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TMI Blog2019 (6) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No.6154 of 2018 in the High Court of Judicature at Bombay, at Nagpur Bench. Initially, the Writ Petition came up before the High Court on 21.09.2018 (see Reply - Diary No.8635 - Page 64). The High Court passed the following Order:- "Heard Advocate Shri Dewani for the petitioner. It appears that National Law Company Tribunal is presently not in position to take up the controversy. The petitioner apprehends removal from Board of Directorship of respondent no.1 - company in meeting scheduled on 22-9-2018. Petitioner also has pleaded that after such removal, share holding pattern may itself be drastically changed to reduce the petitioner to minority. In this situation, notice, returnable on 26-9-2018. Though the meeting may go on, outcome therein shall not be given effect to till next date." It is stated that as the Bench of NCLT due to vacation was not available, the Writ Petition was required to be filed and taken up before the High Court. 3. The matter came up before NCLT on 26.09.2028 at 10.30 A.M. This was at Mumbai and NCLT passed the following Order at 10.30 A.M.:- "AT 10.30 a.m. The professional appearing for the petitioner requested this bench for ad int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain at 4.30 p.m. and proceeded to pass the following Order:- "At 4.30 p.m. When the matter was taken up in the morning a direction was given to the petitioner to inform the Hon'ble High Court that this Tribunal would take up the matter on 03.10.2018. In view of the rejection of the Writ Petition by the Hon'ble High Court, this matter was heard in the afternoon on an urgent motion by the petitioner. Heard Shree Mahesh A. Athavale, PCS. The contention of the petitioner is that the petitioner holds 33% shares in the company and apart from that he had advanced unsecured loans for the smooth functioning of the company. Further, the petitioner was the original signatory to the Memorandum along with the Respondent No. 2 and another person. The company was incorporated in the year 2006. Subsequent to the incorporation, the objectives, as mentioned in the Memorandum has been carried out, the construction of the hospital is completed and is functioning till this date. Sometime in the middle of 2017 the petitioner on the advice of the respondent No 2 and for the smooth functioning and betterment of the company and to facilitate bank finances, had transferred about 17% shares to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition. The petitioner, left with no other choice had moved urgent motion before this Bench praying for ad-interim orders. We have considered the contentions, statements made by the petitioner and we are convinced that there is a prima facie case in favour of the petitioner and balance of convenience is also in favour of the petitioner and if interim orders are not passed, the petitioner will suffer irreparable loss which cannot be compensated in terms of money for the reason that in the event the company which runs the hospital suffers bad name, being the director and substantial shareholder of the company, the petitioner has to bear the negative image apart from losing valuable investments made in to the company. Therefore, in this background of the matter, we hereby direct the respondent not to alter the shareholding pattern of the company and also not to give effect to resolution, if any, removing the petitioner as director of the company until further orders. In the event, the respondent had uploaded the resolution removing the petitioner as a director of the company, respondents are directed to immediately remove/ delete the said resolution from the MCA postal, the DIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for from the Respondent - Petitioner but he did not respond and resigned from the post of Chairman of the Company and the Appellant No.2 came to be nominated as Chairman/CMD on 24.11.2017. According to the Appellants, various letters were sent to the Respondent - original Petitioner for the amounts outstanding, but he did not respond. Ultimately, it was decided that during the AGM scheduled on 22.09.2018, issue of removal of Respondent from directorship should be discussed. Appellants claimed that Respondent falsely alleged financial mismanagement by the Appellant No.2 and moved NCLT with the Company Petition as well as filed Writ Petition claiming that the General Meeting dated 22.09.2018 may not be held. The Appellants claimed that the learned NCLT did not consider maintainability of the Petition and by Order, which if it was to be passed, should have been Interim Order, granted final relief to the Respondent contrary to the law. Order in the nature of mandatory permanent injunction has been passed without affording any opportunity to the Appellants and is in complete violation of principles of natural justice. According to the Appellants, the Respondent obtained the above Impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory directions passed in the Impugned Order are not material as they are not effective as no DIR 12 has actually been submitted although the Respondent - original Petitioner has been removed by Resolution dated 22.09.2018. 10. We have gone through the Company Petition and its Annexures which have been filed with Diary No.8869. We have also gone through the Appeal and grievances being raised by the Appellants - original Respondents in the Appeal as well as Rejoinder. 11. Going through the material, on one hand, the Company Petition filed by the Respondent - original Petitioner is showing various acts on the part of Appellants 2 and 3, who are husband and wife and on the other hand, the Appellants in their Appeal and Rejoinder are pointing out various acts on the part of Respondent - original Petitioner as grievances of both sides against each other. Keeping the fact in mind that the learned NCLT is yet to consider and analyse the cases of both sides, we refrain from referring to the allegations and counter allegations in details. Brief reference to the rival cases is already reflected in the Impugned Order and arguments of the parties against each other. We are not making detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are in the nature of mandatory Orders to cancel DIR 12 etc. which were not necessary. 12. We are not setting aside the Impugned Order as a whole as, going through the rival cases, it appears to us that both sides would require explaining to be done as interest of Company as a whole is to be protected. We pass the following Orders:- ORDER A) For the above reasons, we set aside the portions of Impugned Order (highlighted and marked 'B' in para 5 - supra) where it is directed that if the (original) Respondents have uploaded the Resolution, they should remove/delete the same from MCA portal and that DIR 12 must be cancelled. B) As regards the other directions (highlighted and marked 'A' in para 5 - supra) where NCLT has directed the (original) Respondents not to alter the shareholding pattern of the Company and also not to give effect to the Resolution, if any, removing the original Petitioner as Director of the Company, we set aside the words suffixed "until further orders". We direct that rest of this direction of NCLT (highlighted and marked 'A' in para 5 - supra) shall be treated as Ad-Interim Orders which shall remain in force till Appellants - original Respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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