9911796707
TMI Blog2020 (3) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... Company'). The registered office of 1st Respondent Company is at presently situated at 28/212/2 Aswini Hospital Building, Karunakaran Nambiar Road, Trichur, Kerala. It has been incorporated on 31.05.1994. 2. The authorised share capital of the company is Rs. 1,00,00,000/- (Rupees One Crore Only) divided into 10,000 Equity Shares of Rs. 1000/- each. The issued, subscribed and paid-up capital of the company is Rs. 99,65,000/- (Rupees Ninety Nine Lakhs Sixty Five Thousand Only) divided into 9,965 equity shares of Rs. 1,000 each. The Company let out its buildings and its equipment to Aswini Hospitals Limited. Submissions by Petitioner: 3. The Ld. counsel for the petitioner submitted that the petitioner and R2 to R5 were appointed as directors of the first Respondent company on 12.09.2012. The petitioner has challenged the following decisions under section 241 of the Companies Act, 2013 (hereinafter referred as 'Act') which were taken in the Extra-Ordinary General Meeting (EGM) purportedly held on 27.07.2015 by the Respondents 2 to 5: (i) Petitioner was illegally removed from the directorship; (ii) Forfeited the share held by the petitioner; and (iii) Appointment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed in the Articles of Association or the Act and hence void. 8. The counsel for the petitioner further submitted that R2 to R5 on 29.07.2015 barged into the Registered office of the company along with goondas and took away all the statutory records of the Company. Aggrieved by the above reasons' petitioner filed this petition under section 241 and 242 of the companies Act, 2013 against the EGM purportedly held on 27.07.2015 itself has not actually been held and thereby a fraud was committed on the shareholders of the company. Counter Submissions by R1 to R11: 9. The counter statement filed by R1 to R11 stated that the R1 company is a subsidiary of Punarjani Securities Limited (R20) and the petitioners have filed two petitions in the year 2015 in CP No. 56 and CP No. 57 of 2015 and was renumbered as TCP No.177/2016 and TCP No.178/2016 respectively in relation to the affairs of Punarjani Securities Limited and Aswini Hospital limited on identical basis. 10. The respondents in their counter stated that the petitioner had proceeded against the respondents on questioning the validity of an EGM dated 27.07.2015 and submitted on an alleged basis that the said EGM was held wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Company has thereby rescinded the share allotment contract and forfeited the shares. 16. The contention that R2 to R5 barged into the Registered Office of the Company along with goondas and took away the statutory records of the company was completely denied. There is no requirement for the respondents to barge into the Registered Office as they themselves constituted a part of the Board of Directors of the R1 Company. Submissions by Respondents 12 to 22: 17. The counsel for R12 to R22 submitted that in terms of section 169 (2) a special notice is required to be given for removal of the directors by the shareholders and on receipt of such special notice by the company, the said notice is required to be served forthwith on the directors individually sought to be removed in terms of Sec. 169 (3) of the Companies Act, 2013. 18. The counsel further submitted that the Company has not received any special notice from any shareholder in terms of section 169 (2) and R12 to R19 did not receive any notice from the Company in terms of sec. 169 (3) of the Act, thereby, R12 to R19 were denied the opportunity to make their representation on the alleged removal from the office of di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that any change in the residential status can be updated by filing DIR 6 with the Central Government. Sur Rejoinder by Respondents R1 to R11: 26. It is submitted that the counter has been signed by R2 alone and not signed by R1 and R3 to R11, as they have appointed R2 as their lawful Power of Attorney Agent by way of a duly executed Power of Attorney as on 17.04.2017. Further, it is also submitted that R1 company has duly authorised R3 by way of Board Resolution dated 03.03.2017 to sign vakalats' with respect to this Company Petition. 27. It was further submitted that the respondents could not conduct the AGM for the financial years 2014-2015 and 2015-16 as the respondents were not permitted to enter the premises of R1 Company, which is situated at the premises of Aswini Hospital, even though the respondents are on the Board of Directors. Having prevented their entry, the petitioner cannot now question why the AGM for the Financial years 2014-15 and 2015-16 have not been held and why Balance Sheets and Annual Returns for those two financial years have not been filed with the Registrar of companies, Kerala. 28. The Sur-rejoinder speaks out that all the records including th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find from the records that both the cases are already disposed of by NCLT, Chennai Bench. We, therefore, rely upon the Orders on TCP No.177/2016 and TCP No. 178/ 2016 dated 04.10.2017 and 13.11.2017 respectively, which are of similar nature. From the records placed before us, we are of the view that none of the shareholders have received the notice of EGM purportedly held on 27.07.2015. Moreover, the Respondents R1 to R11 neither attached the notice of the Board Meeting as well as the Extra ordinary General Meeting purportedly held on 01.07.2015 and 27.07.2015 respectively nor attached the minutes of the Board Meeting nor proof of dispatch of notice. It is observed from the records that notice of the EGM dated 01.07.2015, showing Item No.1 and Item No. 2 under the head Special Business, which is attached with the Form DIR-12 in relation to removal of directors (Petitioner and R12 to R19) from R1 Company, filed with Registrar of Companies, was not signed by the Chairman or any of the Director. It does not show who has issued the said notice. The other part of Notice showing Item no.3 under the Ordinary Business is attached with Form DIR-12 in relation to appointment of Directors (R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents R6 to R11 as Directors of 1st Respondent Company was made by a single resolution which is also in violation of the provisions of Section 162 of the Companies Act,2013. Issue No. (ii): - 34. At the outset, it may be stated that the Companies Act, 2013 does not contain any provision for forfeiture of shares. But, the companies normally make the provisions in the Articles of Association along with the procedure for forfeiting the shares only when the shares have already been allotted and not paid-up to the full extent of the face value and premium, if any. In this case, the Respondent 2 to 11 failed to show any of the provisions of the Articles of the Association of the 1st Respondent company which could have authorised the Directors to forfeit the shares for non-disclosure of the residential status by the shareholders. 35. The Respondents R2 to R11 being Directors at the time of forfeiture of the said shares on 27.07.2015, and assuming they were authorised to cancel the shares, we are of the view that legally the Directors of the Company cannot utilise their fiduciary powers over the shares purely for the purpose of cancellation of the shares of the minority shareholders to i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
