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TMI Blog2020 (12) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor in the company since incorporation till May 14, 2019 and the applicant was removed from the position of managing director. It is averred in the application that the applicant is holding 5,000 shares, i. e., 0.04 per cent. of the total issued share capital of the first respondent-company. The applicant has submitted that facts stated in the accompanying company petition need not to be repeated for the sake of brevity and craves leave to rely upon the contents of the petition proposed to be filed under sections 241 and 242 of the Companies Act, 2013. 3. The company petition gives the details of the matter complained of and the reliefs sought for, i. e., setting aside the unlawful board resolution dated May 14, 2019 by which, all the powers, privileges and rights of the applicant as managing director were taken away and it is also prayed to set aside the unlawful circular resolution Nos. 1, 2, 3 and 4 and 5 of 2019 passed on May 14, 2019 to remove the authorized signatory of the first respondent-company, and to set aside the unlawful board resolution dated May 6, 2019 seeking to remove the applicant from the post of managing director of the first respondent-company and restrain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representatives as well. Such alternate representatives of management shall be entitled to attend and vote at meetings of the representatives and to be counted in determining whether a quorum is present in the absence of the appointing/nominating representatives only if the appointing/ nominating representative is absent due to sickness or not being present in the state in which meetings of the representatives are ordinarily held." 7. From the conditions mentioned above, it becomes clear that the applicant, viz. ; Mr. Anil Aggarwal will manage the operations of the JVC, i. e., Omega Icehill P. Ltd., i. e., the first respondent-company. Further, counsel for the applicant has referred to annexure A16 wherein vide e-mail dated April 24, 2019 an agenda for meeting of the first respondent-company was circulated. However, a mail has been sent by respondent No. 3 on May 6, 2019 calling for convening the board meeting at 1.30 p.m. on the same day, wherein the agenda item was to remove the applicant from the post of the managing director and the authorized signatory of the first respondent- company. By pointing out towards the conduct of the respondents, it is submitted that respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich have been brought into force with effect from April 1, 2014 which prescribes the procedure for appointment of the managing director. It is contended by counsel for the respondents that there is nothing on record to suggest that applicant/petitioner was appointed as managing director in compliance with the procedure prescribed under the said provisions. However, it is noted that in case of a private company like the present one the provisions of section 196(4) and (5) were not applicable with effect from June 5, 2015. Therefore, the arguments of counsel for the respondents are misplaced. 11. Learned counsel for the respondents has referred to the annual returns and balance-sheets of the first respondent-company for the period starting from 2010 to March, 2018 wherein the name of the applicant/petitioner has been shown as one of the directors and not as managing director. It also reflects from form 20B that the applicant/petitioner is director of the first respondent-company. Learned counsel for the respondents has referred to article 38 of the articles of association, and submitted that the said article does not provide for appointment of managing director of the first respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utes of the board meeting held on May 14, 2019 and under paragraph 6 of the minutes the agenda recorded is to withdraw powers, privileges and rights of the managing director, viz., Mr. Anil Agrawal (applicant/petitioner) and to terminate his appointment as the managing director of the first respondent-company with immediate effect. Learned counsel for the applicant/petitioner has also referred to paragraph (vi)(d) of the reply filed by the respondents which reads as follows : "The petitioner has been the managing director of the first respondent No. 1 since the incorporation of respondent No. 1, i. e., for last 10 years without seeking any formal reappointment upon completion of his five years term." 14. After having made a reference to the above, it is submitted by learned counsel for the applicant/petitioner that the arguments of learned counsel for the respondents are contradictory to the records of the proceedings of the Board which has passed the impugned resolution on May 14, 2019 the detail of which is already noted in the preceding paragraphs. 15. Learned counsel for the applicant/petitioner has submitted that reference made by counsel for respondents to the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that during the ordinary course of business certain communications have been made by the applicant/petitioner, wherein he has mentioned his designation as managing director of the first respondent-company, but there was no objection by the respondents at the relevant point of time. Further, learned counsel for the respondents has also referred to the pay slip for the month of April, 2014 wherein the applicant/petitioner's designation is shown as managing director of the department of administration of the first respondent-company. It needs to be examined as to whether the applicant has been holding the position of the managing director of the company as a whole or not. 18. Besides the above, it is pertinent to note that under paragraph 6 of the minutes of the board meeting held on May 14, 2019 the agenda is to withdraw powers, privileges and rights of the managing director, viz., Mr. Anil Agrawal (applicant/petitioner) and to terminate his appointment as the managing director of the first respondent-company with immediate effect. Learned counsel for the applicant/petitioner has also referred to paragraph (vi)(d) of the reply filed by the respondents, which is again reitera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quirements of section 244(1) for filing the petition under section 241 read with section 242 of the Companies Act, 2013. Therefore, it is prayed by the applicant/petitioner to grant waiver of the requirements of section 244(1) for filing the petition under section 241 read with section 242 of the Companies Act, 2013 against the respondents. For the sake of convenience, the provisions of section 244 of the Companies Act, 2013 are reproduced as follows : Section 244 of the Indian Companies Act, 2013 : "244. Right to apply under section 241.-(1) The following members of o company shall have the right to apply under section 241, namely :- (a) in the case of a company having a share capital, not less than one hundred members of the company or not less than one-tenth of the total number of its members, whichever is less, or any member or members holding not less than one tenth of the issued share capital of the company, subject to the condition that the applicant or applicants has or have paid all calls and other sums due on his or their shares ; (b) in the case of a company not having a share capital, not less than one-fifth of the total number of its members : Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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