TMI Blog2015 (6) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... r had filed a complaint before the Registrar of Companies on 17/11/2014, which fact he has not disclosed in the petition, and therefore, the Petition deserves to be dismissed. I have considered this objection too. The ROC is an administrative authority. He is not a judicial or quasi-judicial authority. Therefore, non disclosure of a complaint made to him, in my opinion, is not a sufficient ground for dismissal of the petition. Having considered the submissions, in my opinion, the grounds taken by the Respondent No.4 assailing the maintainability of the petition are frivolous, misconceived and not tenable in law. The same are rejected accordingly. - Decided against the appellant.[C.A.No.322/2014] Power to review its own order passed by CLB - In my opinion, the law cited by the Ld. Counsel appearing for the Petitioner is not applicable to the facts of the present case. In the present case the impugned order passed on 20/11/2014 is an ad-interim order, which clearly states that the resolution, if any, that may be passed in the EOGM, shall not be implemented without approval of the CLB. Therefore, reconsideration of such ad-interim order passed by the CLB cannot be said to be revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act is made out from the averments made in the petition. d. Because, the Petitioner has made incorrect statement in the petition that no compliance has been filed by him before any authority prior to filing of this petition. 2. Affidavit-in Reply has been filed by the Petitioner to C.A. No.331/2014, to which the Respondent No.4 has filed a Rejoinder Affidavit. For the sake of clarity, the Parties shall be referred to hereinafter in the manner they are originally ranked in the Company Petition. 3. The Ld. PCS appearing for the Applicant/ Respondent No.4 invited my attention to the provisions of the Company Law Board Regulation, 1991 which stipulates that - The Petitioner shall serve a copy of the reference or petition other than a petition under Sections 49, 79, 80A, 111, 111A, 113, 118, 144, 163, 188, 196, 219, 225, 284, 304 and 307 of the Act, upon the concerned Registrar of Companies having jurisdiction over the company and shall attach to and present with his petition, reference acknowledgement from the office of the Registrar of Companies on receiving a copy of the petition, reference so served. The Ld. PCS further pointed out that it has also been provided therein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id ground without entering into merits of the case. However, it is directed that this ground shall be taken into consideration at the time of final hearing of the petition. 6. Next ground taken by the Respondents for dismissal of the petition that no case under Section 397/398 of the Act is made out from the averments made is misconceived. The contention raised by the Respondent No.4/Applicant involves mixed question of law and facts. Admittedly, the Petitioner is a shareholder and has share qualification as provided in Section 399 of the Act. He has made serious complaints relating to the alleged acts of oppression and mismanagement in the conduct of the affairs of the Respondent No.1 Company committed by the Respondents. I, therefore, hold that this ground is devoid of merits. It is also rejected accordingly. 7. With respect to the last ground taken by the Respondents, it was argued by the Ld. PCS appearing for the Respondent that the Petitioner had filed a complaint before the Registrar of Companies on 17/11/2014, which fact he has not disclosed in the petition, and therefore, the Petition deserves to be dismissed. I have considered this objection too. The ROC is an admini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner as a Director of the Company. The Ld. PCS has further submitted that the Company had availed loan from the HDFC Bank prior to filing of the Petition, with respect to such loan a charge to be created and therefore, the Company may be allowed to create a charge. He, therefore, prayed that the ad-interim order passed on 20/11/2014 may be vacated. 14. On the other side, the Ld. Counsel, appearing for the Petitioner, submitted that the aforesaid order was passed by this Bench on merits after hearing both the parties. According to the Ld. Counsel, under the Company Law Board Regulation, 1991, the CLB is not vested with the power to review Its own order, and therefore, the Bench is not empowered to review the impugned order passed on merits after hearing both the sides. In support of his contentions, the Ld. Counsel has placed reliance on the decision rendered by the Bombay High Court in the case of Jer Rutton Kavasmaneck Alias Jer Jawahar Thadani Ors. vs. Gharda Chemicals Ltd. Ors. (2013- (177)-COMPCAS-02 68-BOM) 15. I have considered the submissions and perused the record. 16. In my opinion, the law cited by the Ld. Counsel appearing for the Petitioner is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a promoter director should not and cannot be removed as a Director of the Company. 19. On the other side, it was argued by the Ld. PCS appearing for the Applicant-Respondent No.2 that, upon forensic audit being carried out by the Company, it was found that the Petitioner has misappropriated huge amount of the Company for his personal benefit, and therefore, the Company, by following due course of law, has rightly removed the Petitioner as a Director of the Company. 20. I have carefully considered the rival submissions and perused the record. I have also gone through the Report of the forensic audit submitted by the Applicant-Respondent No.2 in support of his case. Without expressing any opinion at this stage on the authenticity and correctness of the said report, it is suffice to say, at this stage, that the Petitioner has been removed by the majority group of shareholders after following due course of law on the charges of misappropriation and diversion of funds of the Company by the Petitioner to his personal use and benefit which charges are prima facie established by the Forensic Audit Report as is seen from the entries reflected in the statements of accounts filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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