TMI Blog2017 (7) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Companies Act, 1956 and the word “Private” was deleted from the name of the company. However, the Articles of Association of the Company continue to reflect the present company being a private company. The Articles of Association of the Company needs to be amended to that effect. Petition is partly allowed. The Respondents are hereby directed to fulfil all the statutory compliances for a public limited Company as has been mandated under the Companies Act, 1956 with respect to the appointment of the directors to the Board. It is directed hereby that the Petitioner be given the right to partake in the management and the affairs of the Company to the extent of the shareholding she is entitled to. The Respondents are directed to amend the Articles of Association of the Company to reflect that the Company is a public limited company and not a private limited company. Preliminary decree is being passed for the appointment of a special auditor and conducting a special audit for auditing and for verification of the accounts of the Company. The expenditure of the special auditor and the audit to be conducted will be borne by the Respondents. Moreover, the shareholding in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner therefore contends that she is entitled to 1/4th of the shares NCG held all by himself and also entitled to 1/4th of 1/2 of the shares that NCG held jointly with MKG, which brings the contended shareholding of the Petitioner to 6774 equity shares, amounting to 11.6% of the paid-up capital of the Company. The Petitioner contends that the Respondent Nos 2, 3 and 4, each is entitled to 5804 equity shares collectively equivalent to 30% of the paid up capital in the Company. R2 is the wife and successor-in-interest of MKG and R3 and R4 are the daughters and successors-in-interest of MKG. MKG being the son of NKG was a director of the Company from 2nd March 1983 until his demise on 24th September, 2008, and also held 21272 shares in the Company jointly with MKG and was entitled to 4115 equity shares through NCG's shareholding in the Company. According to the Petitioner R2, R3 and R4 are each entitled to 1/3rd of 1/4th of and 1/3rd of of the said 21272 shares and 1/3rd of 1/4th of the said 4115 equity shares of ₹ 100 each in the Company. The R2, R3 and R4 each are allegedly entitled to 5803 equity shares and R2 and R3 are allegedly wrongfully contending to be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tends that thereafter she learnt about the fact that R2, R3 and R5 were made the directors of the Company and the appointments of R2 as a director of the Company, R3 as the additional director of the Company and R5 as the director of the Company were all done pursuant to illegal resolutions. The Petitioner contended that at the time of NCG's ill health, MKG had passed a resolution of the Board of Directors on the 31st of July, 2007 to induct his wife R2 in the Company in absence of NCG and R6 who were then the directors of the Company. The resolution so passed and filed with the Ministry of Corporate Affairs was only signed by MKG and R2 as a director of the Company. The Petitioner further contends that R3 was made an additional director of the Company on the 24th of September, 2008 pursuant to a board resolution that was signed only by R2, who was apparently appointed illegally herself. Moreover, according to the Petitioner R3 has been shown to be a promoter director of the Company in Form 32 that has been filed with the Ministry of Corporate Affairs on 24th September, 2008. The Petitioner also contends that the aforementioned was done in absence of any annual general meeti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntend that the Petitioner did not apply for allotment of shares in any manner whatsoever before the company at any point of time after the demise of her father since August, 2007, and should therefore be barred from being admitted. The Respondents have also contended that the company petition is not maintainable under Section 235 or 237 of the Companies Act, 1956 as the pre-requisites mentioned in the statute to apply under the said sections have not been fulfilled. The Respondents further contend that the Registrar of Companies has not called for any information or explanation from the company in exercise of power under Section 234 of the Companies Act, 1956, and neither a report has been made by the Registrar under Section 234 of the Companies Act, 1956. Therefore, according to the Respondents no cause of action has arisen to apply under Section 235 or 237 of the Companies Act, 1956. The Respondents contended that since the Petitioner is not a member of the Company, the present company petition is not maintainable as the relief sought for under the present petition is that of oppression against any member of the Company. The Respondents contend that in the light of the ongo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner in her rejoinder has further contended that she has not filed any civil suit before any forum relating to any family disputes on inheritance of property and neither is the Petitioner a plaintiff in that suit. The Petitioner contends that premises no. 5, Jatin Das Road is a property of one of the companies of NCG which had been dealt with behind the back of the shareholders of the company and particularly the petitioner at a meagre value which is allegedly a clear indication of the oppression done by the Respondents on the Petitioner. The Petitioner further contended she is entitled to hold equity shares in the Company of her father which she has inherited and which the Company has intentionally not allotted to the Petitioner. On the basis of the pleadings of the parties following question arises for the decision of the case: 1. Whether the present suit of the Petitioner is maintainable in the light of the eligibility required for having the right to apply to the Tribunal for relief in cases of oppression 2. Whether the appointments of R2, R3 and R5 to the Board of Directors of the Company were done in compliance with the statutory provisions under the Companies Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of Section 210. Relying on a decision of Buckley J. in Bayswater Trading Co. Ltd., In re [1970] 1 All ER 608 (Ch D), he opined that Section 210 requires that member must include representatives of a deceased member. Even though this judgment was reversed in appeal on other points, the decision was not set aside of this point. Therefore, in the light of the aforementioned judgment the Petitioner can technically be treated as a holder of shares as she is a successor-in-interest and therefore, represents the estate of NCG, which by virtue of NCG's death cannot remain unrepresented. Consequently, the Petitioner is eligible to bring forth the present petition by virtue of being entitled to 11.6% shareholding in the Company through NCG, since deceased. By virtue of being a being the daughter and successor- in-interest to NCG. the Petitioner therefore can be deemed to be a shareholder of the Company by virtue of representing the property of the Late NCG that includes shares of the Company. This makes the Petitioner a representative of estate left by Late NCG to the extent of 11.6% equivalent to 6774 equity shares of the shareholding of the Company left by lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that the appointment of R3 as an additional director of the Company was done on the 24th September, 2008, which was the same date when MKG passed away. At this point of time R6 was the director of the Company along with R2. However, the board resolution so passed had only been signed by R2, whose appointment is itself contested. The board resolution has been annexed at page 96 as annexure A-6, where it has been written that: Resolved that pursuant to the provisions of section 260 of the Companies Act, 1956 and in terms of the Articles of Association of the Company, Mrs. Madhurima Ghosh be and is hereby appointed as an additional director of the Company to hold office till the conclusion of the ensuing Annual General Meeting. . Resolved further that Mrs. Mala Ghosh, Director of the Company be and is hereby authorized to file Form 32 with the Registrar of Companies in the present online filing system of MCA within the prescribed time limit and to do all such acts and things as may be necessary to give effect to the said resolution. Pursuant to the same, Form 32 as annexed at page 97 of the Petition, has also been furnished relating to the appointment of R3, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Additionally, the family settlement an.ved at on 15th January, 2010 in the family meeting was also never honoured by the Respondents The aforementioned acts complained of by the Petitioner in the present Petition amounts to oppression. However, from the pleadings furnished by the parties, it is apparent that there has been mismanagement in the Company. The Respondents who were in complete control of the Company have perpetuated many acts of mismanagement through the Company. The name of the Company was struck-off and by order of the Hon'ble High Court the name of the Company was activated. This is also a proof of oppression and mismanagement by a Company which is in complete control of the Respondents Both the Companies namely, T D Kumer Brothers and Kshirode Chandra Ghosh stood struck off in 2012, which was evident from the report provided by ROC to the Tribunal. The Hon'ble Calcutta High Court vide orders dated 5th December, 2016 was pleased to allow the petitioner's applications filed under section 560 of the Companies Act, 1956 for restoring the names of the two companies. The Court upon consideration of the applications was pleased to direct resurrection of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to non-filing of the statutory documents since 2008. The Petition before the High Court of Calcutta which was decided on 5th December, 2016 was for resurrecting the company which had been struck off the list of functioning companies under Section 560 of the Companies Act, 1956 for the statutory records and documents not having been filed. The Court in the aforementioned Petition held that: ...Subject to Ms. Mala Ghosh paying a sum of ₹ 1,14,000/- to the Registrar of Companies within a fortnight from date towards filing fees, additional filing fees and penalty, the Registrar will restore the name of the Company to the list of active companies and allow access of the relevant portal to the company and its authorised officers. The money will be deposited in the same account of the Central Government where filing fees and penalties in such regard are usually received. In default of the payment within the time indicated, C.P. No. 977 of 2016 and C.P. No. 1004 of 2016 will stand dismissed with costs. For a period of two years from date, the company will have to file its records and documents with the Registrar within the time permitted by statute or else, the Registrar wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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