9911796707
TMI Blog2017 (3) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Mr. Bartholomew Kamya is competent to sign the petition filed under Sections 397 and 398 of the Companies Act, 1956. Therefore, C.A.I stands dismissed and the Company petition is held maintainable. - CA NO.1 OF 2016 C.P. NO. 84 OF 2015 - - - Dated:- 10-2-2017 - K. ANANTHA PADMANABHA SWAMYAND CH MOHD SHARIEF TARIQ, JUDICIAL MEMBER For The Appellant : K. Gowthan Kumar, Advocate For The Respondent : S. Aravindan ORDER Ch. Mohd. Sharief Tariq, Judicial Member - Under adjudication is Company Application No.l of 2016 filed in C.P.No.84 of 2015. The C.P. has been filed before the CLB which stood transferred to NCLT and renumbered as T.C.P.No.91 of 2016. The company petition has been filed under Sections 111 A, 237, 397, 398, 402 and 403 of the Companies Act, 1956, by M/s.Emirates Trading Agency LLC, through authorised signatory Mr.Bartholomew Kamya against M/s.ETA Engineering Private Ltd and 7 others. The petitioner alleged against the respondent that their various acts constitute oppression against petitioner and amount to mismanagement of R1 company and prays, inter alia, to declare that the acts of Respondents 2 to 7 are oppressive against the petitioner and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed by the Partner's General Assembly. The applicants state that as per the procedure, there is no Board resolution of the Petitioner's company wherein Mr.Showkat Ali Mir could be stated to have been validly appointed as Manager even as per Dubai Law. However, under para 8 of the application it has been admitted by the Applicant/ Respondents that the powers given to the Manager are for appointing lawyers and legal advisors to protect the company's interest and defending the company in the proceedings instituted against it. The applicants state that the same cannot be construed as the powers to issue or initiate litigation on behalf of the company. Thus, it lacks the specificity required under law for undertaking an act as critical as suing on behalf of the company or person. Based on this, the Applicants/Respondents have prayed that the CP is not maintainable for being filed without proper authorisation and the same may be rejected. To the above said application, the Respondent-1/Petitioner has filed an objection. But on perusal of the objection it appears that the issue which has been raised in the Company Application has not been controverted properly, except the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nication Companies, Companies, Establishments and individuals to do whatever secures and achieves the objectives and interests of the Companies. (2) To represent the Companies before all 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 mentioned in Article (58/2) of the Civil Procedure Code. (3) To appoint Lawyers and legal advisers to protect the Companies' interests with regard to its dealings and defending the Companies and its interests before all stages of the courts of law including the Cassation Court and Federal Supreme Court and arbitration tribunals and centers. (4) To sign, execute, amend and terminate contracts, agreements, tenders and such other written instruments as may be necessary and requisite for the aforesaid in the name and on behalf of the companies. (5) To appoint employees of the Companies to carry out acts and duties of the Companies and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises to all intents and purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary respondents including but not limited to the directors and officers of ETA Engineering Private Limited. In this regard, Mr.Bartholomew Kamya is authorised to engage counsels, sign petitions, applications, clarifications, vakalatnamas, submissions, appeals, affidavits, plaints, counters, and any other documents on behalf of the company for any application or form made or submitted to the High Court of Judicature at Madras, other courts or tribunals of appropriate jurisdiction and any other judicial, quasi-judicial, regulatory or statutory authorities including the Company Law Board, Chennai and to do all such acts and deeds as deemed expedient to give effect to this authorisation. A true copy of the resolution notarised on June 04, 2014 as stated above is enclosed herewith. For and on behalf of Emirates Trading Agency LLC Sd/Name : Shaukat Ali Mir, Designation : General Manager. 6. The authorisation letter makes it clear that Mr.Bartholomew Kamya is authorised to sign petition and other documents on behalf of the company for any application submitted to the High Court of Judicature at Madras and other courts or tribunals of appropriate jurisdiction includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... san Sridharan and Mr.Damodaran Sreenivasan but in the said Power of Attorney, there was no mention of their competence to initiate winding up proceedings against the Respondent company on behalf of the bank. The Andhra Pradesh High Court has held that it is nowhere indicated in the Power of Attorney that Mr.Sudarsan Sridharan and Mr.Damodaran Sreenivasan are authorised to initiate winding up proceedings against the Respondent company, and therefore, it was held that the petition has not been validly instituted. For the said reason, the company petition was dismissed. But, this authority is not much helpful to the case of Applicants/Respondents because the issue under discussion in the present matter is not pertaining to the power of attorney. The factual position contained in the present petition and that of the above referred case law are quite different and distinguishable. 10. The Second ruling is pertaining to Mohan Lal Mittal's case (supra), that has been given by the High Court of Kolkatta in a Company petition filed under Sections 397 and 398 of the Companies Act, 1956. In the said matter, the issue involved was as to whether the letter that has been signed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court, while laying down the practice and procedure to be adopted observed that where several issues are raised before the court and there is possibility of appeal, the court must deal with all issues instead of disposing of the case on only one issue. In the present petition, the issue that has been raised is that the authorisation on the basis of which the company petition has been filed is incorrect and cannot be used under Sections 397 and 398 of the Companies Act, 1956. The issue is also required to be gone into in order to know the factual aspects with other issues raised in the company petition. 13. However, in order to know correct legal position on the issue raised, it is necessary to make a reference to the ruling given by the CLB, PB, New Delhi, in Pearson Education Inc. v. Prentice Hall of India (P.) Ltd. 2004 (7) TMI 667 - COMPANY LAW BOARD NEW DELHI. In this case, the issue involved was whether the power of attorney dated 29.05.2013 empowers Shri Ravi Oberoi to file the company petition before the CLB. The CLB after discussing the case law, in para 17 of its order has concluded that the petition under Section 397, 398 of the Companies Act, 1956 that has been s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
