Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2017 (12) TMI 1700

..... itioner 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. 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 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 a .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... Dr. Rama Krishna Prasad Power Private Limited (hereinafter referred to as "Company') was incorporated in the name of "Dr. Venigalla Ramakrishna Prasad Power private Limited" under the Companies Act, 1956 on 27thMay, 2009 as a Private Limited Company, and subsequently Company's name was changed to "Dr. Rama Krishna Prasad Power Private Limited" on 16.02.2011 which was duty registered with the Registrar of Companies, Hyderabad. 2) The Company was established with main object to carry on the business of manufacturing, 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 eng .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... ons from Government Authorities / Departments and procured land admeasuring Ac.57.675 in Village Sriramchandrapur under ChhatrapurTahasil in the District of Ganjam in the State of Odisha through the Orissa Industrial Infrastructure Development Corporation (IDCO), Bhubaneswar. Any normal people would be highly thankful for huge sacrifices and efforts of the Petitioner but in his case it proved otherwise, and the conspiracy was hatched to throw him out of the project. Accordingly, he was first 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 necess .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... l Director, that too by way of a purported Circular resolution passed on " 8th, under the category "Professional". The surprising thing was that the 'consent to act as Director of the Company in Form DIR-2 dated 9th December 2016 i.e. one day after the purported appointment shown in the Letter of Appointment dated 9th December, 2016. Another shocking thing is that in the said Form DIR-2, the 4th Respondent declared herself in st. no. 9 under 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, Banjar .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... .2017 is signed by both the 2nd and 4th Respondents inter alia stating to consider removal of the Petitioner as Director of the Company. However, on this day of 4.2.2017, no meeting was held and no decisions were taken there at as both the 2nd & 4th Respondents have abandoned the meeting place with a sense of shame as they realized their follies of wholesale creation of fake and fabricated documents as stated above. The Petitioner 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 .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... s of oppression and mismanagement within the ambit and scope of Section 241-244 of the Companies Act, 2013. 19) The large number of fabricated documents uploaded into the ROC/MCA web portal, illegally showing two outsiders shown as Director/Additional Directors of the Company and the failure of the 2nd Respondent in getting the Annual Accounts finalized and convene and conduct the AGM for the 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 i .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... about a Rupees One Crore to the accounts of the Company and the petitioner along with wife misused Company funds. The petitioner's wife also took about ₹ 3, (Rupees Three Crores Only) allegedly to meet the expenses of the public hearing at Odessa for the project. However the actual expenditure incurred was less than ₹ 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 personal .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... the petitioner has resorted to slandering his own mother and other family members to enable his depredations. He has disregarded the fact that his shareholding has not been altered and that there is no mis- management in the Company warranting to invoke 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 var .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... an. Hence, the duty cast upon the Respondent No.5 is only to assist in conducting EGM held on 02.11.2016 only. iii) As per Secretarial Standard 2 (SS-2) issued 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 maintai .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... olution at a General Meeting, may remove any director and in place appoint any other person as director in accordance with and subject to the Provisions of Section 284 of thé 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 fro .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... ity shareholder, is entitled for 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 appointmen .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... 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 accor .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... ver, 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 petitioner and Chairperson also. The petitioner ha .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||