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TMI Blog2023 (2) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent / Company', at Chennai and sent the 'Appellant', to India, to spearhead the 'Operations', of the '1st Respondent / Company'. 3. The 'Appellant', was appointed as the '1st Respondent / Company's Managing Director', on 01.05.2015, as per 'Contract of Employment' dated 01.04.2015. Later, he was appointed as an 'Additional Director', in the 'Board of Directors', in the '1st Respondent / Company', as per 'Board Resolution', dated 15.07.2015. Although, the 'Appellant', was appointed as the 'Managing Director', of the '1st Respondent / Company', and a 'Director', in the 'Board of Directors' of the 'Company', he was required to work under, and 'Report', before a 'Reporting Manager, who in turn, report to the '2nd and 3rd Respondents'. The '6th Respondent', was the 'Appellant's Reporting Manager', at the time of his 'Appointment', in the '1st Respondent / Company'. 4. The 'Appellant', while working at the '1st Respondent / Company', noticed that the 'Company', had entered into contracts with M/s. Positive Moves (India) Consulting Pvt. Ltd. and M/s. InTandem Advisors LLP through some of the 'Directors' in the 'Board of Directors' of the 'Company', including the '6th Respondent' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,511. 10. Because of the same, the '1st Respondent / Company', had 'evaded Taxes in India', to the tune of 'several Crores of Rupees', amounting to 'Commission of several Offences', under the 'Tax Laws of India'. 11. The stand of the Appellant is that, the '1st Respondent / Company', had entered into a 'Service Agreement' dated 01.10.2018, with one of the 'Subsidiaries' of the 3rd Respondent at Singapore, referred to as 'Wirecard Singapore, for receiving certain services at the cost EUROS 5,000,000. But, this 'Agreement', was then cancelled through execution of an 'undated Cancellation of Intercompany Service Agreement'. 12. Inspite of the same, the services sought from Wirecard Singapore, under the 'Service Agreement', were being provided to the '1st Respondent' by Wirecard Singapore, without receiving any amounts. Indeed, the receipt of such services are taxable, under the Central Goods and Services Act, 2017. But, no taxes were paid by the '1st Respondent / Company', towards the same. 13. The Appellant, was used as the face of the 1st Respondent / Company, so that he could fastened with any liabilities which may arise against the 1st Respondent. When, he realised this, bega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and include person not only member of the company in strict sense but, also person who "bears the character of a member" or "have substantial interest in the internal affairs of the company ..." 28... If they claim status as Directors of the Company, they carry all trappings / characters of a member of the Company. So, to protect the interest of the Company, the remedy for them is under Section 242 of the Companies Act, 2013. Either way the Civil Court has no jurisdiction to entertain the subject matter of the suit. In the light of Section 430 of the Companies Act, 2013, and the alternate redressal forums being adequately provided under the Act, the plaint is not maintainable." 17. The Appellant's plea is that, since he was still a 'Director', in the 'Board of Directors' of the '1st Respondent / Company', at that time, he filed the 'Company Petition' and 'Application / Petition', he was entitled to approach the 'Tribunal' ('National Company Law Tribunal'), for seeking remedies, as per Section 241 and 242 of the Companies Act, 2013. 18. In this connection, the Appellant, points out that the '1st Respondent / Company', had removed him from the 'Post of Director', in the 'Board o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant, the Learned Counsel points out that the decision in V.M. Rao and Ors. v. Rajeshwari Ramakrishnan & Ors. (1985) SCC Online Mad. 151, in the case of Cyrus Investments Pvt. Ltd. & Anr. V. Tata Sons Ltd. & Ors., vide Company Appeal (AT) Nos. 133 and 139 of 2017, are not applicable to the facts of the present case and this important fact, was failed to be appreciated by the 'Tribunal', at the time of passing the 'impugned order'. 26. While rounding up, the Learned Counsel for the Appellant contends that the 'impugned order' dated 16.02.2022, passed by the 'National Company Law Tribunal', Division Bench - I, Chennai, in IA/644/2020 in CP/289/2020, is contrary to the facts of the instant case and 'Law', and hence, liable to be set aside by this 'Tribunal', to promote 'substantial cause of justice'. Member: 27. As per definition, 2 (55) of the Companies Act, 2013 (like Section 41 of the Companies Act, 1956, 'any person', can become a 'member' of a 'company'. In reality, the 'Companies Act', does not define the term 'person'. But, as per the definition given in the 'General Clauses Act, 1897', 'a person', shall include, 'any company' or 'association' or 'a body of individ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 of the Companies Act, 2013, the 'Tribunal', in a given case, is to see (a) what is the Petitioner's interest in a Company - whether it is 'sizeable' / 'substantial' (b) whether Section 241 is the correct jurisdiction to deal with the issues made mention of, in the main Petition (c) whether the case / cause projected, is of 'primordial importance', to the 'Petitioner(s)' or to any 'class of Members' or to the 'Company', itself, or in 'Public interests', as the case may be. Locus standi: 34. It is incumbent of an 'Applicant / Petitioner', to establish that 'he is a Member of a Company', as per Section 2 (55) of the Companies Act, 2013 (Section 41 of the Companies Act, 1956), and further that, he is eligible to prefer an 'Application' / 'Petition', with the 'criteria' specified in Section 244 of the Companies Act, 2013. 35. The requirement of a 'Share Qualification', is a 'relevant factor', and 'quite material', to maintain a 'Petition', in respect of an 'Oppression' or 'Mismanagement. 36. An 'Individual', whose name, does not 'appear', on the 'Register of Members', is not a 'Member', and has no 'Locus', to 'Prefer' a 'Petition', under Section 244 of the Companies Act, 2013. To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d'. Analysis: 44. According to the Petitioner / Appellant (in CP/289/2020, Filed before the 'Tribunal), he was appointed as 'Managing Director', as per 'Employment Agreement' dated 01.04.2015 and he was appointed as an 'Additional Director', in the 'Board of Directors' of the '1st Respondent / Company', through 'Board Resolution' dated 15.07.2015. He was appointed as 'Managing Director' of the Company, as per 'Resolution' dated 11.01.2017. Later, he was removed from the Post of Managing Director of the Company but was made to continue as a 'Director' of the '1st Respondent / Company', through a 'Board Resolution' dated 13.05.2019. 45. It is the stand of the Petitioner / Appellant that, he had dedicated about 13 years of his life, for the 3rd Respondent and the 1st Respondent / Company, but he was discarded by the 1st Respondent / Company, without any remorse, only for the reason that the Company did not want him to question their suspicious transactions. He had assailed the Termination Order, before the Labour Commissioner, Chennai in TNSE Appeal No. II of 2020, and the same is pending. 46. The 'Appellant' / 'Petitioner', in his CP/289/2020, among other things, had averred that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st Respondent / Company, and to take appropriate actions, against the 1st Respondent / Company (e) issuance of notice to the Registrar of Companies for conducting an investigation into the affairs of the 1st Respondent / Company and to take appropriate actions, against the 1st Respondent / Company (f) in passing an Order of Permanent injunction from restraining the 1st Respondent / Company from removing the Petitioner (Appellant), from the Board of Directors of the 1st Respondent / Company (g) in passing an Order of Permanent Injunction, restraining the 1st Respondent / Company, from taking any adverse actions, against him and / or his wife Mrs. Ying Jin (h) in directing the Respondent Nos. 1 to 6 to pay the costs and expenses, incidental to the Petition. 52. In so far as IA/644/2020 in CP/289/2020 (on the File of the 'National Company Law Tribunal', Division Bench - I, Chennai) is concerned, the 'Petitioner / Appellant', had inter alia mentioned that the '1st Respondent / Company', was involved in grave mismanagement of the Company as well, which are prejudicial to the interests of public, the '1st Respondent / Company', had evaded payment of appropriate taxes, that were due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Meeting' bearing No. 2 / 2020-21, conducted on 28.09.2020, authorizing the '4th Defendant' to do all actions necessary, to give effect to the 'Resolution', passed for the 'removal of the Plaintiff', as null and void and not binding on the 'Plaintiff'. 57. The '1st Respondent / 1st Defendant' ('Company') in its Written Statement, had averred that the 'Plaintiff' ('Petitioner / Appellant' in 'Appeal'), was in employment, as an 'Engineer', with Wirecard Technologies GmBh (another company in the Wirecard Group of Companies), since 1999 and was employed with the '1st Defendant / Company' ('1st Respondent' in Appeal) from 22.04.2015, based on an 'Employment Agreement', entered into with him, by the '1st Defendant' (earlier known as Visa Processing Service (India) Pvt. Ltd.), whereby and whereunder, he was appointed as the 'Managing Director' of the 'Company'. But, he was unable to handle his duties and was constantly stoking conflict and unable to work in tandem with the Global Management, and inspite of the same, he was accommodated by the '1st Defendant' ('1st Respondent'). Also that, he went on to take an unexplained prolonged leave of absence of more than six months from work, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for him, in the Suit. 63. At this juncture, it is not out of place for this 'Tribunal', to make a pertinent mention that the fundamental eligibility criteria, laid down in Section 244 of the Companies Act, 2013, a 'Complainant', must be a 'Member' of a 'Company', in relation to which, the 'Petition', is to be filed. Therefore, it is latently and patently evident that, only a 'Member' of a 'Company', can prefer a 'Petition', in relation to the 'Company'. 64. It cannot be forgotten that a 'Directorial Complaint', cannot be a basis for filing a 'Petition', under Section 241 & 242 of the Companies Act, 2013, as 'complaints', in such a 'Petition', should relate to the 'Rights', in the 'status / capacity' of a 'Member'. 65. In regard to the stand of the 'Appellant' that the CP/289/2020, filed by the 'Appellant' (under Section 241 and 242 of the Companies Act, 2013), before the 'Tribunal', may be converted into a 'Petition', under Section 213 (2) of the Companies Act, 2013, it is relevantly pointed out by this 'Tribunal' that the 'Relief(s)', sought for by the 'Appellant', in the main CP/289/2020, deals with several instances of 'Oppression' and 'Mismanagement', by the '1st Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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