Home Case Index All Cases Companies Law Companies Law + Tri Companies Law - 2017 (12) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (12) TMI 453 - Tri - Companies LawOppression and mismanagement - whether there was due diligence on the part of the applicant petitioner? - Held that:- According to the applicant petitioner, he has got knowledge of appointment of respondent No. 3 as Director only after he made part inspection of record on 29.07.2016. The facts appearing on record is glaringly different. Respondent No. 3 is Director of the first respondent company from 02.05.2015 and relevant forms have been filed with Registrar of Companies on 07.05.2015. Company Petition has been filed on 25.08.2015. When the petitioner inspected the records of the company he must have got knowledge that the third respondent is Director of the first respondent company. In the cause title of main petition itself respondent No. 3 is shown as Director/shareholder. Therefore, it is clear that applicant petitioner has got ample knowledge that respondent No. 3 is Director of the first respondent company by the date of filing this petition. Having knowledge of appointment of the third respondent as Director of first respondent company even before filing of this petition, applicant petitioner did not chose to make any such grievance or any comment on appointment of respondent No. 3 as Director of the first respondent company. Therefore, the amendment now sought to be made seeking removal of third respondent as director is nothing but an afterthought and omission of seeking such relief in the main petition is absence of due diligence. Coming to the amendment of siphoning of funds by respondents No. 2 and 3 together, there are some allegations in the main petition. Now the petitioner wants to bring on record subsequent acts of siphoning of funds on record. When the petitioner is alleging that the oppression and mismanagement is continuous act, petitioner is at liberty to bring on record subsequent oppression too by filing affidavit without amending the pleadings. Therefore, the amendment now sought to be made by the petitioner is not covered by proviso and it is lacking bona fides. Crucial point for allowing any amendment is that the amendment must be necessary for the purpose of determining the real question or issue involved in the proceedings. When the petitioner did not chose to question the appointment of respondent No. 3 in the petition although he has got knowledge, then, it cannot be said that the real question involved in this case is appointment of third respondent as Director. The real controversy involved in this case is whether there are acts of oppression and mismanagement qua the petitioner and the first respondent company. To decide such acts of oppression and mismanagement, appointment of third respondent as Director of the first respondent company, need not be taken up by way of amendment. In view of above discussion, application seeking amendment is not a bona fide application and deserves to be dismissed and accordingly dismissed
|