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TMI Blog2021 (4) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... : a) Pass necessary order/orders declaring that the Petitioner has no locus standi to maintain TP No.26/2016 (CP No.80/2000) for not being eligible as per the requirement of prescription of law as contained in Section 244 of the Companies Act, 2013 (Section 399 of the Companies Act, 1956) which is mandatorily required to maintain the petition under Section 241/242 of the Companies Act, 2013 (397/398 of the Companies Act, 1956). b) In the interim pending disposal of this instant interlocutory application, this Hon'ble Tribunal be also pleased to keep in abeyance the main proceeding of TP No.26/2016 (CP No.80/2000). c) Further, this Hon'ble Tribunal may be pleased to pass other appropriate & necessary orders/directions considering the facts and circumstances of the case as may deem fit and proper for the ends of justice". 2. The applicants in this I.A. i.e. Respondent Nos.1&4 in the main petition have stated that the deceased father of the Petitioner had filed an application being registered as Company Petition No.80/2000 before the Company Law Board, Principal Bench at New Delhi, under Section 397 and 398 of the Companies Act, 1956, inter alia alleging mismanagement and oppre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner being his son. It was claimed that the Notification form was received by the company and acknowledgement regarding receipt of nomination was issued by one Ratul Saikia vide letter dated 11.11.2014. 6. It has been stated that the Learned Tribunal issued notice upon the parties arrayed as Respondents including the present respondent No.1 & 4. The present Respondent No.1 & 4 i.e. Applicants herein, appeared through its engaged counsel and Respondent No.2 appeared in person. 7. It is stated that the Applicants had filed reply affidavit as Respondent No.1 and 4, inter alia contending that the petitioner does not fulfil criteria for being a petitioner in a proceeding filed under Section 397 and 398 of the Companies Act, 1956. In order to assail mismanagement and oppression under the aforesaid provision of law, one has to be member of the company. Merely by virtue of a purported nomination, the petitioner has not accrued right to pursue the instant proceeding as he has not yet become the member of the company. Further the purported nomination shown to be sent to the Applicant's company's address during the life of the petitioner deceased father is out and out false and mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner sought time to file rejoinder affidavit and accordingly the Learned Tribunal vide order 26.05.2017 granted time to the petitioner to rejoinder affidavit as well as to the applicants to file sur-rejoinder affidavit against the rejoinder to be filed by the petitioner. However, no permission was granted to the Respondent No.2 who was appearing in person to file sur-rejoinder. 10. It is stated that the petitioner filed affidavit-in-reply to the reply affidavit filed by the Applicants. In the affidavit, the petitioner has contended that Rule 53 of the NCLT Rules, 2016 envisages the substitution of legal representatives of deceased person who is a party to proceeding before the Tribunal and thus for an application of substitution under Rule 53 one need not be a shareholder as required under Section 241 of the Companies Act, 2013, Further, the nomination was sent to the registered office of Applicant's company registered post on 05.11.2014 and to the Register of companies through registered post on 07.11.2014 and acknowledgement receipt vide letter dated 11.11.2014 issued by the Applicant's company was sent through speed post and therefore is no fraud committed. It was also con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of I.A.06/2017, the Respondent No.2 prayed before the court to allow him to file sur-rejoinder and to that effect he has also filed an application being registered as I.A.36/2017 seeking leave to file sur-rejoinder against the rejoinder filed by the petitioner in I.A.06/2017 as applicant, but the learned Tribunal heard the application being registered as I.A.06/2017 instead of I.A.36/2017, although the learned Tribunal ought to have heard I.A.36/2017 before deciding I.A.06/2017, so as to give an opportunity to make his stand on the rejoinder filed by the petitioner. Be it mentioned herein that there were certain new facts which the respondent No.2 wanted to bring on record in order to counter the new facts brought in the reply filed by the petitioner. 14. It is stated that meanwhile, at the instance of the parties, the matter was referred to the mediator for exploring the possibilities of amicable settlement but mediation failed and the matter was again taken up by the court on 05.01.2018. On 05.01.2018, although both the applications being I.A.06/2017 and I.A.36/2017 along with other application were on board. But it was brought to the notice of the applicants that orders in I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing both the parties, passed Judgment and Order dated 22.01.2019 wherein the Hon'ble High Court Court dismissed the revision petition filed by the applicants herein by declining to interfere with the findings of the Hon'ble Tribunal regarding substitution of the Petitioner under Rule 53, although liberty has been granted to the Applicants to approach this Hon'ble Tribunal for raising the question of maintainability or locus standi of the petitioner in the original application CP No.80/2000. The Hon'ble Gauhati High Court categorically left it open for the Hon'ble Tribunal to decide the Locus standi of the petitioner in the main proceeding. 19. It is stated that the applicants herein that the issue raised by them with regard to the Locus Standi of the petitioner in the original application CP No.80/2000 is the core issue to be decided before the hearing of CP No.80/2000. In as much as Section 241 of the Companies Act, 2013 which is similar to Section 397 and 398 of the Companies Act, 1956, clearly provides power to deal with application for grievances regarding mismanagement and oppression by any member of the company and Section 399 of the Companies Act, 1956 is similar to Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or more persons jointly, they shall be counted only as one member. (2) Where any members of a company are entitled to make an application under subsection (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. 21. It is stated that in view of the above mandate and eligibility specified in Section 399 of the Companies Act, 1956 vis-à-vis Section 244 of the Companies Act, 2013, the petitioner despite being substituted under Rule 53 of the NCLT, Rules 2016 in place of his deceased father in a proceeding under Section 397/398 of the Companies Act, 1956, does not have the locus standi to continue the proceeding, as undisputedly he is not a member of the company. Moreover, Rule 53 of the NCLT, Rules 2016 cannot supersede the prescription of Section 399 of the Companies Act, 1956 or Section 244 of the Companies Act, 2013. 22. It is stated by the applicants that admittedly, the petitioner/Respondent no.1 is not a 'member' as defined under Section 2(55) of the Companies Act, 2013 as well as well as under Section 41 of the Companies Act, 1956 and therefore, is incompetent to prosecute t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) Again in the year 2019 this Hon'ble NCLT again provided opportunity to amicably settle all issues and disputes. I again reiterated my earlier proposal and added a part that in case they are not willing to sale their shareholdings they may purchase mine at fair price but again they rejected my proposal. (iii) In appreciation of grievances contained in Company Petition NO.80/2000 it is crystal clear that no grievance exist as to date in view that Petitioner's representative i.e. his son was offered position of Director in the Company and Annual Returns are uptodate, AGMs are held regularly. The Accounts are though not complete because accounts of Bogidhola T.E. and Kalyani T.E. are not with me and despite several demands have not been given. (iv) Shri Sajay Singh, Shri Abhay Kumar Singh and my younger brothers ran down the properties namely Bogidhola T.E. & Kalyani T.E. to the grounds. Two lively tea estates were mismanaged and closed down. (v) If interest of the Company is paramount to Shri Sajay Kumar Singh and Shri Abhay Kumar Singh they should join the Board as Directors, return Company monies to its account and make available all accounts so that pending accounts be com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectors of the Company during their lifetime. After their death, Late Man Kumary Roy was appointed as Managing Director of the R-1 company and her son Late S. N. Roy was entrusted to manage the affairs of the R-1 company. And, later on after demise of Man Kumari Roy, S. N. Roy became the Managing Director and after the death of Late S. N. Roy, Shri K. K. Roy, the main Petitioner herein, was appointed as the M. D. in 1976. 7. In the year 1986, Petitioner was removed from the board and the board emerged as under- i) Pravir Kumar Roy (Respondent No.2, S/o Late S. N. Roy) ii) Smt. Prem Kumari Roy (Respondent No.4, W/o Late S. N. Roy) iii) Shri Tarun Kumar Roy (Respondent No.3) iv) Shri Pramod Kumar Roy (survived by his wife Smt. Prakashwati Devi). 8. Shri Pramod Kumar Roy passed away in the year 1995 and lastly, since, Respondent No.3 namely Tarun Kumar Roy proposed to reconstitute the Board of the R-1 by inducting new members for transparent and better management and for overall growth, he was removed from the Board of Directors, by R-2 & R-4 taking shelter of Sec.283 (1) (g) of Companies Act, 1956. Thus with effect from 5.10.2010, the present board consists of such membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and in terms of no. of shares, to 270 shares. 13. It is imperative to note that, Respondent NO.2, namely Pravir Kumar Roy and Respondent No.4, namely, Prem Kumari Roy are on the board of the Respondent No.1 company, an, have been allotting shares to themselves only and further depriving other branches of the family from enjoying the fruits of the family company. 14. It is submitted that while the matter is pending for adjudication, and earlier allotment of 60 shares was under challenge, the 150 additional shares have been allotted on 25.03.2010, without the knowledge, consent of the Petitioner and the other branches of the family, and without making any offer to them. In all fairness, those who were party before the Hon'ble forum could have been given an opportunity either directly or through their counsel to participate in the further issue of capital. Therefore, it is absolutely clear that, the Respondent No.2 and 4 have neither any respect whatsoever, nor, decency towards this Hon'ble forum, nor any fear of the rule of law. They have committed a grave act of oppression. 15. It is respectfully submitted that on several occasions the main Petitioner agitated before the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verified by the Branch Manager, State Bank of India, Chabua Branch under his seal and signature. 20. On the death of his father, Kamakhya Kr. Roy, the present Petitioner, Sajay Kumar Singh applied to both the Companies for transmission of shares to his name. The shares of Premier Ltd. were transmitted in a routine manner. Whereas, in the case of R-1, the shares have not been transmitted till date. Instead a fabricated dispute has been created by R-2 and R-4 on the basis of lies to deny the Petitioner his rightful share in the R-1 Company. 21. In view of the above submissions, it is most respectfully submitted that the Hon'ble Court may kindly consider the same and constitute a new Board of the R-1 company by giving equal representation to all the branches. The shares of the deceased members may be transferred to their respective legal heirs and also set aside the allotment of illegal shares which is bad in law and or take action in the interest of fair play, equity and justice. 26. It is observed that:- 26.1 The said Company was formed on 07.07.1942 by Late Debraj Roy to take over the business and private properties established by him as promoters and subscribers, being Debr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Subsequently, the matter has been transferred to NCLT, Guwahati Bench during 2016 on closure of CLB on 01.06.2016. Much water has been flown during the last 20 years in the process of several IAs and the proceedings of the main petition is yet to be completed. Both the parties had agreed to go for mutual settlement and a Mediation Committee was constituted by this Bench vide Order dated 18.09.2017 and the Mediation Committee was headed by Hon'ble Mr. Justice P. G. Agarwal, retired Judge of the Hon'ble Gauhati High Court, but the mediation failed for certain reasons. 26.7 Earlier, this Bench has passed the order on 22.12.2017 in IA No.06/2017 allowing the prayer of the Petitioner, Shri Sajay Singh to substitute his name in place of his father as Petitioner. Subsequently, the Petitioner had filed Writ Petition (Civil) before the Hon'ble High Court challenging the order of the Tribunal and the Hon'ble High Court had declined to interfere with the findings of this Tribunal but liberty was given to the petitioner to approach this Tribunal for raising the question of maintainability or locus standi of the petitioner. 26.8 The Petitioner has also filed an affidavit admitting that Media ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompanies Ac, 1956. This Tribunal is also having power to waive all or any of the requirements specified in Clause (a) or Clause (b) of Section 244 of the Companies Act to maintain an application under the above Section.
2. Hence, prayers made in the IA No.73/2019 to declare the petitioner that he has no locus standi to maintain TP No.26/2016 (CP No.80/2000) is rejected.
3. We are making it clear that we are not touching the issue of percentage of shareholdings in the Respondent Company or number of shares held by the Petitioner or by the Respondents at this stage. These matters shall be heard during the proceedings of the Main Petition.
4. We are also making it clear that any further attempt to delay the proceedings of the original Company Petition by filing frivolous IAs shall be dismissed with heavy cost and penalty.
5. Registry is directed to list the Original Company Petition (CP No.80/2000) TP No.26/GB/2016 on 23.03.2021 along with other IAs in the Company Petition, if any.
6. Since IA No.73/2019 is disposed of, the IA No.04/2020 in T.P. No.26/GB/2016 filed by the applicant for taking up IA No.73 of 2019 first, has become infructuous. X X X X Extracts X X X X X X X X Extracts X X X X
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