TMI Blog2016 (1) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... ng each and every promoter of a company, upon contingencies mentioned therein having occurred, to appoint a Director. The appointment has to be made by following the procedure elsewhere provided in the statute for appointment of a Director and thus the contention of the petitioners / applicants that they as promoters have a special right under Section 167(3) of the Act to appoint a Director de hors the opinion of the other shareholders / promoters, cannot be accepted. The petitioners / applicants are required to follow the procedure ordinarily provided for appointment of a Director and which procedure admittedly has not been followed. Moreover, from the order dated 20th October, 2010 of the CLB, it is evident that as of today, the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition, seek a direction to the Registrar of Companies (RoC) to, without prejudice to the rights and contentions of all the parties including the applicant seeking impleadment in this petition, upload digital signatures of the petitioners / applicants on its website, to enable the petitioners / applicants to file and upload the Annual Returns and Financial Statements for the Financial Year 2014-2015 with respect to the subject company i.e. Pragati 47 Development Ltd. 2. Though the senior counsel for the applicant seeking impleadment appearing on advance notice has at the outset objected that the relief claimed in the application is the same as the relief claimed in the writ petition and it also appears to be so to the undersigned but on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be made latest by 31st October, 2015 and if the petitioners / applicants and the said Mr. Y.K. Gauba, inspite of being Directors default in the same, they would also incur a similar disqualification under Section 162 of the Companies Act, 2013 and the relief aforesaid is required to prevent such disqualification on the part of the petitioners / applicants. 4. On enquiry, whether the appointment of the petitioners / applicants is undisputed, it is stated that the petitioners / applicants have intimated the RoC of their appointment and have also filed an affidavit to the said effect before the Company Law Board (CLB) before which proceedings under Sections 397 and 398 of the Companies Act, 1956 filed by the petitioners / applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject company. 7. I have in the aforesaid state of affairs, enquired from the counsel for the petitioners / applicants, as to how the petitioners / applicants can be permitted, even if subject to the outcome of this petition and without prejudice to the rights and contentions, to as Directors of the company upload the Annual Returns of the company and as to how the petitioners / applicants can be so permitted to upload whatever returns and statements they desire to upload and which would constitute a representation to the public a statement of the affairs of the company and whether not the appropriate fora for considering, as to who should be the person responsible for the affairs of the company during the pendency of the disputes relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company, directly or indirectly whether as a shareholder, director or otherwise; or (c) in accordance with whose advise, directions or instructions the Board of Directors of the company is accustomed to act: Provided that noting in sub-clause (c) shall apply to a person who is acting merely in a professional capacity. 11. It is argued that the petitioners / applicants being undisputedly 23.1% shareholders, are promoters and entitled to make appointments of Directors under Section 167(3) of the Act supra. 12. I have enquired from the counsel for the petitioners / applicants, whether a shareholder holding say 0.1% of the shareholding of the company, would qualify as promoter and would also be entitled to appoint a Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CLB, it is evident that as of today, the petitioners / applicants stand restrained from writing any letters to the prejudice of the subject company. It can safely be assumed that the said order has been made assuming the petitioners / applicants to be not in control and management of the subject company. 15. As far as the argument of the counsel for the petitioners / applicants, of petitioners suffering a disability unless permitted to act so is concerned, the same is also subject to the petitioners / applicants being accepted as of today as Directors. The question, whether the petitioners can be said to be Directors of the subject company is doubtful and without the petitioners / applicants having a clear right to act as Directors a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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