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TMI Blog2018 (6) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 with appellant No.1 and Mr. Anil Ghariwala as first directors. The main object of the company is to acquire land, divide it into plots and construction of independent houses etc. In order to augment the financial resources of the company, Respondent No.1 introduced various shareholders and directors. Respondent No.1 bought 35,511 sq. mtrs of land at Surat with a view to develop the said land and selling the plots as developed plots or by constructing row houses and 179 plots were made and the Respondent No.1 also constructed Sai Unity Row Houses on the said plots. The Board of Director of the Company in its Meeting held on 15.12.2009 authorised Appellant No.1 to execute the conveyance deeds in favour of third parties in respect of Sai Unity Row Houses for and on behalf of Respondent No.1. The Appellant No.1 executed 51 conveyance deeds in favour of various buyers of the row houses/plots till 19.7.2013. 03.After approval of accounts for the financial year 2011-12, disputes started amongst the directors in respect of a piece of land bought at Bamroli in which Respondents Nos 2, 5 and 7 directors insisted on the payment of heavy amounts by way of compensation to the sellers of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs in the High Court of Gujarat pending trial of criminal case. 04.The financial statement of Respondent No.1 for the years 2011-12 was approved by the Board and certified by the auditors on 31.8.2012 but the Respondent directors did not hold the annual general meeting of Respondent.1. Though the appellant No.1 was the Chairman during that period but he was not allowed to hold the meeting. 05.In July, 2010 the registered office of the Respondent No.1 was changed. On 8.7.2010 Mr. Anil Ghariwala resigned from the directorship of the company. On 9.8.2010, Respondent No.1 held EGM and passed resolution for appointment of Respondents No.2, 5 to 8 as the directors of company. On 18.9.2010 various directors resigned from the Respondent No.1 and the same was accepted in the Board of Directors Meeting held on 18.9.2010. Thus only the three directors remain on 18.9.2010 i.e. Appellant No.1, Respondent No.3 and 4. The new Chairman violated all the provisions of company law wilfully. Being aggrieved the appellant No.1 filed Company Petition before the National Company Law Tribunal, Ahmedabad Bench, Ahmedabad alleging the following acts of omission and commission that amounts to acts of oppre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice/agenda and speed post receipts placed by Respondents were neither addressed to Appellant No.1 nor received by the appellant No.1. 09.Learned counsel for the appellants No.1 submitted that the accounts of the Respondent No.1 for the Financial Year 2015-16 were approved on 20.9.2016 whereas the accounts for FY 2012-13, 2013-14 and 2014- 15 were under compilation. Learned counsel for the appellant No.1 stated that after filing the Company Petition on 22.5.2017, Respondent No.1 company compiled the accounts and mentioned the dates of approval which are manipulated and are completely fabricated and even the reports were fully manipulated. 10.Learned counsel for the appellant No.1 further argued that the AGM for the years 2011-12, 2012-13, 2013-14 and 2014-15 were not held within the stipulated time and inspection of books of accounts, bank statements of all banks, all expenses and revenues earned by the company beginning from the year 31st March, 2012 was denied to the appellant by Respondent No.1 vide letter dated 17.3.2017 (Page No.355 of the Paper Book). 11.Learned counsel for the appellant No.1 further stated that Respondent No.1, as per the FIR, accounted for a sale of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper in the facts and circumstances of the case to do complete justice to the appellants. 17.In rebuttal, Learned counsel for the respondents stated that the appellant No.1 has approached this Appellate Tribunal with uncleaned hands. Appellant No.1 was granted bail by the Hon'ble High Court against cash security of Rs. 1,33,44,000/-, the entire amount alleged to be siphoned off by the appellant No.1. Relevant portion of the High Court order dated 02.01.2015 is as under: "4. Therefore, without adverting to the merits of the matter on the ground that it appears that against the allegation of misappropriation, now the accused is ready to deposit alleged amount before the Sessions Court and also looking to the totality of the facts and circumstances, it would be appropriate to release the applicant on bail." 18.Learned counsel for the Respondents submitted that the appellant No.1 has not disclosed before this Appellate Tribunal that he has threatened, by a public newspaper (Page 544 of the Paper Book), the statutory auditor, company secretary and all the directors of the Respondent No.1 for initiating criminal proceedings for raising fake resolution. 19.Learned counsel for the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of disputes amongst the directors and the directors were divided on this issue. Taking advantage of the situation, R2, Shri Shailesh U. Vakharia, mustered the support of the other Respondent directors to get elected as Chairman of the Board and R1 company." On a careful reading of the above lines, seeing the Minutes of the Meeting of Board of Directors held on 2nd May, 2013 and the copy of company petition, we find that notice of the Board Meeting to be held on 2.5.2013 was sent to the appellant No.1 as the respondents has also annexed postal receipt dated 25.4.2013 of the Indian Postal Department. Therefore, the appellant No.1 has wrongly stated that he has not been given notice of Board Meeting to be held on 2.5.2013. It clearly goes to show that the appellant No.1 chose to remain absent as he was very well aware that one of the agenda was to withdraw the authority given to him earlier. When the appellant cleverly chose to remain absent it was his duty to obtain the copy of the minutes and the resolution passed in the Board Meeting from the company. When he was informed about the Meeting, the appellant No.1 cleverly chose to remain absent and the required quorum was present i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts for the FY 2015-16 on 20.9.2016 whereas the accounts for 2012-13, 2013-14 and 2014-15 were said to be under compilation. After the filing of the company petition on 22.5.2017, the company compiled the accounts and dates of approval were manipulated. On going through the impugned judgement, the Tribunal has observed on this point as under: "30. It is pertinent to mention here that petition continued to be Director of the first respondent company till he was removed in the EOGM on 20.05.2017 but petitioner No.1 being a Director of the first respondent company did not raise his little finger for non-finalisation of accounts from the year 2011-12 to 2014-15. Even after criminal case was filed against petitioner No.1 he did not chose to raise the issue of non-finalisation of accounts. The fact remains that SB Vaidya & co resigned as statutory auditor of the first respondent company on 21.3.2016 and it was accepted in the EOGM held on 19.4.2016. Form No.ADT-3 filed by M/s S.B. Vaidya & co clearly disclose that the company did nto communicate with the auditors since 2013. In the EOGM held on 19.4.2016 itself M/s T.R. Mody & associates were appointed as statutory auditors. The statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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