TMI Blog2018 (4) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... served on him. In such a case, question of the appellant remaining absent from the Board meetings does not arise and consequently the question of applying Section 283(1)(g) of the Companies Act, 1956 to the case of the appellant also does not arise. Appeal stands dismissed. Liability of the appellant under the impugned order is restricted to the period from 20.12.2010 to 01.04.2013 with interest jointly and severally with the company and other directors of the company. - Misc. Application No. 329 of 2017 And Appeal No. 354 of 2017 - - - Dated:- 31-1-2018 - Mr . J . P . Devadhar, Mr . Jog Singh And Dr . C . K . G . Nair For The Appellant : Mr . Vishal Arun Hegde, Advocate For The Respondent : Mr . Mustafa Doctor, Seior Advocate with Mr . Pulkit Sukhramani, Ms . Vidhi Jhawar, Advocates i / b The Law Point ORDER Per : Jog Singh, Member ( Oral ) 1. The appellant has preferred the present appeal challenging the impugned order dated June 02, 2017 passed by the Whole Time Member of the Securities and Exchange Board of India, by which following directions have been passed against him : ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public norms stipulated under Sections 56, 60 and 73 of the Companies Act, 1956. The company and its Directors continued the money mobilization activity till the financial year 2012-2013, the last date being 07.06.2012 and in this process the company mobilized funds to the tune of ₹ 37.64 crore from 48,886 investors. 3. The appellant is stated to have tendered his resignation letter from the post of Additional Director on 21.09.2011 to the Board of Directors of the Company. The Board of Directors approved the resignation letter of the appellant in the Board meeting held on 10.10.2011. However, the name of the appellant was still appearing on the MCA portal so by way of abundant caution he tendered his resignation letter for the second time on 26.02.2013. The name of the appellant still reflected as Director of the company in the MCA portal in the month of April, 2013 even after submission of Form 32 on 26.02.2013, so he once again tendered his resignation letter to the Board of Directors on April 01, 2013. 4. The appellant contends that his liability can only be to the extent of the RPS issued during his tenure as the Director of the company from 20.12.2010 to 09.04.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attend any or three consecutive meetings of the Board of Directors of the company and that such absence was without the leave of the company. The Learned Counsel further submits that the appellant has neither expressed any grievance against the company in his subsequent resignation letters dated 26.02.2013 and 01.04.2013 for still reflecting his name as the Director of the company on the MCA portal of ROC nor did he mention anything about his first resignation letter dated 21.09.2011 in the subsequent resignation letters submitted by him. This plea is an after-thought. The Learned Counsel submits that the name of the appellant has been appearing on the MCA portal till he tendered his resignation on 01.04.2013. 9. We have heard both the learned counsel for the parties and perused the pleadings along with the documents annexed therewith. 10. This is the second round of litigation. The appellant had earlier approached this Tribunal by way of Appeal No. 2 of 2016 challenging the order passed by SEBI on October 19, 2015 against the company and its eight directors, including the appellant. The order dated October 19, 2015, inter alia, directed the company and its directors to, joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceed to pass fresh order on merits and in accordance with law . 5 . Appeal is disposed of accordingly in the above terms with no order as to costs . 12. Pursuant to the order of this Tribunal dated August 09, 2016, the appellant filed his reply dated August 18, 2016. He was also granted an opportunity of hearing on January 05, 2017. However, acceding to his request made vide letter dated January 03, 2017, SEBI granted an opportunity of hearing to the appellant at Eastern Regional Office of SEBI at Kolkata on February 17, 2017. The appellant, however, did not avail of the said opportunity of personal hearing and, therefore, SEBI, proceeded on the basis of the documents available on record and passed the impugned order dated June 02, 2017 challenged in the present appeal. 13. There seems to be some obscurity about the exact date of resignation and acceptance thereof. According to the appellant, his date of resignation is 21.09.2011 but as per SEBI, it is 01.04.2013. If the contention of the appellant is accepted that certain facts were not considered by SEBI, it would require remittance of the matter to the file of the concerned SEBI officer, which will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anies to that effect and give intimation to all the concerned departments and give a copy of the same to me for my reference and record . Third resignation letter dated 01 . 04 . 2013 Re : Resignation Dear Sir, Due to my pre - occupation elsewhere, I am not in a position to devote my time to the affairs of the company . Accordingly, I am submitting my resignation as Director of the company with immediate effect . Kindly acknowledge the receipt and arrange to submit the necessary forms with the office of the Registrar of companies, Kolkata accordingly . 16. From the above-said it is evident that the appellant did not resign on 21.09.2011 and even if it was so, he never pursued it with the Registrar of Companies or with the company for filing Form 32 with the ROC. On the contrary, after one-and-a half years he furnished fresh resignation letters on 26.02.2013 and thereafter again on 01.04.2013.Even in the subsequent resignation letters the appellant neither raised any grievance with the company nor mentioned about his resignation tendered on September 21, 2011. We, therefore, find that the appellant re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector who in spite of notice absents himself from three consecutive meetings of the Board of Directors or absents himself from all the meetings of the Board for a continuous period of three months . In the present case, it is the case of the appellant that no notice of Board meeting was issued to him . In such a case, question of the appellant remaining absent from the Board meetings does not arise and consequently question of applying Section 283 ( g ) of the Companies Act, 1956 to the case of the appellant does not arise . 22 . For all the aforesaid reasons, we see no merit in the appeal and the same is hereby dismissed with no order as to costs . However, it is made clear that the liability of the appellant under the impugned order is restricted to refunding the amount of Rs . 40 lac with interest jointly and severally with BREDL and other directors of BREDL . 20. Accordingly, the appeal stands dismissed. However, it is made clear that the liability of the appellant under the impugned order is restricted to the period from 20.12.2010 to 01.04.2013 with interest jointly and severally with the company and other director ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
