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TMI Blog2018 (4) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... allotment of RPS, if any, with an interest at the rate of 15% per annum compounded at half yearly intervals, from the date when the repayments became due (in terms of Section 73 (2) of the Companies Act, 1956) to the investors till the date of actual payment. (b) He should provide the updated detailed inventory of all assets and properties and details of all bank accounts, demat accounts and holdings of shares/securities, if held in physical form. (c) He should not access the securities market and is further prohibited from buying, selling or otherwise dealing in securities, directly or indirectly, with immediate effect. He is also restrained from associating himself with any listed public company and any public company which intends to raise money from the public, with immediate effect. This restraint shall continue to be in force for a further period of four years on completion of the repayments as mentioned on order dated October 19, 2015. (d) In case of failure to comply with the aforesaid directions SEBI, on expiry of the three months period from the date of this order, shall recover such amounts in accordance with law and may initiate any other proceedings as per law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RPS was being made in violation of Sections 56, 60 and 73 of the Companies Act, it was obligatory on his part to exercise all such powers and do all such acts as the company is authorized to exercise and do so. The appellant is, therefore, responsible along with other directors for the affairs of the company and its failure to make refunds to the subscribers of RPS. 6. The Learned counsel for the appellant argues that the appellant was not a director when the resolution regarding issuance of RPS was passed by the company. Therefore, he should not be made responsible for the acts of other directors. It is also argued that the appellant neither attended any Board meetings of the company nor did he ever visit the company since his appointment as the head office of the company was situated at a far away place from Kolkata. The appellant did not receive any remuneration from the said company and he also did not he participate in the day to day affairs of the management of the company. It is further submitted by the Learned Counsel that the appellant did not acquire any shares of the company and was never construed as a beneficial owner in the company in his personal capacity. In these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordance with law. 11. For the sake of convenience, the order of this Tribunal dated August 09, 2016 is reproduced herein below : "1. The appellant is aggrieved by the order passed by the Whole Time Member ('WTM' for short) of Securities and Exchange Board of India ('SEBI' for short) on October 19, 2015. By the said order New Land Agro Industries Ltd. ('company' for convenience) and its directors including the appellant have been, inter-alia, called upon to refund the money collected by the company through the issuance of redeemable preference shares to the investors with the interest at the rate of 15% per annum. 2. Grievance of the appellant is that, inspite of recording the submission of the appellant in para 6 of the impugned order, the WTM has not dealt with the said submissions in the impugned order. Apart from the 2 above, it is submitted for the first time before this Tribunal that the appellant had erroneously stated before the WTM that the appellant had resigned as an independent director of the company with effect from April 1, 2013 when in fact, the appellant had resigned on September 21, 2011. In support of the above contention appellant has annexed certain docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on with immediate effect in the Board meeting held on 10.10.2011. iii. A copy of his resignation letter dated 26.02.2013. iv. A copy of his resignation letter dated 01.04.2013. 15. For the sake of convenience, the three resignation letters tendered by the appellant are reproduced herein below : First Resignation letter dated 21.09.2011 "To The Board of Directors, Newland Agro Industries Limited, Bankadaha P.S. Bishnupur, Bankura, West Bengal 722 164 Sub - Resignation as a Additional Director of the company. Dear Sir, Due to some unavoidable circumstances, I hereby tender my resignation from the Board of Directors of your company with immediate effect. I shall be highly obliged if the Board of Directors of the company considers my resignation at the earliest. You are requested to please arrange for filling of Form 32 with the Register of Companies to that effect and give intimation to all the concerned departments as soon as possible and give a copy of the same to me for my reference and record." Second Resignation letter dated 26.02.2013 "Re : Resignation as a Director of the company. Dear Sir, Due to some unavoidable circumstances, I hereby t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for a continuous period of three months, whichever is longer, without obtaining leave of absence from the Board;" 18. A simple perusal of the above provision shows that it applies only to a director who in spite of notice absents himself from three consecutive meetings of the Board of Directors or absents himself from all the meetings of the Board for a continuous period of three months. In the present case, it is the case of the appellant that notice of Board meeting was never served on him. In such a case, question of the appellant remaining absent from the Board meetings does not arise and consequently the question of applying Section 283(1)(g) of the Companies Act, 1956 to the case of the appellant also does not arise. 19. It is pertinent to note that in view of the judgment of this Tribunal in Manoj Agarwal Vs. SEBI [Appeal No. 66 of 2016 decided on 14.07.2017, the appellant cannot escape the liability for the period 20.12.2010 to 01.04.2013 in any case. In paragraphs 21 and 22 of the said judgement, in somewhat similar circumstances, this Tribunal has held as under : "21. Argument advanced on behalf of the appellant that the appellant had not attended any board meeting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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