TMI Blog2017 (1) TMI 1630X X X X Extracts X X X X X X X X Extracts X X X X ..... e it abundantly clear as to who can initiate such proceedings. The petitioners have candidly admitted that neither petitioner No. 1 nor the other petitioners are shareholders of Respondent No. 1 Company. I therefore find the present petition not maintainable. - Company Petition No. 144(ND) 2016 - - - Dated:- 13-1-2017 - Ina Malhotra, J. For Appellant: Deepak Khosla, Advocate For Respondents: Rishi Sood, Advocate ORDER Ina Malhotra, 1. This Company Petition is yet another in the long line of litigation between the parties. The petitioners have accused Respondent No. 1 Company of oppression and mismanagement by invoking the provisions of Sections 241 242 of the Companies Act, 2013 and have prayed for exhaustiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elop a Holiday Resort at Kasauli in Himachal Pradesh on land belonging to her father-in-law, Petitioner No. 6 herein. For this purpose agreement had also been entered into with Respondents 12 13 and others to acquire adjoining properties. A proposal for tying up with M/s. K.K. Ropeways, Respondent No. 30 was also agreed upon to facilitate the business objects. In terms of a business arrangement, it was proposed that Respondent 2 would infuse investment for developing the project and would be a majority shareholder. Agreements dated 31st. March 2006 was signed between the parties. Respondents 2 to 4 were inducted as Directors. As per allegations made by Petitioners, Respondent No. 2 further allotted shares to his wife and daughters i.e. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s herein. 6. Before going into the merits of the case, Respondent No. 1 impugns the maintainability of the present petition, predominantly on three fold grounds. In the arguments advanced by them, it has been submitted that Firstly the petitioners have no locus to file the present petition u/s. 241/242 of the Companies Act, 2013 as they are not the shareholders of the Respondent Company, let alone surmounting the threshold of holding 10% equity. 7. Secondly, in addition to the aforesaid objection, it is stated that no resolution has been passed by the Petitioner Company authorising Petitioners to sign, verify or institute the present proceedings. In the absence of any resolution, filing of the present petition is not maintainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had purchased the shares of Mr. Vini Ahuja is repudiated by the respondents who have pointed out that there is no document on record to substantiate either the said transfer or the transmission of shares in favour of any of the petitioners. 9. In rebuttal to the aforesaid objections, Mr. Khosla, Petitioner No. 2 in person and husband of late Mrs. Sonia Khosla admits that neither the petitioner Company nor any of the other petitioners are shareholders of the respondent Company. It is his case that the present petition is in a derivative form. Petitioners 2 to 7, being members/shareholders of Petitioner No. 1 company, have derived a right and interest which accrued in its favour. The fraudulent acts of Respondents 2 to 4 and 5 to 8 have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer of shares in his favour from Mr. Vini Ahuja. He further seeks to retract admissions made in various pleadings made by his late wife on grounds of being factually incorrect. 12. I am unable to appreciate the arguments advanced by the petitioner. Firstly, in the absence of any resolution passed by the Petitioner No. 1 Company, the maintainability of the proceeding is vitiated by lack of authorisation to file the same. The company is a separate entity and cannot be represented through individual petitioners. Mr. Khosla has relied upon a catena of judgements. Needless to say all these are proceedings pertaining to Suits and not to Company Petitions. Moreover, in a derivative claim the shareholders invoke their rights for wrongs done by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear as to who can initiate such proceedings. Sec. 241 of the Companies Act 2013 is reproduced as below: (1) The following members of a company shall have the right to apply under section 241, namely:-- (a) In the case of a company having a share capital, not less than one hundred members of the company or not less than one-tenth of the total number of its members, whichever is less, or any member or members holding not less than one-tenth of the issued share capital of the company, subject to the condition that the applicant or applicants has or have paid all calls and other sums due on his or their shares; (b) In the case of a company not having a share capital, not less than one-fifth of the total number of its members: Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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