TMI Blog2017 (5) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... pta by way of EOGM dated 03-09-2013 and 03-10-2013 and the resolution thereat, are illegal and void; and Any other act/acts done by the respondent(s) in pursuance of the Board meeting and EOGM dated 11-04-2013, 20-04-2013, 24-04-2013, 21-05-2013, 03-09-2013, and 03-10-2013 respectively are bad in the eye of law and hence, hereby declared null and void. Further, the respondent No. 2 is hereby directed not to cause any hinderance in restoration of original position of the petitioner Nos. l and petitioner No. 2. This order is hereby concluded directing the respondent Nos. 1 and 2 to give effect to the cancellation of the appointment of the Respondent No. 3 to 5 as Additional Directors and to restore the petitioners as Directors of the company and the same shall continue till either of the parties will have fair exit from the company. - C.P. No. 63/2014 - - - Dated:- 23-3-2017 - Ms. Manorama kumari, J. For The petitioners : Mr. Aniruddha Roy Adv., Mr. Nirmala Dasgupta, Adv., And Mr. Dibanath Dey, Adv. For The Respondents : Kuldip Mallick and Ms. Rituparna Chatterjee, Advs ORDER The instant Company Petition is filed by the petitioners, involving various pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Bank, though no relief is claimed from the said Bank. Altogether, the petitioners hold 36.37% of the total issued, subscribed and paid up capital of the said Company and by reason of this, the petitioners altogether hold more than 10% of the total issued, subscribed and paid up share capital of and in the Company and thus they have requisite share qualification to file the petition under Section 399 of the Companies Act, 1956 (enclosed copy of annual return of the company for the year 2011-12). Prior to October, 2013, the petitioner Nos. 1 and 2 were the Directors of the Board of the said Company along with respondent No. 2, being the son of petitioner No. l. The petitioner submitted that sometime in the month of March, 2013, the respondent No. 2 started pressurising respondent No. 3 (mother of petitioner No. 2 and wife of petitioner No. l) to convince the petitioner Nos. 1 and 2 to transfer their shareholdings in favour of Respondent No. 2 so that he can take control and affairs of the Company. As the petitioner Nos. l and 2 declined to accede to this unreasonable demand of Respondent No. 2 and after such refusal, the respondent No. 2 started putting diverse mischie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d illegal EOGM and the petitioner No. 2 also was removed by purported Board meeting from the company with effect from 21-05-2013. The copy of the said letter was also annexed and marked with letter Q - Page 208 of the petition. It is pertinent to note herein that no previous notice as required under the law, is issued to the petitioner(s) before removing either the petitioner No. l or the petitioner No. 2. It is also pertinent to mention herein that the respondent No. 2, on filing of the criminal complaint under Section 144 of the Criminal Procedure Code before the Ld. Executive Judge, bearing case No. MP507/2013 by the respondent(s) as against the petitioner No. 2, the respondent No. 2 obtained an order dated 18-03-2013 from the Executive Judge, whereby the petitioner No. 2 was restrained to have any access to the said premises No. 8/2/C, Alipore Park, Kolkata - 700 027 as pleaded in the petition. It is clearly evident that the respondent No. 2, on the one hand obtained one order against the petitioner No. 2 so that the petitioner No. 2 did not have the access to the said premises, being premises No. 8/2/C, Alipore Park, Kolkata - 700 027 and on the other hand, held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner No. 2), for self (as Respondent No. 2) and to Smt. Mridula Gupta (to be appointed as Additional Director) by way of hand delivery, all notices are issued on 2-4-2013, reflecting the date of meeting as on 11-04-2013 to be held at 4, India Exchange Place, Kolkata at 3 p.m. to consider the following agenda i.e. (a) To grant leave of absence (b) To confirm the minutes of the last meeting of the Board of Directors (c) Appoint Mrs. Mridula Gupta as additional Director of the Company and (d) To discuss and consider any other matter with the permission of the Chair. Very surprisingly, all the notices are shown to have been received by one Shri S. Jha on behalf of the Respondent Nos. 2 and 3 as well as for the Petitioner No. l and for petitioner No. 2, by one Shri Tarun Haider, shown to have received (page Nos. 158 to 161 of reply of the respondent(s), as drawn attention by the Ld. Lawyer of the petitioner. One undated photo copy, (certified to be true copy) is annexed with reply showing the resolution passed at the meeting of the Board of Directors of the Company, Triupati Investments Traders Ltd. held on 11-04-2013 at its registered Office at 4, India Exchange Pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as leave of absence is granted to Shyam Saran Gupta. Thus, it is clear that the document relied upon by the respondent, itself shows that no notice of the Board meeting dated 20-04-2013 was ever issued to the petitioner No. 2. Minutes of meeting reflects appointment of the respondent No. 4 and Respondent No. 5. Accordingly, after the holding of the meeting, Form 32 is also uploaded with ROC by the respondent reflecting Mridula Gupta, Priyanka Gupta and Kashmira Gupta (Respondent Nos. 3 to 5) as the additional Directors and the petitioner No. 2, Rajnandini Pachasia as ceased to be the director of the company in Form 32 (page No. 181 of the reply). On perusal of the reply filed by the respondent as also the attention drawn by the Advocate of the petitioner(s), it is found that similar notices are/were issued again on 10-05-2013 by the respondent No. 2 to Shyam Saran Gupta, (petitioner No. 1), Rajnandini Pachisia, (petitioner No. 2), Smt. Mridula Gupta, (Respondent No. 3), Ms. Priyanka Gupta, (respondent No. 4), Miss Kashmira Gupta (Respondent No. 5) and to self, (as Respondent No. 2), wherein the date of Board meeting is/was reflected as 21-05-2013 to be held at the same p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company; (d) To discuss and consider any other matter with the permission of the chair. This time also, all the notices are shown to have received by the one and the same person, who had received notices on last three occasions (Page Nos., 200 to 204 of reply). It is important to note, as alleged by the petitioners that the Board meeting is held with notice of only 3 days as against the provision which mandates 7 days' notice and the same date is/was also fixed for Extra Ordinary General Meeting i.e. 03-09-2013 as per agenda which is clear violation of the provisions as enshrined in the Companies Act, 1956. The minutes of meeting dated 3-9-2013 is enclosed along with the reply at page 209, wherein the minutes of previous board meeting is approved and the Chairperson informed that the meeting has been convened to consider requisition under Section 169(1) of the Companies Act, 1956 received from the shareholders for calling the Extraordinary General meeting to consider the resolution for removal of Shri Shyam Saran Gupta (petitioner No. 1) from his Office of Director of the Company. It was also resolved that in compliance with the requisition under Section 169( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned in the resolutions dated 11-04-2013 and/or 20-04-2013 that as to on how many meetings as well as on which dates, the petitioner No. 2 remained absent. The very strategy adopted by the respondent(s) smacks foul play. Therefore, the vacation of the Office of the Director of the Company by the petitioner No. 2 cannot be said to be valid one as the service is/was not proper and complete. It is important to note that there cannot be two board meetings dated 20-04-2013 and 24-04-2013 for appointment of Respondent No. 4 and respondent No. 5. In this regard, it is pertinent to discuss the provisions with regard to the removal of the Director as per 283(1)(g) of the Companies Act, 1956 : Section 283(1)(g) - Vacation of office by Directors: The Office of the Director shall become vacant if - (a) He fails to obtain within the time specified in sub-section (1) of section 270, or at any time thereafter ceased to hold, the share qualification, if any, required of him by the articles of the company ; (b) He is found to be of unsound mind by a Court of competent jurisdiction; (c) He applies to be adjudicated an insolvent; (d) he is adjudged an insolvent; (e) H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1956 and on the basis of that, convened the Extraordinary general meeting to remove the petitioner No. 1. It is well settled that in case of family Company, any disturbance in the board to the detriment of any of the family shareholder, the same could be considered to be the act of oppression and keeping this background, the allegations are required to be examined. The Company normally runs on the Trust i.e. person amongst the shareholders and among the Directors when it is a family Company. The trust that was initially present with the Company was incorporated, disappear in most of the cases and it is seldom possible to be in force, the same trust which the persons make together at the time of incorporation of the Company, in a situation like this, if at all, warring parties are directed to run the Company together, the trust that was lost would not come again, whereby the best part is taking part away so that at least one of them should run the Company by providing fair exit to the other. It is needless to say that the constitutional courts time and again said that provisions of Section 283(1)(g) shall not be shown as given effect unless strict proof is shown that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he removal of the petitioner Nos. 1 and 2 from Directors of the Company on the ground that they ceased to be the Directors under Section 283(1)(g) and/or by way of convening the extraordinary general meeting without serving proper notice or special notice, respectively. Accordingly, the respondent Nos. 1 and 2 are hereby directed to restore the petitioner Nos. l and 2 to their original position as Director of the respondent No. l (Company) from the date of cessation/removal. It is pertinent to quote herein the judgment : Prabhjit Singh Johar v. Johar Hotel (P.) Ltd. 157 Comp. case 98 CLB. For vacation of office of Director under section 283(g), notices of the meetings which the director is alleged to have not attended is must. Vacation on the ground that the director failed to attend three consecutive meetings is invalid, if the meetings were not validly held. Since the meetings held without notice, those are not valid. In the case of T.V Raju Naidu v. Tiruppur Karur Transports (P.) Ltd. [2010 153 Comp Case 12(CLB),, where this Bench held that (headnote) : . . . . The respondents had failed to furnish the essential details regarding the board meeting which were not att ..... X X X X Extracts X X X X X X X X Extracts X X X X
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