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2019 (6) TMI 641

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..... se in favour of the Petitioner and balance of convenience is also in favour of Petitioner and that if Interim Orders are not passed, Petitioner will suffer irreparable loss on the basis that if the Company which runs the hospital suffers bad name, the Petitioner will bear the negative image apart from losing valuable investments. The question of Company suffering bad name appeared to be based on de-empanelment of the hospital. Record shows (Annexure P8 of the company Petition - Diary No.8869 - Page 118) that the hospital had already been de-empanelled from the Mahatma Jyotiba Phule Jan Arogya Yojna on 28th February, 2018 itself. Thus, whatever harm had to take place on that count had already taken place. NCLT not only restrained the Respondents - Appellants from altering shareholding and from giving effect to the Resolution removing the Respondent - Petitioner as Director until further Orders, but also went ahead to pass Orders which are in the nature of mandatory Orders to cancel DIR 12 etc. which were not necessary. The Impugned Order is modified accordingly and the Order passed by NCLT shall be treated as Ad-Interim Order. - Company Appeal (AT) No.385 of 2018 - Dated:- 14-2-2019 .....

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..... petitioner may take up appropriate steps towards the same. List this matter on 03.10.2018 for further consideration. 4. Thus, the NCLT adjourned the matter to 3rd October, 2018 for further consideration. On the same date of 26.09.2018, the Writ Petition came up before the High Court Bench at Nagpur and the Hon ble High Court passed the following Order:- By way of present petition, the petitioner seeks a writ to the respondent no.1. The petitioner has sought a relief from this Court of directing the respondents to not to hold the General Meeting of the respondent no.1 Company, scheduled to be held on 22.09.2018. The respondent no.1 is a Private Limited Company. The perusal of the cause title would reveal that all the three respondents are either Private Limited Company or private individuals. By now it is settled principle of law that a writ under Article 226 of the Constitution of India would lie against the State or its instrumentality. In view of the law laid down by the Hon ble Supreme Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust .vs. V.R. Ruadni reported in (1989) 2 Supreme Court Cases 691, the writ would lie against .....

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..... such de-empanelment had taken place and in the said process of enquiry he had come to know that several irregularities pertaining to the management had taken place. The Respondent No. 2 who is a Managing Director of the company, as submitted by the petitioner, could not have created such a situation warranting the interferences of the Government authorities for the de-empanelment. The petitioner was making his own efforts to safeguard the interest of the Company and his investments. While the matters stood thus, the Respondent No. 2 had issued notice on 6th September, 2018 for the inclusion of an Agenda item to the Annual General Meeting for the removal of petitioner as the Director of the Company. Subsequently, notice was issued to the members by the Respondent No. 3 proposing a resolution for the removal of the petitioner as the Director. The explanatory statement attached to the said notice, evidently does not contain any reasons, let alone tenable reasons, for the removal of the petitioner as the director of the Company. In exercise of his rights as substantial shareholder of the company, the petitioner had approached this Forum for an appropriate relief on 19th September, 201 .....

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..... e Appellants - original Respondents. The case Original Petitioner put up before NCLT to seek the ad-interim orders , we can see in the Impugned Order itself. Although at the time of arguments before us, the Counsel for Respondent - original Petitioner tried to say that he had sent Notice by speed post and e-mail before Impugned Order was passed by the learned NCLT, the Counsel accepted that the Impugned Order does not show anywhere noting that Notice had been served either by the party or by the NCLT on the Appellants - original Respondents before passing such Order at 4.30 p.m. 6. The Appellants in the Appeal are claiming and it has been argued for the Appellants that the Appellant No.1 Company was Incorporated in 2007 and commenced operations in 2012. According to the Appellants, the Respondent - original Petitioner was Chairman-cum-Managing Director of the Company and it was the Respondent - original Petitioner who was responsible for management of day-to-day affairs and finances of the Company. The Respondent - Petitioner, a CA, having financial expertise and knowhow was solely in-charge of the finances and statements of the Company. In spite of specific understanding amongst t .....

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..... The learned Counsel for the Respondent accepted that the Respondent was Managing Director in the Company since before and till November, 2017. According to the Counsel for Respondent, the Respondent had invested about 12 Crores of rupees in the Company against hardly one Crore on the part of the Appellant No.2. The Counsel stated that the Respondent earlier had 50% shareholding and Appellant No.2 had 50% shareholding. The Appellant No.3 is the wife of Appellant No.2. The Counsel stated that out of the 50% shareholding of the Respondent - original Petitioner, due to certain representations made by the Appellant No.2, the Respondent transferred 17% of his shares to the Appellant No.2 because of the relations and understanding between them. The Counsel claimed that the Respondent - original Petitioner had resigned in November, 2017 on his own as he could not bear bungling being done by the Appellants. The Counsel for Respondent - Petitioner referred to Notice, which was sent by original Respondent No.2 (Appellant No.2) for removal of the Respondent - Petitioner as Director, copy of which has been filed at Page 401 (Diary No.8869) and the subsequent Notice issued by original Respondent .....

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..... mediate Interim Orders. In such circumstances, NCLT would be justified in passing Interim Orders, if the case of extreme urgency is made out. Such Orders would and should be subject to confirmation on hearing the other side for which opportunity should be left open. In the present matter, NCLT has noted that the Petitioner moved NCLT for Ad Interim Orders but the Orders as have been passed, do not purport to say that they are Interim Orders and the original Respondents (Appellants) are to be heard. When the Hon ble High Court itself in its wisdom had on 21.09.2018, preferred to issue Notice and in the meanwhile, directed that the meeting may go on but the outcome therein shall not be given effect till next date, the NCLT could have itself adopted similar recourse and the Order could have stated that the Resolution as may have been adopted would remain stayed till the next date. Instead of that, NCLT simply pronounced magic words that there was a prima facie case in favour of the Petitioner and balance of convenience is also in favour of Petitioner and that if Interim Orders are not passed, Petitioner will suffer irreparable loss on the basis that if the Company which runs the hospi .....

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