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TMI Blog2020 (9) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... also issued notice asking the Respondent No.1 Company to show cause why the name of the company should not be struck off from the Register of Companies. The section confers on the Tribunal to order the AGM of the company to be conducted if there is a default. The Respondent No.4 has submitted on oath in the form of affidavit that there is no possibility of any business relationship between it and the Petitioner that could contribute to reviving the business of the Respondent No.1 Company. There is also the matter of the petition bearing CP No.2530/2018 filed under sections 271-272 of the Companies Act, 2013 for winding up of Respondent No.1 Company, which is pending before a coordinate bench of this Tribunal - The exercise of judicial discretion vested in us by virtue of section 97 ibid should be used with great circumspection, and carefully calibrated to do good to the Respondent No.1 company. In a milieu of paralysis caused by two sets of members holding equal shares and having coequal powers on the Board not willing to bury the hatchet and come to terms with each other, ordering the AGMs of the Respondent No.1 Company, while being legally sustainable in terms of section 97 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst Eepos Fine Rail Systems India Private Limited (Respondent No.1 herein) under section 241 of the Companies Act, 2013. (b) CP No.2530/2018 filed by Eepos GmbH (Respondent No.4 herein) against Eepos Fine Rail Systems India Private Limited (Respondent No.1 herein). 4. Averments in the present petition 4.1. It is the case of the Petitioner that Respondents No.2 and No.4 did not take active part in the day to day affairs of the Respondent No.1 Company, and that it was the Petitioner and Respondent No.3 who took efforts to promote the business of the Respondent No.1. However, even these efforts were scuttled by Respondents No.2 and No.4. Further, Respondent No.4 started a competing business in India by establishing another company, viz., Eepos India Private Limited. 4.2. The Petitioner states that Respondents No.2 and No.4 have created a situation of deadlock on the Board of Respondent No.1. As a result, business decisions and even statutory compliances came to a standstill. This led to a notice from RoC, Maharashtra, Pune, asking the Respondent No.1 Company to show cause as to why its name should not be struck off the register of companies. 4.3. The Petitioner al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary support in carrying out the business of Respondent No.1 company. The Articles of Association of Respondent No.1 were drafted in such a manner so as to give equal rights to both sets of shareholders. 5.4. According to the answering Respondents, Respondent No.1 never imported the systems from Respondent No.4. It is alleged that this was because of the insistence of Respondent No.3 to execute a Joint Venture Agreement (JVA) first. It is also alleged that the JVA had unreasonable conditions, inasmuch as Respondent No.3 wanted to have exclusive right to sell these systems in Indian markets by using the Eepos brand, which was unacceptable to the Respondent No.4. Therefore, the Respondent No.4 insisted that all business would be done only through Respondent No.1 company and not in the name of the Respondent No.3 either in his own name or in the name of the Petitioner. 5.5. Respondents No.2 and No.4 have further submitted that there was no proper communication from Respondent No.3 to Respondent No.2. Respondent No.2 being a resident of Germany, had to travel from Germany to India and was never reimbursed for his travelling expenses. Respondent No.2 was never served with formal n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g anything in this Act or in the articles of the company, on the application of any member of the company, call, or direct the calling of, a general meeting of the company and give such ancillary or consequential directions as the Central Government thinks expedient in relation to the calling, holding and conducting of the meeting. Explanation: The directions that may be given under this sub-section may include a direction that one member of the company present in person or by proxy shall be deemed to constitute a meeting. (2) A general meeting held in pursuance of sub- section (1) shall, subject to any directions of the Central Government, be deemed to be an annual general meeting of the company. Provided that in the case of revival and rehabilitation of sick industrial companies under Chapter VIA, the provisions of this section shall have effect as of for the words Central Government , the word Tribunal had been substituted. 6.3. Originally, under the Companies Act, 1956 (the 1956 Act), the power under section 167 was conferred on the Company Law Board to call annual general meeting. The power was taken away from the Company Law Board and ves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Provided that annual general meeting of an unlisted company may be held at any place in India if consent is given in writing or by electronic mode by all the members in advance: Provided further that the Central Government may exempt any company from the provisions of this sub-section subject to such conditions as it may impose. Explanation.-For the purposes of this sub-section, National Holiday means and includes a day declared as National Holiday by the Central Government. While there are exceptions, modifications and adaptations in respect of section 8 companies and Government companies issued vide Notifications dated 05.06.2015 and 13.06.2017, those do not concern us for the limited purposes of this petition. 7. The Findings 7.1. The admitted position is that there is a default within the meaning of section 96 of the Companies Act, 2013 in conducting the AGM of the company, albeit with both sides blaming each other for the default. There was exchange of correspondence in so far as the financials were concerned. Given the indurate positions of both sides as revealed during the course of arguments, we do not see this being resolved to satisfact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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