (2) ETC Windows LLC, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ager has the right to delegate all or part of the authorities vested in him by this resolution to whomever he deems appropriate. (7) The appointment of the General Manager shall be valid from the notarization date of this resolution, until the companies decide otherwise. This resolution supersedes all prior resolutions and/or power of attorneys related to the content of this resolution. 5. The perusal of the language used in the "Appointment of Manager's Resolution" indicates that Mr. Shaukat Ali Mir, has been authorised within UAE and abroad giving powers as are enumerated in the above said resolution which specifically provides that Mr. Shaukat Ali Mir, is authorised to represent the companies before all the governmental, federal or local departments, companies, establishments and individuals in anything, matters, cases, disputes that may affect the companies or the companies' interest, rights or obligations, in all matters, and to appoint lawyers, legal advisors to protect the companies' interest, with regard to its dealings and defending the companies and its interests before all stages of the courts of law. The rights to delegate all or part of the authorities w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kamya flows from the "Appointment of Manager's Resolution" dated June 04, 2014, that was drawn on the basis of the "Shareholders' Resolution" notarised by the Notary Public RefNo.201277/1/2013 on 5.11.2013, under which the Chief Executive Officer of ETA ASCON Holdings LCC, has been empowered to appoint the General Manager. In pursuance of the "Shareholders' Resolution", the Chief Executive Officer, by way of "Appointment of Manager's Resolution" appointed Mr. Shaukat Ali Mir as General Manager for each of the companies i.e. Emirates Trading Agency LLC, ETA Windows LCC and ETA PCS Switch Gear Manufacturing LCC. 7. Before we proceed further, it is necessary to mention the case law referred by the counsel for Applicant/Respondent which is as follows : (i) Deutsche Bank AG v. Prithvi Information Solutions Ltd. 2011 (12) TMI 420 - ANDHRA PRADESH HIGH COURT (ii) Mohan Lal Mittal v. Universal Wires Ltd. 1979 (10) TMI 161 - HIGH COURT OF CALCUTTA (iii) Canara Workshops Ltd. v. Mantesh 2014 (1) Crimes 316 (Kar.) A single citation referred by the counsel for Respondent/Petitioner is pertaining to Aloys Wobben Argestrasse rep. by his power of Attorney holder Balan Kombi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under section 399 of the Companies Act, 1956. It was held that the Secretary had no authority to issue a letter of consent on the instructions of one of the Directors unless a Board resolution is passed to that effect. But in the present petition, there is no involvement of any letter which could be stated to have signed by the Secretary on the instructions of any one of the directors. Therefore, the circumstances involved in the present petition are different and distinguishable. 11. The third ruling is pertaining to the case titled Canara Workshops Ltd's (supra). In the said case, it was held that unless the powers are conferred by the Board of directors by passing a resolution to authorise the institution of suit or other proceedings on behalf of the company, no proceedings could be instituted on the basis of General Power of Attorney which was in respect of a civil litigation and there was no specific authority to file a complaint under Section 138 of the Negotiable Instruments Act. This ruling is also not supporting the case of applicants/Respondents because the facts and circumstances involved in the present matter are totally different, as the "Authorisation letter" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CLB regulations. The CLB relied upon the judgment given in Killick Nikson Ltd. v. Bank of India 1983 (2) Bom. CR 631, wherein it was argued that a right to apply under Ss 397 and 398 of the Companies Act is a right which is personal to the members. He is required to exercise his own discretion. He cannot delegate his right under Ss 397 and 398 to anybody else. This argument, however, was not accepted by the High Court and held that one of the cardinal principles of law is that an agency can be created for all lawful purposes and all rights can ordinarily be delegated. The court referred that in Bowstead on Agency, 14th edn., p. 23, it is stated as follows :- 'Article 7. An agent may be appointed for the purpose of executing and deed or doing any other act on behalf of the principal, which the principal might himself execute, make or do; except for the purpose of executing a right, privilege or power conferred, or performing a duty imposed, on the principal personally, the exercise or performance of which requires discretion or skill, or for the purpose of doing an act which the principal is required, by or pursuant to any statute, to do in person. 26. Our court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
