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2017 (9) TMI 536 - Tri - Companies LawActs of oppression and mismanagement - validity of EOGM - Held that:- Petitioner having signed several statutory documents along with respondent No. 2 as Director, after lapse of nearly three years raised the plea that respondent No.2 ceased to be Director with effect from 01.10.2010. This issue was raised by petitioner No. 1 for the first time only after steps were taken by respondent No. 2 to get the plots transferred in the name of respondent No. 3 from respondent No. 10. Moreover, it is for petitioner No. 1 who is a regular Director of the first respondent company to have another Director in order to manage affairs of the first respondent company which is the mandate of provisions of the Companies Act, 1956 as well as the Companies Act, 2013. But, petitioner No. 1 did not take any initiative even after expiry of the term of respondent No. 2. On the other hand, petitioner No. 1 along with respondent No. 2 having signed several documents as Directors, raised the dispute regarding continuation of respondent No. 2 as Director of the first respondent company only with a view to defeat transfer of plots made by respondent No. 10 in favour of respondent No. 3. Therefore, this issue raised by petitioner No. 1 may not help him in any way in a petition under section 397 and 398 of Companies Act, 1956. It is settled law that when there is a plea of forgery of signatures, there is need for taking evidence and decide the issue either by Civil Court or by Criminal Court. Petitioner has already filed Civil Suit before Sr. Civil Judge, Surat wherein also he has raised the issue that his signature was forged on the resolution dated 01.08.2012. Therefore, it is not proper for this Tribunal to decide whether the signature of the petitioner on the resolution dated 01.08.2012 is forged signature or not and it is left to the Civil Court to give a finding on it. Plea of the petitioner that notice of EOGM was not sent to him do not merit acceptance. In order to hold EOGM it is necessary to call for a meeting of the Board of Directors to decide the holding of EOGM. Respondents did not place any material on record to state that Board meeting took place on 11.12.2012 and notice of such Board Meeting was given to petitioner No. 1. Therefore, resolution passed in the EOGM dated 17.12.2012 cannot be held to be legal. Petitioners failed to place material on record to establish the alleged acts of oppression and mismanagement. The allegation of syphoning of funds by respondent No. 2 has also not been established. Moreover, respondent No. 2 gave explanation stating that Income Tax refund amount of ₹ 15 Lakhs has been credited to the loan account of Benani Polychem Ltd. Further, petitioner No. 1 at more than one place reiterated that plot Nos. 263 to 266 are the only property of the first respondent company after the machinery etc. was sold by the first respondent company. The said plots were also transferred to respondent No. 3. The first respondent company ceased to operate. In these circumstances there is no point in appointing Managing Committee to manage affairs of the first respondent company. There is also no need to order for auditing the accounts of the first respondent company. In view of the above discussions it is held that EOGM of the first respondent company conducted on 17.12.2012 is not a valid EOGM. The issues relating to resolutions dated 01.08.2012 and 15.10.2013 and MOU dated 15.02.2012 and the final order passed by respondent No. 10 on 25/28th March, 2013 can only be decided in the civil suit. In view of the finding that there are no acts of oppression or mismanagement and the only property of company i.e. plots No. 263 to 266 are subjudice in Civil Court, no relief need be granted in this petition.
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