TMI Blog2004 (5) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... 398, 402 read with Section 111 of the Companies Act 1956, ('the Act') alleging acts of oppression and mismanagement in the affairs of the SMHPL on account of the illegal transfer of the impugned shares in favour of the second respondent, illegal removal of the petitioners 3 4 as directors, thereby disturbing parity maintained among the shareholders, intermittent interference with the day-to-day affairs of the SMHPL, in spite of lawful removal of the second respondent as the Managing Director of the SMHPL, falsification and fabrication of various records of the SMHPL at the instance of the respondents 1 2, prejudicing the interests of the SMHPL as well as the petitioners and seeking the following reliefs: a) to declare that the proceedings of the alleged extraordinary general meeting held on 25.04.2003 are invalid and the resolutions passed thereon are fabricated and therefore null and void; b) to declare that the notice convening the Board meeting purported to have been held on 03.06.2003 is invalid and any resolution proposed thereon is null and void; c) to declare that the notice purporting to convene the extraordinary general meeting on 30.06.2003 is invalid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 20.03.2003; and f) to declare that the first petitioner was validly appointed as the Managing Director of the ACECPL at the Board meeting held on 22.04.2003 and restrain the respondents from interfering with the functioning of the first petitioner as the Managing Director. 3. The petitioners 1, 3 4 and the respondents 2, 3 4 are common in both the petitions. SMHPL and ACECPL are closely held by the family members of the petitioners as well as the respondents. The grievances of the parties and the reliefs sought in both the petitions are substantially the same. The documents produced are common to these petitions. In view of this, both the petitions were heard together and as such are being disposed of by this common order. 4. Shri T.K. Seshadri, learned Counsel appearing for the petitioners, while initiating his arguments, elaborated the background of the SMHPL and ACECPL promoted by the St. Mary's Group, Thiruvalla as private limited companies and their promoters, consisting of five brothers, viz., the first petitioner, the second respondent, T.S. Skaria, T.O. Baby and T.O. Kuriakose, all sons of the late Kuruvila Unnittan. Of these five brothers, T.S. Skaria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... City Union Bank etc. in favour of the various companies and partnership firms of the St. Mary's group are secured by personal guarantee and properties belonging to the members of the five branches. * The categorical admission of the second respondent in his communication dated 15.12.1999 addressed to Kottayam District Co-operative Bank Ltd. that the SMHPL is a member of the St. Mary's group of companies. * The second respondent in his communication dated 22.08.2000 while requesting for credit facility from City Union Bank Ltd., asserted that ACECPL is promoted by the St. Mary's group. Shri T.K. Seshadri, learned Counsel pointed out that the first petitioner, the second respondent and the third respondent, son of late T.S. Skaria are subscribers top the Memorandum of Association, each taking 100 shares of ₹ 10/- each and the first directors of the SMHPL. Thereafter, during October, 2001 the second petitioner belonging to the family of late T.O.Kuriakose, became a shareholder. The shares issued and funded out of the construction business as on 19.10.2001 is as under:- The first petitioner - 3 lakhs The second petitioner - 4 lakhs The second respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken as prima facie evidence to prove the transfer of 2,20,000 shares in favour of the second respondent. Article 13(e) of the Articles of Association of the Company stipulates that all the decisions taken at a meeting of Board must be recorded in a minutes book maintained for the purpose and signed by all the directors present at the meeting. Whereas the minutes of the meeting of the Board of directors held on 17.04.2002 (pages 139 and 140 of the petition) do not contain the signature of the directors present at the meeting of the directors, not meeting the requirement of Article 13(e) and therefore no presumption as envisaged in Section 195 is available. Thus the minutes dated 17.04.2002 are fabricated. If the original minutes of the meeting of the Board of directors dated 17.04.2002 is produced, the resolution in regard to approval of the impugned shares in favour of the second respondent would not be reflected. As the documents are in existence and are in possession of the respondents, there is no need to follow the procedure of giving a notice for production of the documents under Order XI of the Civil Procedure Code or to summon the documents under Order XVI, the CPC as laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. The respondents have in the present case deliberately withheld these documents and therefore, the CLB must make every presumption against them to their disadvantage consistent with the facts, as held by the apex court in Atyam Veerraju v. Pechetti Venkanna - AIR 1966 SC 629. The second respondent in spite of his removal, styling himself as the Managing Director issued a notice dated 26.05.2003, ignoring the petitioners 3 4, being directors for convening a Board meeting on 03.06.2003. By virtue of Section 286, notice of every meeting of the Board of directors of a company must be given in writing to every director, in the absence of which any meeting held by the Board without any such notice would be void. The agenda for the Board meeting did not contain any subject relating to removal of the first petitioner as director of the SMHPL and for convening any extraordinary general meeting of its members: The second respondent had further issued a notice dated 06.06.2003, convening an extraordinary general meeting of shareholders on 30.06.2003 for removal of the first petitioner as director. The notice dated 06.06.2003 is not in accordance with law, especially when, he was not the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 06.06.2003, removing the first petitioner as director of the SMHPL is not valid. The notice dated 06.06.2003 contains explanatory statement under Section 173(2), which is in no way required. With the removal of the petitioners 3 4 and the attempted removal of the first petitioner from the office of directors, the respondents would alone remain as the directors which would constitute an act of oppression, as held in S.T. Ganapathy Mudaliar v. S.G. Pandurangan -(1999) Vol.99 CC 919. The respondents 2 3 are preventing the directors from entering the office premises to carry on their responsibilities as directors; attempting to oust the first petitioners' group from the management with the object of taking over the SMHPL. Thus, conduct of the respondents 2 3 is oppressive to the other shareholders, more so, when the SMHPL has been established as a quasi partnership among the five branches of the family, which would justify winding up of the SMHPL on just and equitable grounds. Under these circumstances, the first petitioner was compelled to file a civil suit in O.S. No. 271/2003 on the file of the Sub Court at Ernakulam for permanent injunction restraining the second respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the majority shareholders as held in Pramod Kumar Mittal v. Andhra Steel Corporation Ltd - (1985) Vol 58 CC 772. Therefore, there is no bar for the petitioners to claim any relief under Section 402 before the CLB and simultaneously enforce their civil rights in the civil courts. The civil court, according to Shri T.K.Seshadri, learned Counsel, can not usurp the powers of a company court, whose jurisdiction springs from an enactment of parliament and adjudge common law rights on a prior consideration, as held in V.M. Rao v. Rajeshwari Ramakrishnan - 89 L. W 243 and therefore sought for appropriate directions to bring to, an end the matters complained of in CP 30/2003. A series of illegal acts following upon one another and the continuous acts on the part of the majority shareholders being conducted in a manner oppressive to some part of the members would constitute acts of oppression warranting appropriate reliefs as held in Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holding Ltd - (1981) Vol. 51 C.C 743. 5. Shri Arvind P. Datar, learned Senior Counsel, while contenting that the charges leveled against the respondents 1 to 3 do not make out any case of opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents 1 2 together 58.67% of shares in the Company. There was no understanding among the shareholders to transfer 1,30,000 shares in favour of the fourth respondent and 60,000 shares to the sixth respondent by the third respondent. The respondents 4 to 6 never held shares in the SMHPL and participated in the business of the SMHPL. There was no agreement to allot or transfer any shares in their favour. They are total strange.rs so far as the SMHPL is concerned. The respondents 4 to 6 neither contended that the shares were to be transferred in their favour nor advanced any theory of parity of shareholding. The petitioners cannot plead for the respondents as held in National Agricultural Cooperative Marketing Federation of India v. Union of India - (2003) S SCC 23. The petitioners are claiming a fictitious and illegal transfer in favour of the respondents 4 to 6 with a malafide object of manipulating the majority in the SMHPL. Thus, there was no agreement to allot 3,00,000 shares to each of the five families, maintaining parity of shareholding among themselves. Shri Datar, learned Senior Counsel, while elaborating a spate of litigations both civil and criminal, initiated b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners 3 4 already ceased to be the directors at the extraordinary general meeting held on 25.04.2003. Therefore, any resolution passed at the Board meeting held on 03.06.2003, after due notice to the existing directors cannot be challenged for want of notice to the petitioners 3 4. The petitioners, therefore, cannot seek for any declaration that the notice dated 26.05.2003 convening the Board meeting held on 03.06.2003 and the resolution passed at such Board meeting are null and void and accordingly the prayer made under para 8 (b) cannot be granted. Shri Datar, learned Senior Counsel, while referring to the notice dated 06.06.2003 issued by the second respondent convening the extraordinary general meeting held on 30.06.2003 to remove the first petitioner from the post of Managing Director, contended that any such notice issued by the SMHPL, does not require any special notice, us contemplated in Sub-section (2) of Section 284. According to learned Senior Counsel, a combined reading of Sub-sections (2) (3) of Section 284 emphasises the requirement of a special notice of any resolution to remove a director, when such a resolution is proposed by a shareholder and not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners have neither challenged the impugned transfer nor questioned disparity in shareholding in any of the civil suits filed by them against the respondents. Learned Senior Counsel further pointed out that the minutes of the meeting of the directors held on 17.04.2002 approving the impugned transfer not having been signed by all the directors present at the meeting in accordance with Article 13(e) do not become invalid, especially when the transfer was duly registered in due compliance of the formalities prescribed under Section 108 of the Act. Therefore, the transfer of 2,20,000 shares in favour of the second respondent cannot be declared as null and void, as sought in para 8 (d). Consequently, there is no justification to rectify the register of members in respect of these shares in para 8 (e). Learned Senior Counsel contended that the settled principle of law is that when a person seeks equity, he must come clean hands. Otherwise he cannot seek any remedy in equity, as held in Atmaram Modi v. ECL Agrotech Ltd. - (1999) 98 CC 463. The petitioners having approached the CLB with unclean hands, no reliefs must be granted and therefore sought for dismissal of the company petition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erous in a private company and therefore the courts have applied the quasi-partnership theory in such cases in the past and have granted remedy if the relationship is sought to be disturbed. The petitioners are therefore entitled for appropriate reliefs at the hands of the CLB. 7. Shri Y.T. Aravind Gosh, Counsel, appearing for the respondents 5 6 adopted the arguments advanced on behalf of the petitioners. 8. Shri. T.K. Seshadri learned Counsel, while dealing with CP 33/2003 pointed out that the petitioners and respondents 2 3 representing each of the five branches of the family are subscribers to the Memorandum of Association of the ACECPL, each taking 1000 shares of ₹ 10/- each and the first directors. When the respondents started acting against the interest of the ACECPL as well as the other group firms and companies, by diverting the business of M/s Tranvancore Bankers through a new firm started independently under the same name and style, the first petitioner by a letter dated 01.03.2003 requested the second respondent, the then Managing Director to convene a meeting of the Board of directors to remove the second respondent from the post of Managing Director an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld in Parmeshwari Prasad Gupta v. Union of India - (1974) Vol. 44 CC. 1. The second respondent has not produced any document before the CLB establishing the validity of the Board meetings, wherein the impugned shares were allotted and the additional directors were said to be appointed, At the same time, the second respondent filed counter affidavit in C.M.A No 16/2003 on the file of Sub Judge Court, Thiruvalla affirming that all records in respect of the appointment of the additional directors at the meeting held on 14.03.2003 were already produced before the CLB in CP 33/2003. Thus, the stand taken by the second respondent before the Sub Court, Thiruvalla is absolutely false. Inspite of the notice dated 04.08.2003, calling upon the respondents to establish inter-alia service of notice for the Board meetings said to have been held on 15.03.2003 and 20.03.2003, the respondents failed to produce any document, in which case adverse interference must be drawn against the respondents and Shri T.K. Seshadri, learned Counsel reiterated his arguments made in CP 33/2003 in this behalf and pointed out that the respondents in para 47 at page 24 of the counter specifically admitted that no Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posing dated 05.03.2003, yet, the order does not discuss about the said certificate of posting at all. Moreover, copy of the certificate of posting (pages 98 99 of vol. C-9 filed by the respondents) is not a certified copy of the certificate produced before the civil Court in O.S. No. 251/2003. The said certificate of posting neither finds place in counter-statement filed by the respondents. Therefore, it cannot be presumed that any Board meeting was held on 14.03.2003 and the alleged Board meeting on 14.03.2003 is a bogus one. Furthermore, there is no evidence to show that shares were offered to the petitioners, before increasing the share capital to meet the statutory requirement of Section 3 (3) of the Act and for refusal of the petitioners to take shares on account of their plan to form a separate construction company for themselves. Section 3 (3) came into effect from 13.12.2000. in which case, the ACECPL ought to have enhanced its paid-up capital to one lakh rupees within a period of two years from such commencement, failing which the ACECPL shall be deemed to be a defunct Company. The impugned allotments were admittedly made after expiry of the prescribed period and the RO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... straining the first petitioner from representing as Managing Director of the ACECPL and executing any contract with Kerala Water Authority is considering hardship, thereby the ACECPL is likely to loose the benefit of the contract. The respondents are attempting to bring about material charges in the management by alteration of the Board of directors and the ownership in shareholding, which are detrimental to the interests of the shareholders of the ACECPL. Under these circumstances, the petitioners are seeking comprehensive reliefs for restoration of parity in shareholding and management among the live branches of the family and for declaration that the resolutions passed at the Board meetings of 15.03.2003 and 20.03.2003 are null and void and non-est. In the meanwhile, the second respondent had caused a notice dated 26.05.2003 convening it meeting of the Board of directors on 03.06.2003, to remove the first petitioner from the office of director of the ACECPL, which was averted with the interference of the CLB. The agenda enclosed to the notice dated 26.05.2003 did not contain any subject in regard to removal of directors. By virtue of Section 284 read with Section 190, special no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection in the name of the ACECPL without knowledge of the second respondent, being the Managing Director as borne out by the correspondence made between the first petitioner and the ROC, (Pages 91-96 of vol.M-3 filed by the respondents), showing the conduct of the first petitioner. The first petitioner stealthily withdrew an aggregate sum of ₹ 5 lakhs on 30.04.2003 06.05.2003, after becoming the Managing Director from the Company account maintained with City Union Bank, Thiruvalla (Page 79 of vol.M-13 filed by petitioners) thereby increasing the liability of the ACECPL. According to Shri Datar, learned Senior counsel, the notice was sent on 05.03.2003 for the Board meeting held on 15.03.2003 under the certificate of posting being exhibit A- 13 produced in I.A. No. 1334/2003 in O.S. No. 251/20003 on the file of the District Munsiff Court, Thiruvalla and therefore the proceedings of the Board meeting held on 15.03.2003 cannot be declared as invalid. However, no Board meeting was held on 20.03.2003, but the new directors assumed charge on 20.03.2003 and therefore, the relief claimed under para 8 (a) can not be granted. Shri Datar, learned Senior Counsel, while referring to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valla, which is pending for adjudication, and therefore, the prayer made under para 8 (f) for declaration that the first petitioner is validly appointed Managing Director of the ACECPL can not be granted in the present proceedings. After removing the second respondent from the post of Managing Director, the petitioners have removed the records of the ACECPL from the registered office misusing their position as directors. The relationship between the parties became strained as early as in March 2003 resulting in withdrawal of the power of attorney dated 01.04,1996 given in favour of the second respondent by the partners of M/s T.O. Abraham and Company, including the petitioners 1, 3 4 and amendment of the partnership deed of the said firm preventing the second respondent to collect any money from Kerala Water Authority on behalf of the firm. Though the partnership deed was said to have been amended, as on 31.03.2003, when the partners wrote a letter to Kerala Water Authority (Page 96 of vol.C-9 filed by respondents), requesting the authority not to disburse any payment to the second respondent, the deed was in fact amended only on 22.04.2003. The first petitioner in his reply d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the expiry date and obtained a restraint order against Kerala Water Authority from cancelling the work order in the interest of the ACECPL. The properties belonging to the five branches are offered as security for the credit facilities extended by City Union Bank, as borne out by a legal notice dated 24.12.2003 (Page 68 of Vol.IV filed by petitioners) recalling the dues, in respect of which recovery proceedings have already been initiated before the Debt Recovery Tribunal. The first petitioner withdrew an aggregate sum of ₹ 5 Lakhs in April 2003 from the ACECPL account with City Union Bank Ltd., for payment of salary to the staff members and balance of ₹ 3,37,200/- was remitted back on to the Bank account as, borne out by the statement of account furnished by the Bank (Page 79 of vol.M-13 filed by respondents); The observation of the District Munsiff, Thiruvalla in I.A. No. 1334/2003 in O.S. No. 251/2003 to that the effect the certificate of posting dated 05,03.2003 does not contain proper seal from the postal authorities cannot impugn the conduct of the petitioners, especially when the said order is under challenge before the appellate Court. Thus the petitioners n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to the Memorandum and Articles of Association became the first directors of the SMHPL. At present the SMHPL is, engaged in the business of hotel project at Kottayam under the name and style of THE LAKE VILLAGE and WINDSOR CASTLE . The second respondent, in his capacity as the Managing Director of the SMHPL by a communication dated 15.12.1999 (pages 17-21 of Vol. III by petitioners), while seeking financial assistance for the Resort Project LAKE FIELD and WINDSOR CASTLE Hotel project from Kottayam District Co-Operative Bank Ltd., categorically stated that the SMHPL is a member in the St. Mary's Group of Companies. The brochure brought out by M/s T.O.Abraham And Company (page 40 of Vol. III filed by petitioners), while giving an account of associate Companies, included the SMPHL under the umbrella of the St. Mary's group. The credit facilities extended to the SMHPL by State Bank of Travancore, have been secured inter-alia, by the personal guarantee and properties of the second petitioner, belonging to T.O. Kuriakose, as borne out the loan sanction letter dated 30.05,2002 of SET (page 48 of Vol. M-2 filed by respondents). The second respondent in his capacity as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner and the respondents 2 3. Even at this point of time, no shares were found to be allotted in favour of the family members belonging to the late T.O. Baby. There is nothing on record to establish that the entire share capital of the SMPHL was met from the construction business of the family as pleaded in para 6.4 at page 7 of the CP 30/2003 or profits of the business have been distributed among all the five branches. At this juncture, it is not irrelevant to make a reference to the report of the Registrar of Companies, Cochin dated 10/14.10.2003 made pursuant to serving of copy of the company petition by S/Shri Seshadri and Bhaskar, Advocates on record for the petitioners, under Regulation 14(3) of the Company Law Board Regulations, 1991. The ROC, while furnishing a brief history of the SMHPL and para-wise comments in respect of the averments contained in the CP 30/2003 reported on the further issue of shares by the SMHPL as under :- A further issue of shares was made as per the resolution passed in the 4th Annual General Meeting of the company held on 29.09.2000. The issues of shares is as under: - T.O. Abraham 2,99,900 shares T.O. Aleyas 2,92,900 shares Bin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the second respondent is duly ratified by the members, the resolution of the Board of directors at the meeting held on 17.04.2002 in relation to the purported transfer of 2,20,000 shares can neither be implemented nor acted upon by the concerned parties and therefore these shares shall remain with the second petitioner. The remaining resolutions passed at the Board meeting held, on 17.04.2002 are admitted by both the groups and therefore binding on the parties. It is on record that the petitioners through their Counsel issued a notice dated 04.08.2003 calling upon the respondents 2 3 to produce following documents:- 1. Minutes Book Original a) Board of Directors b) General Body - Minutes contain signature of Directors / Shareholders whoare present at the meeting. 2. Evidence for valuable consideration for the alleged purchase of 2,20,000 shares by 2nd Respondent 3. Evidence of service of lodgement of Transfer for the alleged share transfer 4. Evidence for notice for alleged EGM dated 25.04.2003 5. Original Share Certificate for the alleged 2,20,000 shares The respondents neither produced nor explained custody of the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner in favour of the fourth petitioner, both belonging to late T.O. Kuriakose branch. The admitted transfers covered by the Board resolution dated 17,04.2002, viz. 1,70,000 shares in favour of the fourth petitioner and 1,40,000 shares in favour of the third petitioner, must in my view, pursuant to some understanding between the transferors and transferees, in the absence of any proof furnished by the respondents. In spite of the purported intention among the parties, either the fourth respondent or the fifth respondent or the sixth respondent did not even choose to file any affidavit claiming shares from the second petitioner and the third respondent and therefore, these shares, viz. 1 lakh shares said to be intended for the respondents 5 6 from the second petitioner and 1.90 lakh shares meant for the respondents 4 and 6 from the third respondent should belong to the second petitioner and the third respondent respectively. As a consequence of my findings, the shareholding of the parties must be as follows: - The first petitioner 3 lakhs The second petitioner 2.30 lakhs The third petitioner 1.40 lakhs The fourth petitioner 1.70 lakhs The second respondent 3 lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not liable to retire by rotation during the period he holds the said office. However, the Board of directors is empowered to remove the Managing Director, before the expiry of the appointed period. Admittedly the second respondent was Managing Director of the SMHPL at the relevant point of time. At the extraordinary general meeting said to have been held on 25.04.2003, attended only by the Managing Director and the third respondent, it was resolved that the Managing Director shall not be liable to retire by rotation during the period he holds that office, thereby taking away the power of the Board of directors to remove the Managing Director during currency of his office. This amendment goes against the collective wisdom of the Board of directors in protecting the interest of the SMHPL. In the process, the second respondent attempted to ensure that he would not be removed from the office of the Managing Director by the Board of directors of the SMHPL, before completion of his term of office. The respondents have not established any benefit derived by the SMHPL on account of the amendment of Article 12(a) of Articles of Association of the Company. This amendment in my view is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alf of either of the parties in regard to validity of notices for removal of the first petitioner from the post of director are not considered in the present proceedings. The second respondent by convening the Board meeting as well as the extraordinary general meeting attempted to remove the first petitioner from the office of the director of the SMPHL and already removed the petitioners 3 4 form the post of the directors. By means of this act, the first petitioner who was the subscriber to the Memorandum of Association and the first director of the SMHPL was sought to be removed. With removal of the petitioners 1, 3 4 from the office of the directors, there would be no representation from the petitioners' group, which hold majority shares, in my view is oppressive and detrimental to the interest of the petitioners, more so when the SMHPL is a closely held family company. Therefore, the attempted removal of the first petitioner from the post of director, irrespective of the validity of the notices of 26.05.2003 and 06.06.2003 convening the Board meeting on 03.06.2003 and extraordinary general meeting on 30.06.2003 would constitute an act of oppression in the affairs of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminal proceedings initiated against each other and various affidavits and statements filed by the parties before this Bench would conclusively establish that trust and confidence between them no more exist. As a matter of fact, when I sought to ascertain during the hearing whether there could be any possibility of amicable settlement of disputes among the parties, being close relatives, no such settlement could be reached. The SMHPL, in my view cannot at all function smoothly, considering mounting litigations among the parties, as well as irreconcilable differences between major group of shareholders and if these warring group continue to hold shares. In an effort to destroy each other, the parties will not only destroy themselves, but also the SMHPL. The only course by which the interests of the SMHPL and the shareholders could be protected is that there should be parting of ways either by directing the sale of shares held by one group to the other or by division of assets of the SMHPL between the two groups in accordance with their percentage of shareholding. In the present case, I find that the SMHPL has two distinct businesses - One is running of a hotel under the name and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shareholding in the ACECPL among five branches, it is found that the shareholders belonging to the five branches held 1000 shares each maintaining parity till the allotment of the impugned shares made in March, 2003 in favour of respondents 2 to 5. Similarly, parity was maintained on the Board represented by members from each of the five branches till the appointment of the respondents 4 5. It is observed' from Form No.2 (pages 86 to 89 of CP 33/2003) filed by the second respondent with the Registrar of Companies on 17.03.2003 that 1,000 equity shares of ₹ 10/- each were allotted on 15.03.2003 in favour of the fourth respondent and 6,000 shares in favour of the second respondent. Similarly, Form No.2 (pages 92 to 94 of petition) filed by the second respondent with Registrar of Companies on 25.03.2003 reveals that 2,000 shares were allotted in favour of the third respondent and 1,000 shares in favour of the fifth respondent on 15.03.2003. Thus, no shares were allotted in favour of the petitioners' group. At this juncture, the communication dated 07.05.2003 of the respondents 2, 3 5 addressed to the Registrar of Companies, Cochin (pages 106-108 of vol.M-1 filed by p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cates that the respondents 4 5 were appointed as additional directors by the resolution dated 14.03.2003. Thus, there is no coherence or transparency in the appointment of directors. Moreover, while the Board has been represented by the members belonging to five branches since the inception of the ACECPL, the appointment of respondents 4 5 representing the respondents' group in exclusion of the petitioners' group is in no way justified. It is on record that the first petitioner had issued a notice dated 01.03.2003 pursuant to Article 13(c) (page 99 of the petition) calling upon the second respondent to convene a Board meeting and upon his failure to convene a Board meeting within the specified period, the first petitioner issued a notice dated 11.04.2003 (page 101 of the petition) convening a meeting of the Board of directors on 22.04.2003, wherein the second respondent was removed from the post of the Managing Director and the first petitioner was appointed as Managing Director of the ACECPL. It is abundantly clear that these notices were signed only by the first petitioner. Whereas it is found from the communication dated 04.06,2003 of the first petitioner addressed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aging Director of the ACECPL. The irreconcilable and deadly relationship between the parties as borne out by the reply statement filed on behalf of the petitioners, the relevant portion of which reading as under The second respondent forcibly taken away two vehicles used by the petitioners with the help of goondas and the Thiruvalla Police registered a complaint under Section 380 of IPC and now the police authorities have recovered the vehicles and produced before the Magistrate for release. In fact recently, Mr. T.O. Abraham Baby was assaulted by the gang engaged by the second respondent under his leadership and the said Mr. T.O. Abraham Baby sustained fracture and admitted to hospital and the criminal action has been taken cognizance by the police authorities and action is being initiated against the second respondent. Similarly the second respondent assaulted and injured Gigy Kuriakose and he is also hospitalized and the complaint is taken cognisance by the police authorities and a criminal action is in contemplation against the second respondent. There has been a threat from the second respondent against the first petitioner and even charged him that if the first petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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