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TMI Blog2021 (5) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... its AGM meeting on 30.09.2012 for the year 2011, wherein Applicant no. 1 was the chairman and under his guidance the final accounts for the FY 2011-2012 were compiled, approved by the board of directors and audited by auditors on 31.08.2012. Though the accounts were ready and AGM was to be convened for the year 2012, the other directors prevented the chairman to convene the meeting for the year 2012. Hence, the audited financial statements for the FY 2011-2012 remained unadopted at any AGM. 2.2. It is submitted by the Applicant that by an alleged board resolution dated 02.05.2013, Respondent No. 2 (hereinafter referred as "R2") was delegated the authority to execute conveyance deeds on behalf of R1 company, whose authority was exercised by Applicant no. 1 being the chairman of the company. However, Applicant no. 1 was unaware of the change in the authority and continued execution of conveyance deeds even after 02.05.2013 till 19.07.2013. Further R2 filed an FIR on 11.12.2014 against the Applicant no. 1 alleging non-deposit of Rs. 134.44 lakhs into R1 company with respect to 17 plots, out of which 5 plots were allegedly sold in 2012-2013 and 12 plots in the year 2013-2014 includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the board of directors did not placed the same before the shareholders and the same was not adopted. It is further submitted that the financial statements for the financial years 2012-2013, 2013-2014, 2014-2015 were not prepared hence they were not adopted at the AGM held on 30.09.2016. Thus, the accounts of 2015-2016 were simply placed at the AGM held on 30.09.2016 with previous year's figures even though those figures were not adopted at any AGM. 2.7. It is submitted that R1 company issued a notice for EGM on 21.04.2017 proposing removal of the Applicant no. 1 from the directorship of R1 company on the ground of the alleged requisition received from the requisite majority, citing reasons of indulging himself in fraudulent activities, using the designation of the chairman/director of the company, not acting reasonable as well as honest, etc. In other words, due to an alleged offence of non-deposit of the sale consideration in respect of 17 plots with R1 company. Further, the authority to execute conveyance deeds by Applicant no. 1 was snatched in May 2013 and accordingly, he was removed from the chairman ship in May 2013. Moreover, an FIR was lodged on 11.12.2014 and accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 10.08.2018. 2.10. It is further submitted that in the meantime, Applicant No. 1 came to know that R1 Company has sold various plots without accounting the same in the books of accounts and some third parties are paying SMC taxes from 2013. 3. Heard both the parties and also seen the record. On perusal of the record, it is found that the Applicant is seeking for recall of the order dated 23.11.2017 passed by this Tribunal. However, before proceeding further, it is pertinent to mention herein that the Applicant had preferred an appeal against the order dated 23.11.2017 before Hon'ble NCLAT, wherein the Hon'ble NCLAT upheld the order so passed by this Tribunal (NCLT). The observations so made by the Hon'ble NCLAT are reproduced herein below for the sake of convenience- "26. The first point raised by the Appellant No. 1 that the Tribunal erred in concluding that the board meeting dated 02.05.2013 was validly held and the authority granted to Appellant No. 1 was validly withdrawn. On this point we have observed from the appeal filed by the Appellant No. 1 at para 7.5 as under: "xxxx This triggered a lot of disputes amongst the directors and the directors were divide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellant is not acceptable. Ongoing through the impugned order which runs into 34 pages approximately, we observe that the company petition has dismissed on various points. The Tribunal has given his findings on each of the points raised by the appellants in the company petition. 28. The other point raised by the Appellant No. 1 is that the Appellant No. 1 was granted authority since 15.12.2009 for execution of conveyance deeds and the said authority was withdrawn by a fake resolution passed on 02.05.2013 without following the procedures of law and tampering with the minutes of Respondent No. 1 company. We observed from the record that proper notice was given to the directors for holding of Board Meeting on 02.05.2013 and the proof of dispatch of the said notice has been placed at Page No. 538 of the Appeal Paper Book. It appears that the Appellant No. 1 chose to remain absent in the Board Meeting held on 02.05.2013 as he was aware that proper procedure of law has been complied with and there is no tampering with the minutes of Respondent No. 1 company. 29. The next point raised by the Appellant No. 1 is that the company approved the accounts for the FY 2015-16 on 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, holding of an EGM on 20.05.2017 without convening a Board Meeting etc. We observe that all the records of the company are available online and the appellant can take the copies from there. As regard the holding of EGM on 20.05.2017 without convening a Board Meeting is concerned, the Tribunal has held as under: "25. A perusal of the material placed on record disclose the following facts. Some of the shareholders gave requisition for removal of Petitioner No. 1 as Director. Board of Directors meeting was held on 17.04.2017 in which meeting it was decided to call for the EOGM on 20.05.2017 for the purpose of considering the removal of Petitioner No. 1 as Director. 26. xxxx Therefore, it is not a case where the Petitioner No. 1 has no knowledge about the Board of Directors Meeting held on 17.04.2017 or EOGM dated 20.05.2017. It is the case of the petitioner that he reached the place of EOGM on 20.05.2017 and gave letter but he left. Therefore, from the facts, it can only be concluded that Petitioner No. 1 has knowledge about the meeting of the Board of Directors and EOGM and also he has submitted his representation, xxxx" From the above it is clear that the appellant No. 1 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement". It is further observed that: "The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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