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TMI Blog2020 (10) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... ainly go to the root of the right of Smt. Usharani in holding the disputed shareholding. Since such a dispute has already been entertained in the said CP, prima facie, the very same question cannot be entertained as it would attract constructive res-judicata. However, till the clarification is obtained, it is fair and just to safeguard the only one property held by R-1. Accordingly we are of the opinion that a status quo in regard to the landed property is to be passed till the petition is finally heard. An order of status quo pending final hearing of the maintainability of the petition is passed. - C. P. ( IB ) No. /KB/2020 - - - Dated:- 8-7-2020 - Jinan K.R., Member (J) And Harish Chander Suri, Member (T) For the Appellant : Ratnanko Banerji, Sr. Advocate, Sanwal Tibrewal, Anil Kumar Dubey, Pr. CS, Abhay Kumar Das For the Respondent : Akash Sharma and A.K. Shrivastava, Advocates ORDER Harish Chander Suri, Member (T) 1. This is an unnumbered Company petition filed under Sections 241, 242 and 244 of the Companies Act, 2013, filed by the Petitioner Ms. Usha Rani Jha through e-mail praying for various reliefs mentioned in the petition, including injunctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing equal share in the profit and loss of the said firm. Later on the petitioner was inducted as a Director of M/s. Prowess International Pvt. Ltd. on 5.03.2013 and Mr. Manoj K. Jha ceased to be the Director of the said company. And the Shareholding of prowess was also divided in the manner so as to ensure that each party had 1/3rd shares of the company. Finding opportunity to expand, the petitioner, respondent No 2 and 3 in the year 2013 decided to and thus acquired the respondent No. 1 company. Respondent No. 1 company was having three directors namely the petitioner and respondent Nos. 2 and 3, holding 5000 shares each thus having equal 1/3rd shareholding in the company. 3. It is further submitted that during the country wide lockdown and imposition of curfew to fight the deadly COVID19 pandemic, the respondent Nos. 2 and 3 with ill motive and mala fide intentions issued a notice dated 14.04.2020 to hold a Board Meeting with an agenda to fix the date of AGM to remove the petitioner as a Director from the Board of Directors of respondent No. 1. Since the petitioner was not in a position to attend the meeting and was not allowed an opportunity to participate via video conferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given on 23rd April, 2020 for the meeting schedule to be held on 16th May, 2020. The petitioner protested on 14th May, 2020, that she has been given notice only in her capacity as a director but since she is a member/shareholder as well, she would be entitled to be recognized and invited as a member holding 5000 shares, so that she may participate in that capacity and cast her vote, and that holding an EOGM would become illegal without a notice to her as a member with 1/3rd shareholding of the company. The learned senior counsel further submitted that Section 101 of the Companies Act, 2013 deals with Notice of Meeting, and subsection (3) of Section 101 provides that, (3) The notice of every meeting of the company shall be given to - (a) every member of the company, legal representative of any deceased member or the assignee of an insolvent member; It is further provided in sub-section (4) of Section 101 that, Any accidental omission to give notice to, or the non-receipt of such notice by, any member or other person who is entitled to such notice for any meeting shall not invalidate the proceedings of the meeting. It is submitted that though the petitioner was present as a director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... increase the authorized share capital and allotment of shares to respondent No. 4 deserves to be set aside. 9. It is submitted that the matter was referred in appeal to Hon'ble NCLAT. However, Hon'ble NCLAT concurred with the Order of the Hon'ble NCLT with one modification by addition of 18% rate of interest on the amount due to M/s. Prowess International P. Ltd. Hence as per both the Orders referred hereinbefore, the Petitioner has no share in R-1 Company enabling her to file an Oppression and Mismanagement case and therefore this Petition is an Application for review in the guise of Oppression Mismanagement. It is submitted that the Petitioner has two options either to file an Appeal before the Hon'ble Supreme Court or file a review before the Hon'ble NCLAT. She has no remedy here. 10. Mr. Abhay Kumar Das, learned counsel for Respondent No. 2 submitted that learned counsel for the petitioner has tried to mislead the Bench. According to the Ld. Sr. Counsel for the petitioner, the petitioner has been a director of the company with a shareholding of 5000 shares, since 2013. At this juncture, the learned counsel for the petitioner was asked to submit any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further shares in favour of respondent No. 4 is hereby set aside. The application money to Respondent No. 4 to be refunded by the Respondent No. 1 company 13. The learned counsel further submits that if the entire Board Meeting is held bad due to non issuance of a valid notice, the law says that the entire Board meeting will go and nothing would survive. The learned counsel has referred to and relied upon para 10 and 11 of the judgment of the Hon'ble Supreme Court in Parmeshwari Prasad Gupta -Appellant, Vs. Union of India, (1973) 2 Supreme Court Cases 543. The para 10 and 11 referred to as are reproduced below: 10. Now, it cannot be disputed that notice to all the Directors of meeting of the Board of Directors was essential for the validity of any resolution passed at the meeting and that as, admittedly, no notice was given to Mr. Khaitan, one of the Directors of the Company, the resolution passed terminating the services of the appellant was invalid. 11. Article 109 of the Articles of Association of the Company provides as follows: 109. When meeting to be convened. - A Director may at any time summon meeting of the Directors by serving every Director with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present petition is whether the petitioner is a shareholder or not. After going through the pleadings, documents placed by the respective parties before us and other record available, we are prima facie of the view that a decision as regards the shareholding of the petitioner needs an elaborate hearing. When a meeting was held invalid, the Resolution passed therein has to go but since the issue has been raised by the petitioner that it was set aside as regards respondent No. 4 but not as regards the petitioner, it requires further hearing supported by records and evidence available, which probably would be available with the petitioner. It can certainly not be completed in a hearing through Video Conferencing. Both the parties are interpreting the judgment as regards shareholding of the petitioner in their own way. In these circumstance, we leave this issue open, for being decided after hearing the matter further at length. Reference of a copy of annual return in Form MGT-7 dated 27.02.2018 wherein the applicant is shown as a shareholder/director having 5000 shareholding and list of shareholding annexed with it dated 31.03.2018 showing the applicant as well as M/s. Prowess Intern ..... X X X X Extracts X X X X X X X X Extracts X X X X
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