TMI Blog2019 (1) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order passed by the NCLT on this issue. We also observe that the shares have been directly transmitted in the name of 4th appellant without adopting proper procedure. We are in agreement with the directions given by NCLT on this issue to enter the names of all the legal heirs of the deceased Thampi Krishna equally including 4th appellant. No notice was served to the Respondent or any other shareholders. Further the appellants have not placed the Notice or the Minutes of such a Meeting thereby confirming that no General Meeting took place. Learned counsel further stated that Form 32 filed by the Company does not have any Board Resolution, but merely the consent of 2nd appellant to act as the Managing Director. Further the Board Resolution filed with Form 23 was signed by 2nd appellant himself, thereby violating the provisions of Section 300 of Act,1956 which prohibits an interested director from participating or voting in a meeting in which he is interested. We have heard the parties on this issue. We observe that No notice was issued to Respondent and shareholders for General Meeting for approval of 2nd appellant as Chairman. Further no minutes have been placed of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re formed. Business of the group concerns grew considerably, with the result two brothers busy with business ventures in UAE and 1st respondent in the steel business of the family and this left the door open for 2nd appellant to deliberately carry out all kinds of mismanagement in the respondent company. 5. Mr. Thampi Krishna passed away on 23.11.2011 and immediately thereafter 2nd appellant appointed himself as the Managing Director of the Company. 2nd appellant then backdated appointed 3rd appellant, his wife, and 13th respondent as director to a date prior to the demise of Mr. Thampi Krishna. 2nd appellant forged the signatures of 1st and 2nd respondent and filed the forged resignation letters before the ROC to illegally remove the Respondents from management of the company. 2nd appellant then appointed 5th Respondent and 4th appellant as Directors. 2nd appellant later on appointed original 5th respondent in the company petition as director of 1st appellant. Due mismanagement of the company under 2nd appellant the 1st appellant s account with the Bank was declared as NPA and proceedings under SARFEASI Act were initiated. There are other mismanagement done in 1st appellant. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h regard to the illegal appointment of Akshaay Vijayan (R6) as Director on 28.6.2014, as shown in the documents placed at Page 179 (Annexure 15) of the petition. 6. xxx 7. The counsel for petitioners has drawn our attention to the Articles of Association wherein under Para 15(b) at Page 26 of the typeset it has been mentioned that the first directors of the company are C.K. Vijayan, C.K. Thampi Krishna, C.K. Sibi (P1) and C.K. Babu (P2). C.K. Thampi Krishna expired while Petitioners 1 and 2 were removed from the Directorship. Neither notice was given nor Board s resolution was passed. However, R1 to R4 and R6 have not properly controverted the allegations levelled in the company petition and in the absence of reasonable explanation, the illegal actions are not sustainable as there is non-compliance with the provisions of the Companies Act. The detailed allegations in the CP and the documents filed in support thereof established that the answering respondents have been running the company without following the provisions of law and taken decisions to have control over the 1st respondent company and sidelined the petitioners. As they have not been allowed to participate in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) Illegal removal of 1st and 2nd respondent from the directorship iv) Illegal transfer of shares of Thampi Krishna to his wife Smt Saira Thampi. v) Company petition is filed beyond the period of limitation vi) Appointment of 2nd appellant to the post of Chairman is legal. vii) 1st respondent cannot be made Chairman Managing Director of 1st appellant. viii) No oppression and mismanagement has taken place. 8. We have heard the learned counsel for the parties and perused the record. 9. The 1st issue raised by the learned counsel for the appellant is that in the year 2011-12 2nd respondent was holding 5.16% of shares and 1st respondent was holding 3.6% shares and the remaining 10 persons of their group were holding around 7% shares collective. It is further stated that the 2nd appellant was holding 36.9% shares and Thampi Krishna was holding 31.7% of the total shares. Around 14% shares of the remaining were held by the group of 2nd appellant. It is, therefore, admitted that the group led by 2nd respondent and 1st respondent were holding around 15.6% whereas the group of 2nd appellant was holding 84.4%. These facts clearly demonstrates that even if miniscule shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Further 2nd appellant has not produced the transfer forms by which these shares were transferred and further the appellants have stated in their reply before the NCLT that the shares were purchased as contemplated under law. Further there is no averment or documentary evidence to show that any consideration was paid by 2nd appellant for the shares in question. Therefore, we see no illegality in the impugned order passed by the NCLT on this issue. 12. The other issue raised by the appellant is that the shares of Mr. Thampi Krishna were legally transferred to Ms Saira Thampi. Learned counsel for the appellant submitted that at the time of death, Mr.Thampi Krishna was holding 31.7% shares. Learned counsel for appellant further submitted that at the time of death, his wife was survived by two minor daughters, therefore, the entire shares were transferred in her name. Learned counsel further stated that the mother of Thampi Krishna was alive at the time when his shares were transmitted in favour of 4th appellant but ultimately her shares also dwelled back to 4th appellant as per the local law. Therefore, there was no illegality in transfer of shares and no prejudice has been caused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . C.K. Sibi and Mr. C.K. Babu and all the first directors shall be permanent directors, not liable to retire by rotation. Learned counsel for the respondents submitted that all the four brothers who were permanent director were alive when 3rd appellant was appointed as director on 2.8.2011 illegally. Learned counsel for the respondent submitted that no Board Meeting had taken place on that date i.e. 2.8.2011 as on that date all the four brothers were alive. However, to cover up their illegality and as an afterthought the Forms were filed with the ROC in December, 2011. The Respondent further submitted that the appointment of 4th appellant is completely illegal as no Board Meeting was held on 27.3.2012 and no notice of any such meeting was given to 1st and 2nd Respondent. 17. We have heard the learned counsel for both the parties. We have observed that no notice or Board Minutes were filed/produced by the appellants before the Learned NCLT. We have also observed the affidavit filed by 3rd appellant and also the Form No.32 filed with the Registrar of Companies. 3rd appellant at page No.7 of her affidavit stated True Copy of Form 32 dated 02.08.2011 is being filed herewith and mar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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