TMI Blog2015 (7) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... who is a member (shareholder) for seeking direction from this Bench to the company and any officer thereof to make good the default. Hence the petitioner entitled to file the present petition and the petition is maintainable. In the present case the petitioner tendered his resignation to the Board of directors in writing vide his letter dated 25.04.2012 therefore the intention is explicit and clear and the resignation takes effect from 25.04.2012. The only objection of the company in taking note of the resignation of the petitioner and filing Form 32 with the concerned Registrar is that the company incurred certain liabilities at the behest of the petitioner during October 2010 and April 2012. As stated supra the resignation will not however relieve the petitioner from any liability if any, which he may have incurred while in office as alleged by the respondents. I am of the view that the company and its officers made default by not filing Form 32 intimating the resignation of the petitioner from the post of director despite receipt of 14 days' notice requiring it to do so. In view of the aforesaid reasons and in exercise of powers conferred under section 614 of the Companies A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany petition. Resignation of directorship is a material event and failure to notify the Registrar of Companies, of such important matters constitutes a grave offence on the part of the First Respondent and its officers. The petitioner further submitted that as already narrated despite resignation from directorship and despite the notice under Section 614 of the Companies Act. 1956 issued by the petitioner through his authorised representatives, the Company continues to be in default and the respondents are liable to make good the default in filing the Form No. 32. The failure of the First Respondent and its officers including the Second and Fourth Respondents to file the Form No. 32 pertaining to the resignation of the petitioner from the office of director with effect from 25.04.2012 has put the petitioner to severe hardship and untold difficulties. Hence, he requested the Bench to direct the Company to file Form No. 32 with the concerned Registrar of Companies effecting cessation of petitioner from the post of Director. 2. The respondents have filed a detailed counter affidavit and stated that the petitioner continues to be a director of the 1st Respondent and therefore no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Respondent No. 3. who was a shareholder of the Company would be appointed to the Board of Directors of the Company in view of his experience in this sector. The Board of Directors of the Company then commenced steps to apply the assets of the Company towards earning some income and commence repayment of the liabilities taken in the company's name. The respondents submit that the company had been set up with sufficient funds to operate from low cost rental premises and with limited resources for a time horizon of three years. However, on account of the mismanagement by the petitioner, the Company had been burdened with extensive liabilities, but no progress in business, leading to the company becoming liable to be wound up. The second respondent and the shareholders of the Company had started questioning the process and unilateral decision making of the petitioner right from November, 2011. Faced with mounting expenditure and enormous liabilities, the petitioner decided to abandon the company and issued the letter dated 25.04.2012 claiming that he was resigning from the Company. The Board of Directors responded to the petitioner's letter by not accepting his resignati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the police to continue their discussions outside the police station, upon which the petitioner agreed to meet with the other directors at the registered office of the Company. The directors then proceeded separately to the registered office of the Company. On the basis of these discussions, the petitioner undertook to settle the liabilities created by him in the name of the company. The petitioner and the third respondent also agreed to withdraw their communications for resignation from the board of directors of the Company. The directors then passed certain resolutions on the distribution of the responsibilities and liabilities of the company amongst the directors. The discussions at the meeting went on for over several hours, and thereafter resulted in the resolutions being passed. The allegations of coercion or fraud are completely false. After the meeting, all the directors were provided with copies of the resolutions passed at this meeting. The respondents therefore submit that no requirement of filing the Form No. 32 arose in view of the withdrawal of their resignations by the petitioner and the third respondent and their continued participation in the company's af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 2012 are cleared to the satisfaction of all parties concerned, it is also stated that most of those liabilities are directly as a result of decision taken by the petitioner unilaterally. The Company held its general body meeting on 20.07.2012, wherein it was resolved that the petitioner has been mostly unreachable on the telephone and does not respond to emails or to the text messages. It is also resolved that the petitioner has not attended the Board Meeting even though he was invited and recorded that the petitioner has been passing information to the creditors from whom he has borrowed money on behalf of the Company and also recorded that he has entered into an agreement with M/s Vertex System Private Limited. It is also recorded that the petitioner has borrowed monies ranging from ₹ 50,000 to ₹ 5,00,000 from various parties under false pretences of pay back on behalf of the company, but not accounted in the company's account and the company is not at all responsible for those borrowings. It is also recorded that if the petitioner failed to meet the liabilities a formal complaint will be filed with the local authorities. The petitioner vide his letter dated 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer thereof to make good the default within such time as may be specified in the order. Admittedly, the present petition is filed by the petitioner who is a member (shareholder) for seeking direction from this Bench to the company and any officer thereof to make good the default. Hence the petitioner entitled to file the present petition and the petition is maintainable. Admittedly the petitioner was named as first director in the Articles of the company along with the 2nd respondent. The petitioner resigned from the post of director vide his letter dated 25.04.2012 addressed to the Board of directors stating that he would like to resign from the directorship of the Board of directors of the R1 Company and requested the Board to place the resignation letter at the Board meeting so that his resignation will take immediate effect. The respondents received the resignation letter of the petitioner and the 3rd respondent vide his letter dated 26.04.2012 addressed to the petitioner stated that the petitioner cannot resign until all liabilities incurred by the R1 Company at the behest of the petitioner during the periods from October 2010 to April 2012 are cleared. From the letter it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
