2019 (6) TMI 771

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... he Company. The prior approval of the shareholders in the AGM has been substituted by the amendment made on 6th June, 2018, which is not applicable in the present case as it was admitted earlier in May, 2018. This apart, we find that subsequently the matter was placed before the AGM in August, 2018 which also approved the decision for filing the application under Section 10 of the I B Code. In absence of any merit, the appeal is dismissed.
SUDHANSU JYOTI MUKHOPADHAYA J. (Chairperson) and BANSI LAL BHAT J. (Judicial Member) For Appellant : Mr. Sachin Datta, Senior Advocate assisted by Ms. Prity Sharma and Mr. Sidhartha, Advocates For 1st Respondent: Mr. Krishnendu Datta, Mr. Vikram Sobti, Ms. Apartna Trivedi, Ms. Pooja Mahajan and Ms. M .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... held that in absence of any decision taken in the Annual General Meeting or Extra-ordinary Meeting in terms of the 'Articles of Association', the application under Section 10 was not maintainable. 4. It has been brought to our notice that Insolvency and Bankruptcy Code has also been amended since 6th June, 2018 wherein it is laid down that without any decision of the AGM of the shareholder, no application u/s 10 of the I&B Code is maintainable. However, it is accepted that the amendment was made on 6th June, 2018, which is subsequent to the admission of the application under Section 10 of the I&B Code which was admitted on 14th May, 2018. 5. Learned counsel appearing on behalf of the Appellant relied on Article 164 of the 'Articles of As .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... the said case, the Board of Directors was not authorised to move an application for 'Liquidation' without 'affirmative vote' of the shareholders. 9. In the present case under Article 127 (xii) the Board of Directors have been empowered to pass any order for winding up and/or presenting a petition for winding up of the Company. 10. Like the case of 'Gaja Trustee Company Private limited' (Supra) no specific provision has been made to obtain 'affirmative vote' in the AGM of the shareholders. Article 164 of 'Ricoh India Ltd.' (Corporate Debtor) specifies when the 'liquidator' requires sanction of a 'Special Resolution' of the company at the time of winding up. Therefore, the said Article 164 is not applicable and cannot be relied upon to hol .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X