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TMI Blog2016 (9) TMI 1569X X X X Extracts X X X X X X X X Extracts X X X X ..... davit wherein the memorandum of association and the articles of association as amended up to 2014 is annexed and marked as annexure A, the petitioner was sitting idle. It is an established principle that every alteration of the memorandum of association and the articles of association be filed with the Registrar of Companies. The respondents have also failed to explain and/or file any documents to show when the resolution was/were taken to amend the memorandum of association and the articles of association, as amended up to 2014 with due notice to member(s) - On the other hand, it is also found that the respondents have failed to show/prove and/or annexed any copy of the notices of annual general meeting which are issued to the petitioner which is mandatory as per their own articles of association as amended up to 2014. It is admitted by the respondents that the petitioner is the member of Bengal Chemist and Druggists Association. As per the articles of association of the company, 2005 as enclosed by the petitioner with the petition, at clause 32. A general meeting will be held once in every year at such time by giving at least 21 days notice to its members (not being more th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion disposed off. - C. A. Nos. 908 and 1114 of 2015 in C. P. No. 60 of 2015. - - - Dated:- 29-9-2016 - Ms. Manorama Kumari Judicial Member For the Petitioner : Arup Krishna Das and Ms. Jasmine Sheikh For the Respondent : Aniruddha Mitra and Ms. Aiman Abdullah ORDER MS. MANORAMA KUMARI (JUDICIAL MEMBER). - 1. The instant case is filed by Shri Kalyan Chowdhury, being one of the members, having Membership No. BRD/2687 of M/s. Bengal Chemists and Druggists Association, 12, Bonfield Lane, 1st floor, Kolkata-700 001, on December 31, 2015 under section 397 read with regulation 44 of the Company Law Board Regulations, 1991, alleging certain acts of mismanagement by the respondent association along with six others. 2. M/s. Bengal Chemists and Druggists Association, 12, Bonfield Lane, 1st Floor, Kolkata-700 001 was incorporated on July 11, 1921 under the Indian Companies Act, 1913 known as M/s. Calcutta Chemist and Druggist Association and subsequently the name of the company has been changed as M/s. Bengal Chemists and Druggists Association vide the Government of West Bengal Memo No. 932-Com., dated April 11, 1950 and a fresh certificate of incorporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be held on July 10, 2014 with a request to the members to attend the meeting to transact the business mentioned in the agenda of the said notification. The photocopy of the said notification is also enclosed as annexure A5 showing venue of meeting as Vivekananda Institute (Durand Cinema Hall), Asansol. 10. It is alleged that in terms of clause 32(a) of the articles of association of the company, as amended up to 2005, categorically states that with the prior permission of the Registrar of Companies the annual general meeting may be convened in such place where the members are willing to have it convened with prior invitation at least before 3 (three) months of the annual general meeting but in the instant case the said annual general meeting has been convened just after 22 days of the notification which is contrary to the rules mentioned in the articles of association of the company. 11. As per the petitioner, in the matter of convening the 28th and 29th annual general meeting, no bye-laws of the memorandum of association and the articles of association has been followed, specially nothing has been submitted regarding the accounts of the previous year and the Committee Repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a vires as the same has been called by not giving three months' prior notice as laid down in clause 32(a) of the articles of association ; (b) To declare that the formation of the Committee and selection of office bearers of the said Committee on July 10, 2014 is illegal, arbitrary and inoperative as the same has not been done by casting vote of the members present in the annual general meeting held on July 10, 2014 rather the respondents in collusion with each other formed the Committee ; (c) The office bearers of the same which is illegal and arbitrary and liable to be cancelled ; (d) To direct the respondent-company to call for annual general meeting afresh after giving 3 (three) months prior notice and to constitute the Committee and office bearers of the said Committee by the vote of the members by ballot papers ; (e) To declare that appointment of convenor Sri Amitava Roy as ille gal, invalid and inoperative as no meeting held on April 18, 2014 by the executive Committee and as such said Sri Amitava Roy has no locus standi to call for holding annual general meeting which is required to be called for afresh in accordance with the provisions of the articles of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g takes place only for passing accounts. 25. He further averred that the meeting at the District or Zonal levels are not annual general meeting of the company. 26. The respondents further averred that in terms of clause 26(d)(ii) of the articles, all disputes out of Zone or District Committees must be referred to the State Association for adjudication. Moreover, in clause 56(a) there is an arbitration clause, which is binding on all the members and in terms thereof all disputes arising between a member and the association needs to be referred to arbitration. 27. The respondents further averred that the petitioner does not have the requisite shareholding and/or support and as such company application under sections 397 and 398 of the Companies Act, 1956, does not lie. 28. The respondents also have taken the ground of non-joinder and misjoinder of the parties and prayed for dismissal of the company petition. 29. The learned lawyer on behalf of the respondent argued that after the nomination of Shri Amitava Roy, as convenor of the Asansol Zone vide notice dated May 20, 2014 issued by respondent No. 3, election of Budwan District Committee had taken place sometimes on Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al meeting may be convened at any such place where the members are willing to have it convened with a prior intimation at least before three months' from the date of holding the annual general meeting. 35. Whereas the respondents relied upon the memorandum of association and the articles of association as amended up to 2014. 36. On bare perusal and comparison of both the memorandum of association and the articles of association, 2005 as also of 2014 contain and reflect almost the same objects and terms. 37. The memorandum of association and the articles of association, as amended up to 2005 vis-a-vis, 2014 at clause 26(d)(i) speaks that Zonal/ District/Area Committee will hold their general meeting with specific agenda of election apart from usual agenda at least every two years within month May and June for the Zonal Committee and in the month July-August for the District/Area Committee. Such Committees may hold the general meeting at later date with necessary permission from the Executive Committee and clause 32 of the articles of association of 2005 vis-a-vis of 2014 speaks that general meeting will be held once in every year at such time by giving at least 21 days& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory to maintain the minutes of the said meeting. 44. In terms of section 193 of the Companies Act, 1956, every company has to keep a record of every proceeding of its general meetings, meetings of the board of directors and every meeting of the Committee of Board. These records of proceedings are called minutes which are required to be prepared within 30 days of conclusion of every such meeting. Each page of minutes must be initialled or signed and last page of minutes must be signed and dated by the chairman of the concerned meeting. 45. A duly maintained minutes is regarded as substantive piece of evidence and the resolution passed in the meeting concerned, would have legal sanctity which has not been followed by the respondent(s). 46. I have gone through the allegations levelled in the company petition, reply filed by the respondents, rejoinder submitted by the petitioner, arguments advanced by both side. 47. Having perused the documents placed on record, it is observed, that the petitioner is one of the members of the company and is entitled to make an application on virtue of sub-section (1) of section 399, which speaks, viz., any one or more of them having obtai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng as stipulated in the memorandum of association and in the articles of association and that notices of the meetings have duly been served upon the petitioner/s as per clause 32(a) of the memorandum of association and the articles of association of 2005 vis-a-vis 2014 and the Executive Committee members were elected by way of casting the votes by the ordinary members. 54. The pre-conditions of holding the annual general meeting have not been fulfilled as the respondent has failed to produce the proof of service of notice of the annual general meeting held on July 10, 2014 to the members, attendance sheet of the said annual general meeting and the minutes of meeting thereof. 55. This itself shows that meeting held on July 10, 2014 is not as per the memorandum of association and articles of association as of 2005 vis-a-vis of 2014 and all the office bearers of the Executive Committee had been unilaterally elected which is prejudicial and against the interest of the member(s). 56. Though there is provision of referring the disputes between the parties for arbitration as per clause 56 of the articles of association of the company ; both of 2005 vis-a-vis of 2014 as amended up ..... X X X X Extracts X X X X X X X X Extracts X X X X
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