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2018 (12) TMI 1373 - AT - Companies LawOppression and mismanagement - appellants argued that they have not made any claim that they are the shareholders of the first respondent and it is not their claim - Held that:- We have given a thoughtful consideration on this issue and it would have to be examined whether the first respondent is a necessary party or not and if so the appellants (the original petitioners) would have been directed to make suitable amendments. In the light of it we do not find that the dismissal of the company petition at the preliminary stage on this would be justified and at best the first respondent could only be deleted from the arrays of the parties which also we have to reach a conclusion after some examination. The other issue on which the company petition was dismissed raised in this appeal that no board resolution authorising representation of the appellant-company was presented. On this issue learned counsel for the appellants argued that no board resolution is required to be shown by shareholders of a company claiming to act in the name of that company, on the principle of derivative rights to act for and/or on behalf of, and/or in the name of the company. Learned counsel further argued that at the highest appellants (the original petitioners) could have been directed that the company shall not be allowed to be represented until such time a board resolution was presented or it could have been directed to stand stripped from the array of the appellants. We are, therefore, of the opinion that the appellants (the original petitioners) should have been given time to produce the authority to represent the company or it could have been directed to stand stripped from the arrays of the appellants. Further the second to fourth appellants have also an independent right to move the application for oppression and mismanagement against their interest even if they are representing the company. Therefore, the dismissal of the petition that they do not have a board resolution, etc., would be a partial truth only which should not amount to denial of right of a shareholder to move an application for oppression and mismanagement. The other issue raised by the respondents was that the appellants are not shareholders of the appellant-company. On the other hand, the appellants have stated that they are the shareholders of the appellant-company on affidavit, therefore, the Tribunal would have directed the appellants to present the proof of their shareholding during the course of hearing and then should have come to the conclusion whether the appellants are shareholders of the appellant-company or not. In view of the above observations, we set aside the impugned order passed in Company Petition and direct the Tribunal to rehear the company petition in view of our above observations.
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