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2017 (12) TMI 238 - Tri - Companies LawEligibility of EoGM - Whether the EoGM purportedly held on 27.07.2015 is in accordance with the law and legally tenable? - non service of notice - removal from directorship - Held that:- Respondent Nos. 2 to 11 stated in the counter that the Petitioner has issued notice dated 01.07.2015 to call for the Board Meeting on 27.07.2015 at 10.30 A.M. But, the Petitioner left for Dubai on 26.06.2015 and returned to India only on 02.07.2015, this fact has been proved by showing the entries of his travel in his passport during argument. Further, the shareholders have not received notice of EoGM purportedly held on 27.07.2015 as the 1st Respondent Company has received 76 complaints from the shareholders stating that they did not receive any notice of said EoGM. Moreover, the Respondent failed to produce the proof of service of notice dated 01.07.2015 on 344 shareholders pertaining to the EoGM purportedly held on 27.07.2015. Therefore, the defence taken by the Respondent Nos. 2 to 11 is highly improbable and full of fallacy. Besides the above, no material has been shown to demonstrate the fulfilment of the requirements of Section 284(1) and (2) of the Companies Act, 1956, before removing the Petitioners and the Respondent No. 12 from the Directorship of the 1st Respondent Company by the Respondent Nos. 2 to 11. The Respondent Nos. 2 to 11 failed to produce the copy of the 'special notice' containing the agenda for removal of the Petitioners and the Respondent No. 12 as Directors of the 1st Respondent Company. The omission to serve a 'special notice' to the Directors sought to be removed constitutes denial of their statutory right of the reply, and in the absence of the notice to the Directors, any resolution for their removal is vitiated by such gross omission, and the same is neither bona fide nor in the interests of the 1st Respondent Company. Thus, the Respondent Nos. 2 to 11 seem to have made efforts to usurp the office of the Directors and to gain the control over the Board of Directors of the 1st Respondent Company. Therefore, the removal of the Petitioners and R12 from the office of the Directors of the 1st Respondent Company in the EoGM purportedly held on 27.07.2015 amounts to acts of oppression by the Respondent Nos. 2 to 11. Moreover, it is on record that the appointment of Respondent Nos. 4 to 11 as Directors of 1st Respondent Company was made by a single resolution which is in violation of the provisions of Section 162 of the Companies Act, 2013. Such election per se is void ab initio. Forfeiture of shares - Held that:- Assuming that the Respondent Nos. 2 to 11 were Directors at the time of forfeiture of the said shares on 27.07.2015, and were authorised to cancel the shares. But legally, the Directors of the Company cannot utilise their fiduciary powers over the shares purely for the purpose of cancellation of the shares of the minority shareholders to improve their voting power. The court cannot allow to exercise such powers which might have been delegated by the company to the Board of Directors. Therefore, there was no authority with Respondent Nos. 2 to 11 to forfeit the shares of the Petitioner Nos. 1, 2 and 5 including 73 shareholders. The whole action is patently illegal, perverse and is declared as null and void.
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