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TMI Blog2020 (6) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... qualifying percentage of shares to file petitions under sections 397 and 398 is clearly to ensure that frivolous litigation is not indulged in by persons who have no real stake in the company. What is required in these matters is a broad common-sense approach. If the court is satisfied that the Petitioners represent a body of shareholders holding the requisite percentage, it can assume that the involvement of the company in litigation is not lightly done and that it should pass orders to bring to an end the matters complained of and not reject it on a technical requirement. However, the Respondents have raised their objections regarding the eligibility of the Trusts which are holding 13.8% and have questioned the eligibility of Secretary/General Secretary who are repressing the Petitioners No. 3 and 4. Whether the Trust represented before the NCLT have sufficient authorization to fulfil the eligibility criteria? - HELD THAT:- In the present case it is seen that Petitioner Nos. 3 and 4 are Trusts namely, Matha Jeevan Trust and Jeeva Trust, which were represented through their Secretary and General Secretary respectively. The answer to this question would depend on whether the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 241, 242 and 244 of the Companies Act, 2013), prima facie , we are of the view that the petition is maintainable. In the instant petition, the Respondents had conducted the EoGM at Thiruvananthapuram. Even assuming that the EoGM was validly conducted by a proper requisition, if the resolutions passed in the said EoGM are oppressive in the eyes of law to the minority shareholders, then we are of the considered view that the Tribunal can exercise the inherent power to take appropriate action against the wrong doers. If the acts are done legally but not with a good faith in the interest of the company or was done with a mala fide intention to gain control over the company, the acts are said to be illegal and non-est in the eyes of law. It is explicit that, when a meeting is requisitioned by some shareholders for the purpose of removing directors, the requisitionists' letter must be circulated prior to the meeting and it must disclose the grounds on which they want to proceed against the director - the notice of the meeting must be accompanied by a copy of the resolution and an explanatory statement. In the instant petition, we have not come across any explanatory no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allotment was made mala fide with the object of gaining the control of the company? - HELD THAT:- The allotment of shares was done to achieve different purposes, i.e., to increase the number of members of their group in the company and conversion of loan amount as share application money, is to increase their shareholding and to maintain the control over the company - the directors are not entitled to use their powers of issuing shares merely for the purpose of maintaining their control or the control of themselves and their friends over the affairs of the company or merely for the purpose of defeating the wishes of the promoter Directors and to capture the company. It is well settled that if the Directors exercise their powers for the purposes other than those for which they were conferred, it may be said that they have exceeded their authority. It is evident that the mala fide intention of the Respondents 2 to 4 at the behest of Respondents 5 to 8 to remove the Petitioners from the Company has been done with undue haste for the purpose of grabbing power in the Respondent No. 1 Company. This clearly depicts that the Respondent 2 to 4 were hand-in-glove and supporting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... send all the connected files to New Delhi Bench of Company Law Board. When the National Company Law Tribunal (NCLT), Chennai Bench was constituted, the petition was taken up by NCLT, Chennai as TCP No. 234 of 2017. Further, on creation of NCLT, Kochi, the case was again transferred to Kochi Bench (hereinafter referred as 'Tribunal'). We have renumbered the case record as TCP No. 57 of 2019 and considering it under the Companies Act, 2013 (hereinafter referred as the 'New Act'). BRIEF BACKGROUND 2. The Company, M/s. Jeevan Telecasting Corporation Limited (hereinafter referred as the 'Company/JTCL) was incorporated to provide a medium for disseminating spiritual and human values, especially in view of the nature of Television programmes which were being telecast. In order to improve the quality of the Television programmes which were widely viewed by impressionable minds and to inculcate spiritual values, some of visionaries of the Church conceived of a vision to run a holistic TV Channel to cater to the requirements of spiritually and humanely inclined viewers and would be a family channel. Under the leadership of the 1st Petitioner, who was then the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscopal Churches. 6. Even after the Company was incorporated as early as 1999, the persons affiliated with the Thrissur diocese were unable to bring in sufficient investment. While facing the real crisis for survival, the Respondents were co-opted as shareholders who were capable of mobilizing funds. Then Sri. Joy Alukkas, Padmashree Dr. Sri. C. K. Menon, NRI Businessman, Mr. Dinesh Nambiar and prominent businessman Mr. Baby Mathew were prepared to assist the Company by mobilizing required fund to start its programme after approving the condition to keep the democratic set up in its entire policy and future functions. The logo was also changed thereafter to meet the requirements of policy guidelines of Government of India. After obtaining the MIB approval, it was only as late as 1-8-2002 that the Company began telecasting operations. PETITIONERS' RIGHT TO APPLY: 7. The 1st Petitioner is the Honorary Chairman/Director of the Company and holding 10 Equity shares of ? 1,000/- each of the Company and was the First Director/Chairman of the Company from the date of incorporation. The Second Petitioner is the Chairman (appointed on 27-10-2005)/Director of the Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided in Article 108 of the Articles of Association, which specifically provided that the Chairman of the Company shall be the Arch Bishop of Thrissur or his nominee. 10. The learned counsel further enumerated that the substantial holdings in the Company are held by Institutions, which are affiliated to the Arch Diocese of Thrissur, including the 3rd and 4th Petitioners. The Third Petitioner was established in 2001, and which was registered under a Deed of Trust by the Arch Diocese of Trichur. The Patron of the Trust was the Arch Bishop of Trichur. Further, the 4th Petitioner was formed under a Deed of Trust in the year 2001 by the 2nd Petitioner and the 2nd Petitioner is the first sole Trustee of the 4th Petitioner. Some of the Share Certificates are issued in the name of the Trusts but the Trustees are registered as the Shareholders in the Register of Members. 11. The learned counsel for the Petitioners in his submission stated that a large number of Shareholders in the Company are the persons who subscribed to the shares taking into account the involvement of the Church and the appeals made by the Church and the First and Second Petitioners, for the investment. Most ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o convene any Board Meeting. Further, he has never convened any Board Meeting of the Company at any point of time in the past. 14. The Petitioners stated that in order to raise funds to carry on the Company's business, on invitation to invest in the shares, Respondents 5 to 8 made investments, on various dates being fully aware of the unique circumstances relating to the formation of the Company and the pre-dominant role of the Church and its members. On 29-11-2011, Mr. P.J. Antony, Mr. N.S. Jose and Mr. Davis Edakulathur Ittoop were appointed as the Additional Directors. They were elected as directors at the Annual General Meeting held on 29-9-2012. Mr. N. S Jose was appointed as Whole-time Director/CEO by the Board on 1-7-2012. The Petitioner Nos. 1 and 2, Respondent Nos. 2 to 4 were the Directors of the Company as of September 2012. 15. The Learned counsel appearing for the Petitioners submitted that being aware of the fact that the 2nd Petitioner is out of India, the Respondent No. 3 by taking advantage of his absence, issued a notice on 3-10-2012 purporting to convene a Board Meeting on 11-10-2012 at Trivandrum. This notice was issued in contravention of Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board Meeting with the Minutes of the previous Meetings. The notice of this meeting was duly served on all the Directors of the Respondent no. 1 Company. Neither the 2nd Respondent nor the 4th Respondent turned up for the Board Meeting and the Petitioners are given to understand that the officers of the Company were prohibited from attending the Board Meeting. The Board, therefore, sought the assistance of a Practicing Company Secretary and conducted the Board Meeting. The Company has also filed the Board Resolutions dated 3-11-2012 with the Registrar of Companies, Kerala, on 5-11-2012. 19. The learned counsel submitted that as the Company had already received the consent from MIB for the appointment of Fr. Biju Alappat, as a Director of the Company, at the Board Meeting held on 3-11-2012, Fr. Biju Alappat has been appointed as an Additional Director and also designated as Wholetime Director, to take care of the affairs of the Company in the absence of CEO, the 3rd Respondent herein. As the termination of the Company Secretary was done hastily and would not stand scrutiny of the law, the Board decided to revoke the termination. As no particulars of the requisitionists who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company i.e. , at Cochin The learned counsel for the Petitioners' alleged that these actions of the Board/Respondent Nos. 2 to 4 are wholly contrary to the letter and spirit of the directions of the Hon 'ble Kerala High Court dated 6-2-2013 and Board's order dated 28-5-2013. In the circumstances, the Petitioners harped that the said actions of the Respondents are ex facie oppressive of the Petitioners' rights and any decisions taken/Resolutions passed at the said Board Meetings are invalid. The learned counsel further submitted that these are not mere directorial complaints but also gross acts of mismanagement by the Respondent Nos. 2 to 4 as Directors, and are oppressive actions against the shareholders who are in a minority though they are the original promoters of the Company. 23. The Petitioners stated that on 20-6-2013, the Company issued notice convening a Board Meeting on 29-6-2013. The notice of the said Meeting did not contain any agenda nor was any papers/Board notes circulated to the 1st and 2nd Petitioners. The Notice issued by 3rd Respondent was not addressed to the 1st and 2nd Petitioners, but they were only forwarded copies for inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of charging off fully to revenue and capitalize the remaining balance under other non-Current assets amounting to ₹ 273 lacs (Previous year: ₹ 215 lacs). iii. The Company's adjustment of gain/loss on foreign currency transactions arising from the export of service in respective party's account on actual settlement in variation with the Accounting Standard- 11 on 'The Effects of Changes in Foreign Exchange Rates' issued by the Institute of Chartered Accountants of India (ICAI) not quantified. iv. We are unable to comment on the compliance with AS 26 on Intangible Assets' and AS 28 on Impairment of Assets issued by the ICAI in the case of programme software under other non-current assets, in the absence of appropriate details. v. Non-provision of diminution in value of ₹ 122 lacs on investment in shares and the recoverability of dues of ₹ 130 lakhs in subsidiary companies. vi. Non-provision of liability of ₹ 224 lacs against a decreed creditor, the recoverability of which is stayed against bank guarantee and court fee of ₹ 5 lacs paid against the appeal pending for write off. vii. Non-renewal of cash cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Mr. Vincent Devassy also raised clarifications on 2-8-2014 and also attended the AGM on 7-8-2014 and again sought for clarifications in the presence of the Petitioners' proxies. The request of the Petitioners' proxies and a shareholder for Poll was rudely and unceremoniously turned down by the Respondent Nos. 2 to 5. Some of the important clarifications sought on the Annual Report for 2013-14 and which has been raised by Shareholders prior to and at the AGM held on 7-8-2014 are as follows: i. The difference of ₹ 32.58 lakhs, which was shown as Share Application Money in Annual Report of Financial Year (FY) 2012-13, has been now shown as a unsecured loan from Directors and categorised under Short Term Borrowing in Annual Report FY 2013-14. The Annual Report of 201213, has not disclosed/mentioned any loan from Directors, whereas, in the Annual Report of 2013-14, an entry is made as if a loan of ₹ 32,58,000/- has been taken from Directors in the previous FY 2012-13. There is a balance of ₹ 32.58 lakhs as loan repayable to a Director. ii. The difference of ₹ 1, 15,590/- is the interest on TDS. However, the interest on TDS of FY 2012-13 is sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er point number IX, the Auditors have reported an amount of ₹ 5,43,277/as payable. This again, discloses falsification and deliberate misrepresentation of Accounts. ix. Trade receivables outstanding for a period exceeding 6 months has more than doubled as compared to last year. In FY 2012-13, it was only ₹ 124.76 lakhs whereas for FY 2013-14, it is ₹ 270.42 lakhs. This appears to be an indication of bogus billing to inflate revenue during the current/earlier year. x. There is an increase of ₹ 67 lakhs in the Channel Carriage Fee and Channel Placement Charges in FY 2013-14 from expenses in FY 2012-13. Details are not provided known. There is an increase of ₹ 22 lakhs in Legal, Professional and consultancy charges when compared to previous year. No clarification on the payments made and the proceedings have been disclosed despite request by shareholders. There is an increase of ₹ 13.5 lakhs in rent paid as compared to previous year. 29. The Petitioners further stated that on 5-8-2014, the proxy forms for the Petitioners were duly lodged with the Company. During AGM held on 7-8-2014, the Item No. 1, the Audited Accounts, being taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purposes of this petition. The Respondent No. 1 Company raised a preliminary objection that the Petitioners do not conform to the qualifying standards in relation to shares as prescribed under section 399 of the Companies Act 1956. The 31 shareholders holding 8840 equity shares (or 2.95% of the Company's paid up share capital) have filed consent affidavits in support of the Petitioners. However, the said Consent Affidavits are not in compliance with the requirements of Section 399 of the Companies Act 1956. The Consent Affidavits have : a. not set out the propositions they are supporting with sufficient specificity or detail as required; b. the consents have not been given after applying their minds to the allegations and the reliefs sought in the Petition since a number of the Consent Affidavits appear to have been executed in support of the Petition many days prior to the date of the Petition and merely contain a mechanical statement that they are aware of the Petition. It is not known how a statement could be made in the Consent Affidavit that the consent givers have read the Petition . When the Consent Affidavits are dated in the end of October 2012 and the Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shop of Thrissur is to be Chairman of the Company due to its role in the Company's incorporation, but this is no longer relevant to the Company today. It would be pertinent to note that original Articles of Association dated 11-2-1999 did not have any provision for Archbishop of Thrissur or his nominee to be the Chairman of the Company. These were subsequently amended. Further, the TRAI Recommendations on the 'issues Relating to Media Ownership' state that religious bodies or offices should not be in broadcasting and channel distributing activities. Thus, it cannot be said that without any substantive role, the Archbishop of Thrissur should continue as a Chairman of the Company. 37. In relation to the substantial holding in the company held by the institutions related to the Thrissur Diocese ( i.e., Petitioner Nos. 3 4) the Respondents stated that the shareholding level is approximately 13-14% only. However, the Petitioners in acting on behalf of the Petitioner No. 3 Trust have acted without the authority of its Council of Trustees. 38. Further in relation to the stakeholder's investment in the company, the shareholders did not invest their shares for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r from that date. 42. It is also denied that R3 had no locus standi to convene a meeting. Respondent No. 3 as CEO of the Company in response to a valid request dated 30-9-2012 by 2 Directors to convene such a Board Meeting, held the Board. Meeting. Hence it is denied that the Board Meeting of 11-10-2012 was held in contravention of clause 107 of the Articles of Association. In this meeting the services of the Secretary Ms. Daijarita were dispensed with. It is incorrect to say that this meeting was invalid, or to say that the Company Secretary was unilaterally dismissed for convening a Board Meeting on 20-11-2012. Thereafter, the Respondents filed Form 32, as it was the statutory responsibility of the Directors to inform RoC when there is a change in the office of Directors or Company Secretary and this responsibility was complied with. 43. The Respondents further stated that two letters were issued to Petitioners respectively on 15-10-2012 and not on 13-10-2012 as stated by the Petitioners, containing the notice required under section of the 284 Companies Act 1956, and informing them of a proposed resolution at an upcoming EoGM removing them as Directors. Therefore, the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... board meeting to the Petitioners. 47. It is also submitted by the Respondents that the Auditors were removed, because they were unwilling to conduct the audit within the time frame and delayed the submission of accounts. It is submitted that accounts and actions of the management for the year 2012-2013 have been approved by the shareholders. It is further submitted that no change in accounting practice has been adopted for the year 2012-2013. The policy followed in earlier years have been followed for the year concerned as well. Also, for a considerable part of the year 2012-2013 the management was under the control of the Petitioners which makes them also liable for explanation if there is a need to give one. The proceedings of the AGM on 28-2-2014 was video recorded which shows that allegations of the Petitioners are baseless and contrary to facts. 48. In relation to the removal of the Petitioner No. 1 2 result in the shareholders being unrepresented is not right since there is no evidence put forward by the Petitioners showing that they represent large number of small shareholders from the Christian community and connection with the Trissur Diocese. It is also mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , joint ventures, and government funded entities and affiliates to be barred from entering broad casting and TV channel distribution sectors and that in case permission to any such organisation have already been granted an appropriate exit route is to be provided. Circumstances being above the affairs of the company are being conducted not in a manner prejudicial to the public interest and the members of the Company. 54. To fortify the above arguments, the counsel for the Respondents quoted the following citations in their written submission: Mazda Theatres Pvt. Ltd. and Ors. v. New Bank of India Ltd. and Ors -Delhi High Court.- According to section 9, the provisions of the Act override the provisions of the Memorandum and the Articles of Association insofar as the latter are repugnant to the former. Tarlok Chand Khanna and Ors. v. Raj Kumar Kapoor and Ors- Delhi High Court- Section 9 of the act provides that the provisions of the Act would have effect, notwithstanding anything to the contrary contained in the articles of the company . Sanjay Parlikar and Ors. v. Ajit Scanning and Diagnostic Centre Pvt. Ltd. and Ors. (08-12-2016 - NCLT - Mumbai) : MANU/N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various dioceses and the public to help the 1st Respondent to set the infrastructure as early as 2002. It is only after 2003, the Board sought to involve likeminded investors in the Company and the Respondents had invested in the Company by holding out that they were keen to ensure that the Objects of the Company are achieved. Such investments were accepted with the understanding and on the trust that they would not deviate from the Objects of the Company but the Respondents 2 to 8 after deceiving the original promoters and deceptively acquiring shares, are acting contrary to and compromising on the vision and Objects of the Company. The very fact that several investors have invested significant sums only due to the involvement of the Archdiocese and the Church, would establish the falsity of the Respondents' contention. The continuing role of the Arch Diocese in the affairs of the Company is obvious from the fact that its property has been provided as security for the financial facilities availed by the Company from Federal Bank, Palarivattom and which security still continues to be retained. The Respondents have recently sought to deliberately and vindictively sabotage the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be given to these Petitioners. 62. The Petitioners stated that the Hon'ble High Court of Kerala has held the validity of the EoGM and consequently, the resolutions passed would be subject to the decision of the Company Law Board. The direction of the Board and Resolutions at the invalid EoGM are clearly oppressive of the minority shareholders. The Petitioners state that the EoGM has been held in violation of the orders of the Ld. Munsiff, Thrissur and many of the shareholders, including the Petitioners, did not attend the EoGM, as the same would be a contempt/violation of the orders of the Court. The Respondents have, with impunity, violated the orders of the Court. 63. The counsel for the Petitioners submitted that 31 shareholders holding 8840 equity shares have filed consent affidavits after having read through the Petition. These shareholders are fully aware of the averments in the Petition and have consciously supported the Petitioners. The counsel for the Petitioners denied the allegations regarding the Petitioners are no longer Directors and the 2nd Petitioner has not been a Director since 2010. The validity of the EoGM where such alleged removal was affect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 204 Sangramsinh P Gaekwad v. Shantadevi P. Gaekwad [2005] 11 SCC 314. SUR-REJOINDER SUBMITTED BY THE RESPONDENTS 67. The learned counsel for the Respondents submitted that the Company is ready to release the Archdiocese's land provided as security to the Federal Bank, Palarivattom, as per the decision of the director board. The Respondent No. 5 has also pledged substantial personal property for the benefit of the Company, in the same bank for the same loan. In addition to this, 5th Respondent have pledged his valuable land property in another bank (The Catholic Syrian Bank Ltd., Market Road, Ernakulam) as a security for the bank guarantee issued for Jeevan Telecasting Corporation Ltd. 68. The learned counsel for the Respondents further submitted that 5th Respondent is Vice Chairman and Managing Director of a separate company called Jeevan Satellite Communications Ltd. and not of the Respondent Company. The 5th Respondent has not been a Director of the Company since he stepped down on 21-5-2012 and he has not held himself out as Managing Director of the Company, since he ceased to be the M.D. The document filed with the Rejoinder on which the Petitioners r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any one or more of themselves) may apply to the [Tribunal] for an order under this section, provided such members have a right so to apply in virtue of section 399. (2) If, on any application under sub-section (1), the [Tribunal] is of opinion- (a) that the company's affairs are being conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members; and (b) that to wind up the company would unfairly prejudice such member or members, but that otherwise the facts would justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up; the [Tribunal] may, with a view to bringing to an end the matters complained of, make such order as it thinks fit. The provisions laid down under section 398 are as under: 398. APPLICATION TO [TRIBUNAL] FOR RELIEF IN CASES OF MISMANAGEMENT (1) Any members of a company who complain - (a) that the affairs of the company are being conducted in a manner prejudicial to public interest or in a manner prejudicial to the interests of the company; or (b) that a material change (not being a change brought about by, or in the interests ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a share capital, not less than one-fifth of the total number of its members. (2) For the purposes of sub-section (1), where any share or shares are held by two or more persons jointly, they shall be counted only as one member. (3) Where any members of a company are entitled to make an application in virtue of sub-section (1), any one or more of them having obtained the consent in writing of the rest, may make the application on behalf and for the benefit of all of them. (4) The Central Government may, if in its opinion circumstances exist which make it just and equitable so to do, authorise any member or members of the company to apply to the [Tribunal] under section 397 or 398, notwithstanding that the requirements of clause ( a ) or clause ( b ), as the case may be, of sub-section (1) are not fulfilled. (5) The Central Government may, before authorising any member or members as aforesaid, require such member or members to give security for such amount as the Central Government may deem reasonable for the payment of any costs which the 1 [Tribunal] dealing with the application may order such member or members to pay to any other person or persons who are parties to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at High Court in Atmaram Ranchhodbhai v. Gulamhusein Gulam Mohiyaddin AIR 1973 Gujarat 113 , which stated that: - Whether the trust is a private trust governed by the Indian Trusts Act or is a public charitable or religious trust, a trustee cannot delegate any of his duties, functions and powers to a co-trustee or to any other person unless the instrument of trust so provides or the delegation is necessary or the beneficiaries competent to contract consent to the delegation or the delegation is in the regular course of business. These are the only four exceptional cases in which delegation is permissible 76. The above judgement gives four exceptional cases where a Trustee can delegate his authority to represent the Trust. To satisfy ourselves that any of the four exceptional cases is satisfied in the instant petition, we have gone through the Trust Deed dated 16-2-2005 of Matha Jeevan Trust, which is the Petitioner No. 3 herein. Clause No. 16 in the Trust Deed reads as follows: 16. Legal Proceedings: In all proceedings by or against Matha Jeevan Trust in any Court of law or revenue authorities or before any competent authorities, Matha Jeevan Trust shall be repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court judgement is satisfied by the Petitioners No. 3 and 4. The Respondents in their written submission have quoted the Hon'ble Supreme Court judgement in J.P. Srivastava and Sons Pvt. Ltd. and Ors. v. Gwalior Sugar Co. Ltd. and Ors in Appeal (civil) 6951 of 2004 on 26 October, 2004, to substantiate their contention that the Petitioners Nos. 3 and 4 do not have a locus standi to file this petition as it was not supported by a valid authorization by the respective Trusts. The judgement in the above case is as under: trustees must execute their duties of their office jointly, this general principle is subject to the following exceptions when one trustee may act for all (1) where the Trust Deed allows the trusts to be executed by one or more or by majority of trustees (2) where there is express sanction or approval of the act by the co-trustees; (3) where the delegation of power is necessary; (4) where the beneficiaries competent to contract consent to the delegation; (5) where the delegation to a co-trustee is in the regular course of the business; (6) where the co-trustee merely gives effect to a decision taken by the trustees jointly . Reading the above-mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition and for the purpose of claiming reliefs therein and therefore it cannot be considered as a blanket consent, but a valid one as contemplated under section 399(3) of the Old Act. Even assuming that the consent given by these 31 shareholders is not valid, even then, the petition satisfies the conditions under section 399 as the percentage of shareholding has already crossed the 10% threshold laid down in the Section. 81. After going through the aforesaid facts and circumstances of the instant case, and also in the light of Sections 397, 398 and 399 of the Companies Act, 1956 (Corresponding to Sections 241, 242 and 244 of the Companies Act, 2013), prima facie , we are of the view that the petition is maintainable. 82. We have considered the request of the Respondents who raised the maintainability issue as the preliminary one in the argument and also considered the case law cited by them in V.L.Sridharan and Ors. v. Econo Valves P. Ltd. and Ors. (19-7-2010-MADHC) : MANU/TN/1850/2010 , and have discussed maintainability as a preliminary issue before going into the merits of the case. Having decided that the petition is maintainable, to arrive at a conclusive decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of 5 years. On 2nd Petitioner being consecrated as the Arch Bishop of Thrissur, at the Annual General Meeting held on 27-10-2005, he was appointed as the Chairman of the Company and the 1st Petitioner was appointed as Honorary Chairman. The 2nd Respondent is a Wholetime Director of the Company and one of the two outsiders from Church. Most of the initial subscribers to the shares were persons who belong either to the Church/Trusts associated with Churches. The 3rd and 4th Petitioners were duly represented by the Secretary/General Secretary and it is found that the Share Certificates are issued in the names of the Trusts but the Trustees are registered as shareholders and their names are reflected in the Register of Members, who are the parties herein. Respondent no. 3 is the CEO of the Company. Respondent Nos. 3 and 4 were appointed as Additional Directors on 29-11-2011 by the Board of Directors and have been elected as Directors at the Annual General Meeting held on 29-9-2012. Respondent Nos. 5 to 8 had invested in the shares of the Company on various dates and the Additional Directors owing allegiance to Respondent No. 5 to 8 appear to have been co-opted in 2017. Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Old Act. It appears from the records that the Respondents No. 2 to 4 have purportedly met on 11-10-2012 at Thiruvananthapuram and have purportedly taken some decisions mainly to terminate the services of the Company Secretary. It is evident from the documents submitted by the Respondents that the alleged Extra ordinary General Meeting (EoGM) was held on 12-11-2012 at Thiruvananthapuram. In the alleged EoGM held on 12-11-2012 Mar Jacob Thoomkuzhy (P.1) and Mar Andrews Thazhath (P.2) were removed from the directorship of the Company. 86. The Tribunal has exclusive jurisdiction to decide cases of mismanagement, whether affairs of the company are being conducted in a manner which is prejudicial to the interest of the company, public and shareholders. The Respondent often pointed out on several allegations that the acts have been rendered irrelevant and infructuous due to passage of about 8 years. For addressing this argument of the Respondents, we rely on the Hon'ble High Court of Kerala order in Company Appeal No. 15/2012 dated 9-11-2012, 14-11-2012 and 6-2-2013 filed by the Petitioners. The order dated 06-2-2013 reads as follows: iv. We make it clear that any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her Act, or in the memorandum or articles of the company, or in any regulations not inconsistent therewith and duly made thereunder, including regulations made by the company in general meeting. 89. We have also gone through the Articles of Association of the Company as regards to the conduct of Board of Directors Meetings. Articles as defined in Section 2 (2) of Old Act (Corresponding to Section 2 (5) of the new Act) means the articles of association of a company as originally framed or as altered from time to time in pursuance of any previous company law or of the Act. The Articles of the Respondent No. 1 Company clearly laid down a process on how to conduct a Board Meeting, issuance of notice of the meeting etc. Clause 107 of the Articles states that: The Managing Director or the Secretary for the time being may and on the requisition of any two Directors, shall, at any time summon a meeting of the Directors. 90. However, the clauses of the Articles of Association are subject to the provisions of the Companies Act. From the above clause of the Articles of the Company read with the Old Act, we observe that the Respondent No. 3 who called for the Board of Directors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by either Managing Director or Company Secretary. When the notice dated 3-10-2012 was issued for the Board Meeting on 11-10-2012, the company had a duly appointed secretary. However, Respondent no. 3 has not used the services of the Secretary to summon this Board of Directors Meeting. While going through the records, we also found that the previously held Board Meetings on 31-3-2010, 11-8-2010, 3-9-2010, 26-11-2010, 17-6-2010, 1-9-2011, 29-11-2011,23-2-2012, 5-3-2012, 4-6-2012, 20-7-2012 and 17-8-2012 were as per the direction of the Chairman, the Company Secretary sends email to the Directors to inform the next meeting, where agenda was also enclosed. Therefore, it is difficult for us to validate the defences taken by the Respondents against the allegation raised by the Petitioners in this regard. 92. In the same Board of Directors Meeting, the Company Secretary was removed, and that was the only resolution available to the Petitioners in the public domain as per their averment. The Respondents have neither produced any minutes of the meeting nor any other resolutions passed in the said meeting. Therefore, we are of the view that that the Respondents have not been able to sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EoGM Meetings. Wherein, the Petitioners were removed as Directors of the Respondent Company. In the light of this observation, we are of the view that the contention of the Respondent that it is a mere directorial complaint cannot be sustained. The motive of removal of the Company Secretary can be found from the ultimate removal of Petitioners from the position of Directors which forms part of oppression and mismanagement. 95. At this juncture we rely on the judgement of Hon'ble High Court of Kerala in Dr.T.M. Paul Versus City Hospital ( Pvt. ) Ltd. and Others, 1998 SCC OnLine Ker 367: [1999] 97 Comp Cas 216: [1999] 35 CLA 164, which reads as follows: Holding the meeting and passing the resolutions must be held to be invalid for want of notice to the second plaintiff and also as adoption of these resolutions, without including them in the agenda in the background and circumstances of the case, amounted to fraud. In the instant petition also, notices were issued for the meetings without authority and without following the laid down procedures and with an ambiguous agenda in the notice amounts to no agenda, and therefore, we have no hesitation to treat it as null ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not state where the meeting was held. In the circumstances, we are convinced and believe that the allegations of the Petitioners that the meetings were not called with bonafide intention and are intended for the benefit of the company. 99. It is also found that on 22-10-2012, the Learned Munsiff Court, Ernakulam in O.S No. 856/2012 in I.A. No. 6569/2012 dated 22-10-2012 has granted an Order of Injunction restraining the Respondents either acting in their name or in the name of Respondent No. 1 Company from conducting any Board of Directors Meeting on 23-10-2012. Despite the above order, the Respondents apparently convened the meeting on the said date, which itself constitute the violation of Order amounts to contempt of Court. Circumstances being as above, we are of the considered view that the Board of Directors Meeting convened on 11-10-2012 and 23-10-2012 are illegal and as such invalid. 100. Extra-Ordinary General Meeting (EoGM) dated 12-11-2012 : On going through the records, we observed that a requisition from 4 of the shareholders (who are Respondent Nos. 5 to 8 herein) dated 1-10-2012 to convene an EoGM to remove Petitioner No. 1 and 2 from the Directorship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s can be oppressive . In the instant petition we observe that the Respondents had conducted the EoGM at Thiruvananthapuram. Even assuming that the EoGM was validly conducted by a proper requisition, if the resolutions passed in the said EoGM are oppressive in the eyes of law to the minority shareholders, then we are of the considered view that the Tribunal can exercise the inherent power to take appropriate action against the wrong doers. If the acts are done legally but not with a good faith in the interest of the company or was done with a mala fide intention to gain control over the company, the acts are said to be illegal and non-est in the eyes of law. 103. We have also gone through the Articles of Association of the Respondent No. 1 Company for conducting EoGM. PROCEEDINGS AT GENERAL MEETING 63. The business of an Annual General Meeting shall be to receive and consider the profit and Loss Accounts, the Audited Balance Sheet, the reports of Directors and the Auditors, to declare a dividend, to elect directors in place of those retiring by rotation and to appoint auditors and to fix their remuneration. All other business transacted at an Annual General Meeti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... want to proceed against the director. This is necessary because the company has to inform the director before any of the resolutions to remove him is considered so as to enable him to exercise the statutory right of making a representation to the shareholders about the matter. The right of representation will be an empty formality if the proposed action does not inform the director concerned of the grounds on which he is sought to be removed since he will not know what representation he should make. Therefore, we establish that the notice of the meeting must be accompanied by a copy of the resolution and an explanatory statement. In the instant petition, we have not come across any explanatory note from the requisitionsts as well as the company, attached to the letter sent to Petitioners. 107. We observe from the correspondence placed before us between the Respondent No. 3 and Petitioner No. 2, which stated that the post of Chairmanship was abolished at the Board Meeting dated 11-10-2012. We found that there is no specific legal provision under the Companies Act for removal of the Chairman of a board. The removal process relating to a Chairman is typically governed either by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company. As such they had invited some of the potential investors to help them who agreed to abide by the objects of the company, so that the company can be put on sound financial footing. That is how the Respondents No. 5 to 8 entered the Company. As per the Petitioners, Respondent No. 5 is the king pin of the entire operation of removing the Petitioners No. 1 and 2, who are the original promoters of the Respondent company and took control of the Company and running it as his fiefdom with active support and connivance of Respondent No. 2 to 4. The Respondent no. 5 started this entire operation after entry into the company at a later stage. The Respondent no. 5 started creeping acquisition of shares by gaining the confidence of the original promoters, hiding his real intentions of taking over the company. In the process, the Policy Guidelines of the MIB was also been violated by Respondent no. 5. We also observed from the records that the Petitioner No. 2 has advised Respondent No. 5 to reduce his shareholding to comply with the MIB Guidelines in this regard. It appears that this advice of the Petitioners has triggered the chain of events that led to their removal from the director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 L Ed 629: 17 US 518 [ 1819 ] , 636, cited in Laski, The Personality of Associations 29 Harv L Rev 404, a corporation is an artificial being, invisible, intangible and existing only in contemplation of law. It has neither a mind nor a body of its own. This makes it necessary that the company's business should be entrusted to some human agents. Hence the necessity of Directors. The law, therefore, continues to struggle against their wiles and imposes upon them certain duties which, when properly enforced, will without driving away from the field competent men, materially reduces the chances of abuse. Prior to the enactment of the Indian Companies Act 2013, the codified law with regard to the fiduciary duties of directors was largely silent on the said aspect, except for Section 291 which contained the provision dealing with general powers of the board of directors. Duties of directors, hitherto, were largely laid down by courts by looking at common law principles. To alleviate this situation, the New Act codified the duties of directors through section 166. Section 166(2) of the New Act reads as follows: A director of a company shall act in good faith in order to promo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Respondent Company. Even though the Respondents have contended that the allotment of shares in 2017 and 2018 were made for valuable consideration and in accordance with the provisions of the companies Act by following the due procedure prescribed under law, they have not produced any records to substantiate their stand. Further, we have not come across any effort made by the Respondent Company to augment their capital by offering shares to all the shareholders of the Company. This led us to believe that the entire allotment of shares by converting the loans is a sham. In the process and in their hurry to alter the control and management of the Company, the Respondents even violated MIB Guidelines. The second point is after they came to know of the violation of MIB guidelines regarding shareholding, they indulged in another sham act of transferring their shares to 151 persons just to increase the number of small shareholders and also to support their nefarious activities. After the removal of the Petitioner 1 2 from the Directorship, Respondents Nos. 3, 5 8 along with 13 other shareholders transferred their shares to 151 persons, among these 28096 equity shares held by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding company to its wholly owned subsidiary company or any guarantee given or security provided by a holding company in respect of any loan made to its wholly owned subsidiary company is exempted from the requirements under this section; and (2) Any guarantee given or security provided by a holding company in respect of loan made by any bank or financial institution to its subsidiary company is exempted from the requirements under this section: Provided that such loans made under sub-rule ( 1 ) and ( 2 ) are utilised by the subsidiary company for its principle business activities. 123. It was evident from the record submitted before us that in the year 2012-2013 loans have been advanced to subsidiary companies, Jeevan Satellite Communication Limited (JSCL) and Telejeevan Communications and Services Private Limited (TCSPL) in which Respondent No. 3 and Respondent No. 2 are Directors of the subsidiary company respectively. Even though the loan has been advanced to subsidiary companies cannot be taken into consideration as violation of Section 185 if it is sanctioned to be utilized only for the subsidiary company's principal activities. But the record before us sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who holds 19.14% of shares in the Company, during the financial year 2013-2014 altered his shareholding and reduced to 9.97% to obtain his licence from MIB and unilaterally transferred certain shares to a single person named Mr. C. M Joseph. All these transactions appear to be shrouded in secrecy and appear altogether to be benami transactions. 127. As regards the allegation raised by the Petitioner, we have gone through the records and found that the 5th Respondent who was removed from the post of Director, to whom the security clearance was rejected by the MIB on 21-5-2012, has signed as Manging Director in the 'Directors Report' during the 14th Annual General Meeting. Even though the Respondent No. 5 has contended that he has resigned from the Directorship as per the MIB guidelines, it appears from the records that he had a free run in the affairs of the Respondent Company and its subsidiaries with the active support and connivance of the other Respondents to the detriment of minority shareholders, which we finds to be unjust and not proper. 128. Circumstances being above it is necessary to consider Section 166 (2) of the Companies Act 2013, which states as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce circulated by the Respondent which was not specifically mentioned about the retiring Auditor shall not be reappointed that leads us to the interpretation that the Auditor is removed by the Respondent not through proper channel. Even though the Respondents have contended that even M/s. Krishnan Co who were made auditors by removing the existing auditor are not the auditors and appointed new one, does not hold any water as we are considering the process of removal of auditor in the first place. We are not concerned with who is the present auditor of the Respondent Company. 131. Subsequently, we have gone through the proceedings of the AGM held on 28-2-2014 and we found out that several shareholders including proxies of the Petitioner sought clarifications regarding discrepancies in the accounts but the Respondents did not give any clarification regarding the issue. This reflects that the company is being run by the 2nd to 8th Respondents suppressing all forms of difference of opinions and by intimidating any dissenting shareholder. 132. Let us examine the allegations of the Petitioners in the light of Section 398 of the Old Act. It provides that any members of a compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable to a Director. JTCL holds 92.19% shares in Jeevan Sattellitte Communications Limited (JSCL), where N. S Jose (Respondent No. 3) is a Director in JTCL and JSCL whereas, JTCL holds 87.19% shares in Telejeevan Communications and Services Private Limited (TCSPL) where P.J Antony (Respondent No. 2) is a Director in both JTCL and TCSPL. JSCL and have not pursued any activity as envisaged in the main objects of the companies. Hence the said loan advances cannot be construed as for principal business activity of the subsidiaries. Therefore, the loan is in contravention of Section 185 of the Companies Act, 2013. 133. Thereafter, we have scrutinised the Annual Report of 2013-2014 and Annual General Meeting dated 7-8-2014, which was video graphed pursuant to the order in C. A. 117 of 2014 passed by Company Law Board, New Delhi dated 1-8-2014 and we understand that the Annual Report for the Financial Year 2013-2014 also reflected many misrepresentations. We have also gone through the e-mails annexed with the petition as Documents No. 77 and 78 dated 2-8-2014, sent by Fr. Biju Alappat and Mr.Vincent Devassy to the Company seeking clarifications on the Annual Report and that were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted by Fr. Geo Kadavi who has been represented as the proxy of 1 st and 4th Petitioners. We have gone through the proxy forms submitted by the Petitioners and found out that in Document No. 79 the 1st Petitioner has duly authorized Fr Geo Kadavi as his proxy by signing the proxy form. As such, the argument made by the Respondent doesn't hold any water. The attitude of the Respondents as derived from the records that they are not ready to share any information with shareholders who are not belonging to their groups and also trying to suppress the voices raised against them. This itself recognised to be an act of oppression against minority shareholders, besides hiding the discrepancies in the financial statements and refusing any semblance of discussions on the discrepancies pointed out. 139. Further, in the counter the Respondents stated that the policies adopted were followed in the earlier years and in the year 2012-2013 the management was under the control of the Petitioners. From the reply we found out that the Respondents are not willing to make appropriate answer to the discrepancies alleged by the Petitioners and they are simply blaming the Petitioners who que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prehended. 142. From the records submitted before us, we observe that there was an effort made by both the groups to come to an amicable settlement of the matter and several adjournments were taken indicating that the talks are going on. However, the efforts of the parties have not fructified to arrive at an amicable settlement. During the course of arguments and in their written submission, the counsel for the Petitioners has indicated that the Petitioners group is ready to purchase the shares of the Respondents to protect the interest of the company and the minority shareholders. However, we also observe that the Respondents are not interested in the said proposal by the Petitioner. 143. In the light of the above discussion and the gravity of allegations raised by the Petitioners, we have framed four issues in the matter. All the issues framed by us have been conclusively proved the allegations of the Petitioners. Therefore, this Tribunal is of the considered view that the Company's affairs in relation to the Petitioners have been conducted in an oppressive manner by the Respondents and the facts would render that it is just and equitable to wind up the Company. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereby declare that all the Board Meetings as well as the Annual General Meetings of the 1st Respondent Company held after 29-9-2012 as null and void and consequently the resolutions passed and decisions taken therein are set aside. vi. At this juncture, we also propose to give an exit option to the Respondents by considering the proposal made by the Petitioners to purchase their shareholdings at a fair value as decided by an independent valuer appointed by the reconstituted Board as per point no. (iii). vii. An Independent Auditor shall be appointed by the reconstituted Board as per point no. iii, within a month from the date of this order, to audit the accounts of the 1st Respondent Company along with its subsidiary companies for the Financial Years 2012-2013 and 2013-2014 and submit a report to the Respondent Company within 60 days from the date of appointment. The Respondent Company should place the report of the independent auditor for the information of the shareholders in the proposed Extra ordinary General Meeting, which is to be held as per point no. iv. viii. We hereby direct the Regional Director, Ministry of Corporate Affairs, 5th floor Shastri bhawan 26, Hadd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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