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2020 (11) TMI 440 - AT - Companies LawWaiver of the requirements for filing Company Petition - Oppression and Mismanagement - Section 241 read with Section 244 of Companies Act - removal of the First Director form the management of the company - HELD THAT:- It is undisputed that the Respondent was managing the affairs of the appellant No.1 as managing director as per Joint Venture Agreement dated 20.1.2020 and the same was not incorporated in the AoA of appellant No.1. The notice circulated on 6.5.2019 and resolution passed on 14.5.2019 also establishes that one of the Agenda items was to withdraw the rights, powers, privileges of Respondent as Managing Director. Therefore, it cannot be ignored that Respondent was Managing Director of the appellant No.1. It is not disputed that the Respondent is member of appellant No.1 and holding 0.04% shareholding. It is also not disputed that the consent affidavit of his family were filed with the Rejoinder before the Tribunal below (Page 403 of Appeal Paper Book). Thus the Respondent’s wife and his daughters has given affidavits to the Respondent in order to protect their rights and interest in the company in which they own shares. It is on this basis the affidavits given by the wife of Respondent and his daughters who holds shares in the company is a valid consent within the meaning of Section 244(2) of the Act. The Respondent alongwith his family members hold 2.93% shareholding. His family has given the consent affidavits which were filed before the Tribunal. There are 19 shareholders as per shareholding pattern of Appellant No.1 as filed by the Appellant (Page 18 of the appeal). In the present case that the Respondent alongwith his family members are 4 in numbers but their shareholding is less than 10%. The arguments of the Respondent that his wife is shareholder of M/s Kurinji Metals Pvt Ltd which holds 30.42% shares in the appellant No.1 and she holds approximately 7% of the shareholding of appellant No.1 through M/s Kurniji Metals Pvt Ltd cannot be considered as the Resolution from M/s Kurniji Metals Pvt Ltd is required to give company’s consent. The contention that she is a proportionate shareholder and her shareholding should be counted for making out the criterial is not accepted. This is one of the exceptional and compelling circumstances, which merit the application for waiver - Appeal dismissed.
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