TMI Blog2017 (12) TMI 1700X X X X Extracts X X X X X X X X Extracts X X X X ..... second respondent, who is mother Of petitioner and Chairperson also. The petitioner has also failed to establish any ingredients as prescribed under Sections 241 to 244 of Companies Act, 2013 so as to interfere in the affairs of the Company. However, the petitioner still holders of 13 % of Shares of the Company, is entitled for due notice for any ensuing meetings of the Company, and the Company should follow principles of natural justice, in conducting any future meetings/taking any decision(s). The petitioner failed to make out any case so as to interfere in the affairs of the Company - petition dismissed. - C.P. No.43/241/HDB/2017 - - - Dated:- 12-12-2017 - Shri Rajeswara Rao Vittanala, Member (Judicial) For the Petitioner : Dr. S.V. Rama Krishna, Advocate For Respondent Nos. 1 to 4 : Mr. N. Harinath Mr. D.V.A.S. Ravi Prasad, Advocates. For the Respondent No.5 : Ms. U.K. Gayathri, PCS ORDER Per: Rajeswara Rao Vittanala, Member (Judicial) The Present Company Petition bearing C.P. No.43/241 /HDB/2017 is filed by Dr.VenigaIla Naveen, U/s 241-244 of Companies Act, 2013 R/w Rules Il 34 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facturing, producing, processing, generating, accumulating, distributing, transferring, preserving, mixing, supplying, contracting, as consultants, stockists, wholesalers, retailers, jobbers, traders, agents, brokers, collaborators, of representatives, merchandising, marketing, managing, leasing, renting, utilizing of electricity, steam, power, solar energy, wind energy, -biomass energy, thermal energy, hydel energy, tidal energy and wave energy, and other conventional and non conventional and renewable energy sources, waste treatment plants of all kinds, and equipments thereof in India and outside of India and to carry on business of electrical engineers, and contractors, manufacturers, suppliers, of and dealers in electrical and other appliances, cables, dry cells, accumulators, and to generate, accumulate, distribute and supply electricity for which electrical energy can be employed and to manufacture and deal in all apparatus and things required for or capable of being used in connection with the generation, distribution, supply, accumulation, etc. 3) Authorized Share Capital Of the Company is Rs. divided into 50,000 equity shares of ₹ 10-/ each, which was sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t removed as and now attempting to Managing Director, remove him even as Director of the Company. This would expose the nexus and conspiracy of the self-interested background players misusing the short tempered nature of the 2nd Respondent and also her advanced age by unduly influencing her by dividing the brothers and mother against all canons of values, ethics, principles and even against the provisions of the law and indulged in wholesale fabrication of fake documents uploaded into ROC/MCA webportal as more clearly demonstrated herein. 7) The 2nd Respondent, being the head of the family and exercising exclusive cheque signing powers and the Petitioner is engaged in obtaining necessary permissions, approvals etc. from various Governmental Authorities such as Environmental Clearance, Power Regulator in Odisha, concerned Authorities and Ministries and also prepared Project Repolt and Viability Report, made applications to the Bankers for raising necessary funds for Financial Closure of the Project. 8) During the course of time, the Petitioner observed certain irregularities in Bank account operation and when he brought it to the notice of the 2nd Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the heading 'Occupation as housewife. Thus, it is a false and fabricated document from any reckoning that when the Circular Resolution claimed to have been passed was on 8TH December 2016 while the 'consent to act as Director was dated 9THDecember, 2016 and on the same day i.e. 9thDecember 2016, the Letter of Appointment was given by the 2nd Respondent and uploaded into ROC/MCA web portal on same day at 14.46 hrs. She is neither an Electrical Engineer, nor any professionally qualified person 12) The 1st and 2nd Respondent also indulged in showing another circular resolution u/s 175 of the Companies Act, 2013 from the existing registered office at 103, Royal Court Apartments, Road No. Il, Banjara Hills, Hyderabad - 500034 to SLN Lumbini Springs, Villa 6, Beside Botanical Gardens, Kondapur, Hyderabad - 500034 so that the complete control of the Company goes out of the control of the existing Directors i.e. the Petitioner and the 2nd Respondent only. There is no validly existing third Director but they have created fake documents to show that the Yd and 4th Respondents were Directors as stated above. 13) It is stated that the Petitioner, at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er signed only the Attendance Sheet sharp at 7.00 p.m. as per scheduled time and also noted clearly that none of the Directors were present till 7.30 p.m. In spite of this undeniable fact, if the Respondents indulge in further creation of fake and fraudulent documents, then that would be one more act of serious fraud and also liable for prosecution u/s 447 and 448 of the Companies Act, 2013 and the Petitioner reserves his right to launch appropriate criminal proceedings against the Respondents for the already done by them as demonstrated hereinabove. 16) The Petitioner vide his notice dated 28.1.2017 raised serious objections to the above notices addressed to both the 2nd and 4th Respondents clearly stating that the 4thRespondent is impersonating herself as. a Director of the Company as she was not appointed as such in the Company at all and she would be liable for consequences of fabricating statutory records contrary to facts and law u/s 447 and 448 of the Companies Act, 2013. The Petitioner also sent an email notice dated 15.2.2017 to the Yd Respondent that he was not a Director appointed on 2.11.2016 and he should be restrained from acting as Director in any manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Financial Year 2015-16 so far justifies the winding up of the Company under the provisions of the Companies Act, 2013 on just and equitable grounds but to do so would unfairly prejudice the Petitioner's interests and therefore the Petitioner is filing the present Petition by seeking to put an end to the ongoing acts of Oppression and Mismanagement by passing appropriate orders on the Reliefs sought herein. If the Respondents are allowed to act upon the fabricated documents showing that Yd and 4th Respondents as Directors of the Company, the petitioner apart from the Company in general would suffer immense loss and irreparable injury. 3. The Company petition is opposed by the respondent Nos. I 2 by filing counter dated 12th July, 2017. The following are their main contentions; a) It is stated that petitioner and third respondent are sons of second respondent. The Company was started by the 2nd respondent to help her eldest son, the petitioner herein, The petitioner used to be a Director and shareholding by holding 13 % in the Company. He was removed as a Director, vide a Board Resolution dated 22/12/2016, a fact, which is admitted by the petitioner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50, 00,000/- (Rupees fifty Lakhs Only). e) It is alleged that the petitioner has no source of income to claim to have invested an amount of ₹ 1,33,53,938/- (Rupees One Crore Thirty Three Lakhs Fifty Three Thousand nine Hundred and Thirty Eight only) In fact, the petitioner's flight tickets to India from USA had to be borne by his mother, the 2nd respondent herein. In fact, the above money was invested by the 2nd respondent to empower her eldest son. f) It is contended that 2nd respondent has raised numerous unsecured loans and sold various properties to raise an amount of over ₹ 20, 00, 00,000/- (Rupees Twenty Crores only) to invest in the 1st respondent Company. The petitioner has not invested any amount of his own. Moreover the 2nd respondent, despite her advanced age, has personally travelled to Odissa at numerous times, to personally oversee the project and to iron out any problems, while appointing numerous Consultants to assist her efforts, wherever necessary. The petitioner, on the other hand, under the influence of his 2nd wife, sold numerous properties, gifted to him by his mother, to fuel his lifestyle. He has also filed false suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdiction of this Tribunal. Moreover all resolutions passed by the Board have been within the confines of the law and are not illegal in any way. l) Therefore, the respondents prayed the Tribunal to dismiss the Company petition with costs. 4. The case was listed for final hearing on various dates, viz: 10.04.2017, 19.04.2017, 28.04.2017, 19.06.2017, 05.07.2017, 13.07.2017 and 28.07.2017, and it was adjourned on those dates in order to complete pleadings and to accommodate learned Counsels on either side. 5. Heard Dr.S.V.Rama Krishna, learned Counsel for the Petitioner and Mr. N.Harinath Mr.D.V.A.S.Ravi Prasad, learned counsels for the Respondent Nos. 1 to 4 and Ms.U.K.Gayathri, learned PCS for the Respondent No.5.And also carefully perused all documents filed in support of respective pleadings provisions of Company Law. 6. Dr.S.V. Rama Krishna, learned Petitioner, while reiterating the along with extant counsel for the various contentions raised in the Company Petition, has further submitted that the Company still committing several misconducts in contrary to its Memo and Articles of Association and the Companies Act, 2013. All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Institute of Company Secretaries of India, any other person other than a Director and Company Secretary, can attend a particular meeting by invitation. In the light of the above standard, the firm has assisted in conducting the meetings upon the specific request from the Chairman, and in recording the Minutes. The firm has deputed its staff to assist the Chairman of the meeting in conducting the meeting, which was done in line with the Companies Act, 2013. iv) It is further asserted that acts of respondent No.5 does not come under the gamut of oppression and mismanagement, as he has signed certain forms strictly in accordance with the Companies Act, 2013. Mere certification of e-forms in accordance with law does not fall under the purview of Oppression and Mismanagement. Therefore, the learned PCS submit that the Respondent No.5 has discharged his statutory duties strictly in accordance with law, and there is no deviation whatsoever and he is unnecessary dragged into this issue, and the Company Petition is not maintainable as against the Respondent No 5. 09. In the light of above discussion of case, the following broad issue arise for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor and in place appoint any other person as director in accordance with and subject to the Provisions of Section 284 of th Act. A Director shall not be required to hold any qualification shares as per Article 30. Three directors present in person or I of the total strength whichever is higher shall constitute the quorum for a Board Meeting as per Article-34. The powers of the director have been enumerated under Article-40. 12. got all requisite permissions to start the power plant and NTPC has also issued a power purchased agreement. There are no business activities so far, and the Company is funding by the 2nd Respondent from her family resources.When the Company itself has not commenced its real operations, and meeting all the expenditure from the family resources of second respondent, undue interference into the affairs of Company by making so many allegations of Mismanagement/oppressive by the Petitioner are not at all tenable, un-warranted and un-called for, thus and they are liable to be rejected out rightly. As stated supra, the petitioner has not invested any money and all the money invested in the Company comes from the family and head of family (second resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice and raise an objection for any decisions the Company propose to be taken but in the end, he is supposed to accept majority decision. By perusal of documents, I have no doubt in my mind that appointment of Yd 4th Respondents as Director and Addl. Director is legally done in accordance with law. All allegations with regard to their appointment are not at all tenable and they are liable to be rejected out rightly. As stated supra, the petitioner is also appointed by the second respondent and he has not produced any resolution as to how he was appointed but only produced Form 32 but making so many baseless allegations to the subsequent appointments. 14. As stated supra, as per article of the Company and law, a person who is going to be appointed as Director/ Addl. Director of Company need not hold any shares. There are two conditions prescribed under the act to be satisfied to appoint any person as a director. The first condition is to express ones consent to hold office as director, secondly such consent has to be filed with Registrar within 30 days of the appointment, in form DIR-12 along with Form DIR-2 as provided in rules of appointment and qualifications of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Respondent No.4 was given a letter of appointment dated 09.12.2016 (Page 144). However, the Petitioner has send an email dated 22.12.2016 (Pg 149 Annexure- P20) to the 2nd Respondent by stating that there was no resolution passed on 02.11.2016, appointing Dr.Praveen Venigalla (R-3) as Director and also rejected resolution dated 09.12.2016 appointing Mrs. HariPriyaTupiIi (R-4) as additional director. Therefore, it is clearly shows that the Petitioner is well aware of the above decisions appointing the Respondent Nos. 3 4 as Director and Additional director respectively. As discussed supra, the petitioner is entitled for a notice to convene any meeting of the Company and also for any decision(s) proposed by the Company. Therefore, the petitioner being a minority share holder can only express his opinion about majority decision(s) of the Company but he should accept the decisions finally taken by the majority. By perusal minutes of Board meetings in question including circular resolution, the views of petitioner were duly noted and passed resolutions in accordance with law. I also find that the meetings in question were duly conducted and impugned decisions taken in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem under the Articles of the company. Moreover, if the directors are supported by the majority of the shareholders in what they do, the minority shareholders can, in general, do nothing about it. 22. As stated supra the Company is closely held family Company, and elder son of the 2nd Respondent has filed the case by raising frivolous grounds. By virtue of impugned decisions the shareholding of the Petitioner was not at all affected but in order to set right the affairs of Company, which is at crucial stage, the petitioner was removed from the position Of MD and Director in accordance with law. As rightly pointed out by the respondents, when Company itself has not started its operations as per its object as mentioned in its memo and all funding of the Company is met through sources of family of second respondent, the question of oppression and mismanagement in the affairs of Company, even to examine, is too premature. And the petitioner's interest is not too much adversely affected especially being a minority share holders and the mother is head of family. The petitioner is legally and morally bound by the decisions taken by the second respondent, who is mother Of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
