9911796707
TMI Blog2022 (4) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... actionable claims to which Company is or appears to be entitled to and take such steps and measures, as may be necessary, to protect and preserve the properties of the Respondent No. 1 Company and to avoid misuse of its property. List the petition for further orders when the final report received from the Provisional Liquidator - Registry is directed to send a copy of this order to the Petitioner and Respondents as also to the Provisional Liquidator immediately. - CP/34/KOB/2020 - - - Dated:- 16-3-2022 - Ashok Kumar Borah , Member ( J ) And Anil Kumar B. , Member ( T ) For the Appellant : S. Krishnamoorthy , A. S. Dileep , P. Binod , Suseela Dileep and Sudeep Aravind Paniker , Advocates For the Respondents : Yogindunath S. and Gokul R. I. , Advocates ORDER Ashok Kumar Borah , Member ( J ) 1. The present Company Petition bearing No. CP/34/KOB/2020 has been filed under Section 241, 242, 244, 246 and 272 of the Companies Act, 2013, by Mr. Tahil Lalchand Chulani (hereinafter called as Petitioner ) against 1) M/s. Venad Food Processing and Exports Private Limited, 2) Mr. T.V. Karunakaran, 3) Mr. A.K. Sajeev, 4) Mr. Francis Wilson, (hereinafter called as Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rying on the business of manufacture and sale of SRL Curry powder. The original promoters of the company were Respondent 2 3 along with one Mr. Rajeev and one Mr. Madhukumar, who were also the first directors of the company. Since the 1st Respondent Company was facing shortage of funds, the company through its directors had approached the Petitioner, who was involved in the business of export of curry powder from India, to invest in the 1st Respondent Company on the assurance that he would be appointed as director of the company and would have a say in the management of the 1st Respondent Company. On the basis of this assurance, the petitioner had initially advanced a sum of ₹ 10 lakh to the Company towards equity share capital and loan and the Petitioner was appointed as director in the company, based on his investment. 3. It is stated that the Petitioner had further extended an unsecured loan of ₹ 50 lakh to the Company on the assurance that the loan would be repaid on demand and he would be a director of the company until his entire investment is repaid, The Petitioner had further advanced a sum of ₹ 4 lakh to the 1st Respondent Company for purchase of mac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d off out of the company by Respondents 2 to 4 and erstwhile directors of the 1st Respondent Company. It is stated that due to the serious mismanagement and bad governance practices of the majority shareholders, the company has been continuously making losses from the time of incorporation. In gross violation of the provisions of the articles of the company, the majority shareholders have not been retiring by rotation at the Annual General Meetings of the company. 6. It is stated that in spite of the precarious financial state of the company, the directors of the 1st Respondent Company have been drawing huge sums as remuneration without necessary approvals of the Board or the company in general meeting. Despite the company incurring losses of more than ₹ 18 lakh during the year 2018-2019, the directors have drawn more than ₹ 4 lakh from the company during the next financial year. It is stated that the 1st Respondent Company has been closed for more than 7 months and no maintenance is being carried out for machinery and other assets of the 1st Respondent Company. It is further stated that the Directors of the 1st Respondent Company have passed a Resolution at the Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Ordinary General Meeting as mandated under the Act. On receipt of the notice of Extra Ordinary General Meeting, the petitioner raised objections to the same. In response the 4th Respondent, who has given notice of the resolution to remove the petitioner has submitted a statement dated 05-08-2020, giving the reasons for proposing the resolution. According to this statement, the 4th Respondent claims that he has proposed the resolution due to the Petitioner's non-cooperation and negative approach. However, the contention of the Petitioner is that he has been attending all meetings of the 1st Respondent Company either personally or through his representative. There is no record made at any proceeding of the Board or of the general meeting recording any such non-cooperation or negative comments by the petitioner. It is the rights of the petitioner to record his dissent to any proposal which is not in the interest of the company and such dissenting opinion cannot be a reason for removal of the director. In case the majority shareholders do not agree with the opinion of the petitioner, they have the liberty to take decisions based on the majority view and cannot remove a director o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Petitioner put the Respondents in a corner. After this unfortunate incident the Petitioner sought return of his full investment of 64 Lakh immediately, when a time the company was struggling to find the working capital. So based on his demand the Respondents decided to go for a bank loan and approached Karur Vysaya Bank in Kasaragod in order to pay back 50 percent of the Petitioner's investment and rest of the funds to utilize the development of the company. For this purpose, the Petitioner appointed POA advocate Mr. Gopinathan from Chennai who met the bank manager and the bank approved a loan of ₹ 1 Crore, but the Petitioner refused to sign any more documents in any banks and that proposal was dropped. 11. It is further stated that Present Managing Director. Mr. Karuna and other director Mr. Wilson also were working abroad and invested more money than the Petitioner for the company and both of them resigned and working with Venad Foods for the last three years without any remuneration. 12. It is stated that the Petitioner has not visited the factory and made any investments to the company since 2015. It is stated that there was a Board of Directors meeting he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper Books of Account as per the provisions of the Companies Act 2013. iv. The Company has not been maintaining Proper Fixed Asset register and is also not maintaining supporting documents for the Fixed assets. v. The company has not been maintaining Statutory Register and Minutes of Board and General Meetings at its registered office as required by the Companies Act 2013. vi. The company has not been maintaining Proper stock Register as required by the Provision of the Act. vii. The management of the Company is carried out by its Board of Directors as specified in the list provided in Annexure I, and the Board was duly constituted. viii. The shareholding pattern of the Company as on 31st March, 2019 is detailed in Annexure II. ix. The amount borrowed by the Company from directors, members, public, financial institutions, banks and others during the period under review is/are within the borrowing limits of Section 180 of the Companies Act, 2013. The breakup of the Company's borrowings as on 31st March, 2019 is as detailed in Annexure III. x. During the period under review, the Company has created the charges on its assets as detailed in Annexu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any is becoming detrimental to the interest of its stakeholders. There is a likelihood of the happening of the event of insolvency. 17. In this respect we have also gone through Section 272 of the Companies Act, 2013 which is quoted hereunder:- Section 272 : - Petition for winding up. (1) Subject to the provisions of this section, a petition to the Tribunal for the winding up of a company shall be presented by-- (a) the company; (b) any creditor or creditors, including any contingent or prospective creditor or creditors; (c) any contributory or contributories; (d) all or any of the persons specified in clauses (a), (b) and (c) together; (e) the Registrar; (f) any person authorised by the Central Government in that behalf; or (g) in a case falling under clause (c) of sub-section (1) of section 271, by the Central Government or a State Government. (2) A secured creditor, the holder of any debentures, whether or not any trustee or trustees have been appointed in respect of such and other like debentures, and the trustee for the holders of debentures shall be deemed to be creditors within the meaning of clause (b) of sub-section (1). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h petition. 18. In order to obtain clarity on this issue, we have also gone through Section 273 of the Companies Act, 2013 which reads as under:- Section 273: Powers of Tribunal. (1) The Tribunal may, on receipt of a petition for winding up under section 272 pass any of the following orders, namely:-- (a) dismiss it, with or without costs; (b) make any interim order as it thinks fit; (c) appoint a provisional liquidator of the company till the making of a winding up order; (d) make an order for the winding up of the company with or without costs; or (e) any other order as it thinks fit: Provided that an order under this sub-section shall be made within ninety days from the date of presentation of the petition: Provided further that before appointing a provisional liquidator under clause (c), the Tribunal shall give notice to the company and afford a reasonable opportunity to it to make its representations, if any, unless for special reasons to be recorded in writing, the Tribunal thinks fit to dispense with such notice: Provided also that the Tribunal shall not refuse to make a winding up order on the ground only that the assets ..... 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