TMI Blog2017 (12) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... before filing of this petition, applicant petitioner did not chose to make any such grievance or any comment on appointment of respondent No. 3 as Director of the first respondent company. Therefore, the amendment now sought to be made seeking removal of third respondent as director is nothing but an afterthought and omission of seeking such relief in the main petition is absence of due diligence. Coming to the amendment of siphoning of funds by respondents No. 2 and 3 together, there are some allegations in the main petition. Now the petitioner wants to bring on record subsequent acts of siphoning of funds on record. When the petitioner is alleging that the oppression and mismanagement is continuous act, petitioner is at liberty to bring on record subsequent oppression too by filing affidavit without amending the pleadings. Therefore, the amendment now sought to be made by the petitioner is not covered by proviso and it is lacking bona fides. Crucial point for allowing any amendment is that the amendment must be necessary for the purpose of determining the real question or issue involved in the proceedings. When the petitioner did not chose to question the appointment of respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of ₹ 10 each altogether, fully paid up which constitutes about 44% of the issued and subscribed capital of the Company . [D] Add the following at paragraph 5 (g)(iii)(a) to 5(g)(iii)(h) of the petition:- (a) The appointment of respondent No. 3 itself is illegal and the same has been done without the consent of the petitioner. Respondent No. 3 was appointed as a Director of the respondent No. 1 company under section 152 of the Companies Act, with effect from 02.05.2015 and for giving the formal effect to the appointment, the E-Form DIR 12 was filled, signed and filed on 07.05.2015 (copy of the E-Form Resolution for appointment and consent to act as Director is attached herewith and marked as Exhibit - 2A). The petitioner hereby submits that no Board Meeting was convened and held for the alleged appointment and no resolution has been passed by the Board of the Directors of the respondent company for authorizing any such appointment. Thus, the petitioner being one of the Directors of the respondent company has never given any consent for the alleged appointment of respondent No. 3 as a Director of the respondent company. Respondent No. 3 is the son of respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by respondent No. 2 has expressed his inability to provide documents pertaining to appointment of respondent No. 3 (Copy of the letter attached herewith and marked as Exhibit - 4 A). (e) This indicates that the appointment of respondent No. 3 is illegal and fraudulent as no proper procedure was followed for appointment of Director of the respondent company as mandated and enforced by the Companies Act, 2013 read with the Secretarial Standards. (f) The petitioner, vide letter dated 03.01.2017, also sought documents related to the appointment of respondent No. 3 from Mr. Kamalkumar Jain, the Chartered Accountant in practice (Auditor of respondent company) who certified the E form DIR - 12 for appointing respondent No. 3 as a Director of the respondent company; since being a professional and certifying authority, he must have obtained the said documents before certifying the form. (Copy of letter is attached herewith and marked as exhibit - 5A) Mr. Jain replied vide letter dated 04.01.2017 stating that the concerned documents were not in his possession. (Copy of the letter is attached herewith and marked as Exhibit - 6A). The reply further indicates that he has only those do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed his right to challenge the appointment of respondent No. 3 as director of the first respondent company. Regarding the issue of buying raw materials at higher rates and selling products at lower rates, no such whisper of the issue was made in the main company petition and introduction of such issue will cause the introduction of new cause of action. 04. In the rejoinder the petitioner has reiterated the same facts which he has stated in the petition. It is stated in the rejoinder that applicant came to know about the illegal appointment of respondent No. 3 as Director of the first respondent company and about buying raw material at higher rate and selling products at lower price only after inspection of part of statutory register and bank statement. 05. Heard arguments of learned senior advocates for the applicant and respondents. 06. Rule 155 of NCLT Rules deals with powers of Tribunal which reads as follows:- Rule 155 - General Power to amend:- The Tribunal may, within a period of thirty days from the date of completion of pleadings, and on such terms as to costs or otherwise, as it may think fit, amend any defect or error in any proceeding before it; and all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn by the applicant petitioner with liberty to file fresh application on 08.03.2017. Thereafter, applicant original petitioner filed this petition IA 54 of 2017. IA 30 of 2017 was filed on 31.01.2017 and pleadings in this case concluded on 23.12.2016. Rejoinder was filed on 23.12.2016. Thereafter, first amendment application in IA 30 of 2017 which is withdrawn by the petitioner that was filed on 31.01.2017 itself was beyond 30 days from the date of completion of pleadings. More so the premature application which is filed on 03.11.2017. 13. In Company Petitions there is no stage of framing of issues. On 23.11.2016 hearing of the main petition was fixed on 23.12.2016. Therefore, it is deemed that the time has commenced from 23.12.2016. In view of VI Rule 17 amendment application shall be filed before commencement of trial. Therefore, even in that view of the matter, the first application for amendment was filed after commencement of hearing (trial). 14. In the judgment of Hon ble Company Law Board, Mumbai Bench in Vipul Prabhatkumar Maheshwari v. Bi-Chem (India) (P) Ltd. referred to the judgment of Hon ble High Court of Mumbai in Walchandnagar Industries Ltd. (W.P. No. 722/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the provisions of Regulation 46 of CLB Regulations. 16. As per CLB Regulations 46 amendment application can be filed at any stage of the case but as per Rule 155 of NCLT Rules amendment application shall be filed within a period of thirty days from the date of completion of pleadings. This is a case filed in the year 2015 i.e. on 25.08.2015 i.e. before sections 241 and 242 of the Companies Act, 2013 came into force. Therefore, it may be said that CLB Regulations has to be followed because it is a case that is admitted under sections 397 and 398 of the Companies Act, 1956 and it is a case filed before coming into force sections 241 and 242 of the Companies Act, 2013. 17. Leaving that aspect aside, due diligence must be there on the part of the applicant petitioner in not filing this kind of application earlier to the completion of pleadings or prior to commencement of hearing. 18. Now I proceed to examine whether there was due diligence on the part of the applicant petitioner. Main aim of filing this application is to challenge the appointment of respondent No. 3 as Director on the Board of the first respondent company and to bring on record that respondents No. 2 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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