9911796707
TMI Blog2019 (4) TMI 1802X X X X Extracts X X X X X X X X Extracts X X X X ..... with interest per annum. The Respondents shall further be instructed to continue making the payment of remuneration from current date on monthly basis. ii. R-1and R-2 shall be instructed to pay the due remuneration of Rs. 20,000/- per month to P-2 from September, 2013 till date along with interest @12% per annum. The Respondents shall further be instructed to continue making the payment of remuneration from current date on monthly basis. 2. Brief facts raising to the Interlocutory Application (IA) and issue involved therein as described in the IA are as stated under; 1. Mr. Girish Jetly (Petitioner No. 1) is one of the promoter director and shareholders of the Company, holding 10,687 equity shares of Rs. 100/- each, constituting 48% of total issued capital (42.75% as per the Audited Balance Sheet of the Company of Financial Year 2016-17 and further allotment of shares to Respondents is being challenged in the original Company Petition in then CLB Bench) jointly with Mr. Vivek Jetly (Petitioner No.2 and other Petitioner of the Company Petition No. 116 of &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Bank of India are enclosed for reference as Annexure-IV. 8. The Petitioners enclosed a copy of the company's bank statements with Union Bank of India from 11. 11.2011 till 18.01.2013 i.e. salaries paid to Petitioner No. 1 and 2 has been annexed as Annexure-A. 9. It is further contended that the Respondents (R-2 and his family members) were also getting the monthly remuneration as whole-time directors along with P-1 and P-2 which is also reflected in the bank statement of the Company as per Annexure-IV which is being continuously paid to them. Annual Reports of the Company for the Financial Years 2014-15, 2015- 16 and 2016-17 indicate the remuneration to Mr. Donald Lyall (R-2) and Shannon D Lyall (R-2's son) as per Rs. 4,80,000/- per annum and Rs. 2,40,000/- per annum respectively. A copy of the Annual Reports of the Company for the Financial Years 2014-15, 2015-16 and 2016-17 are enclosed for reference. Annexure- VI. 10. It is further contended that consequent to the admission of the present Company Petition No. 116 of 2013 by the then Hon Me Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not attending the Board Meetings due to his ill health. It is also contended that the Petitioner No.1 is not having vision since last 8-10 years and had also undergone to eye surgery as well as continuous treatment for the same. In support of this, a certificate dated 25.10.2013 issued by Dr. Madhavi J. Sheth, Vadodara, confirming loss of vision, has been annexed with the present I.A. It is further contended that the provisions of the Companies Act, 2013, do not regulate the payment of remuneration to any Non Functional & Ordinary Director of a Private Limited Company. Therefore, it is up to the Board of Directors of such Private Limited Company to decide whether any remuneration should be paid or otherwise to such Non Functional & Ordinary Director. Thus, the decision of the Board of Directors of the Company to not to pay remuneration to such non- functional/ ordinary director is proper. It is further stated that such resolution was passed in the meeting of the Board of Directors dated 16.10.2013, which was held in accordance with provisions of the Companies Act. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p;managing the whole affairs of the company, putting all his energy and hard work for sustaining and developing the Company's business and no other members of the board, including Respondents 3 and 4, are getting any remuneration / salary from the Company. It is further stated that the statements as audaciously made at para-6 to 8 of the present I.A. pertaining to receipt of remuneration till 2013, would not entitled to such erring Petitioners who are fighting against the company and doing competitive business against it and still on other hand claiming for remuneration in 2018, for all such years. The present tactic and pressure imposed upon the company and on respondents with only motive to pressurize the Respondents and to gain illegal benefits and thereby sabotaging the affairs of the company. It is further stated that the remuneration cannot be claimed as a matter of right in the petition of oppression and mismanagement and not to pay remuneration to delinquent officer/director pending the company petition is within the domain/ prerogative of the management and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l submission made before us on the question of grant of relief being sought for in the present application. 5. We further perused the documents annexed with the present Company Petition as well as reply and documents filed by the opposite party. 6. As per material available on record, it is undisputed position in the matter that the respondent company had passed a Board Resolution to remove the petitioner from the Directorship of the company, which has been done subsequent to filing of the present Company Petition before the Court, i.e., erstwhile Company Law Board, wherein the Company Law Board, vide its order dated 31.10.2013, has pleased to issue following directions to the Respondents; a. The EOGM scheduled on 2/11/2013 may be held as per schedule. However, the resolution to the extent removing the petition as director will not be implemented until the next date fixed. b. Respondent will provide inspection of the documents along with the consulting Company Secretary to the Petitioner, for which petitioner will serve an advance notice of 7 days indicating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking payment of remuneration to the petitioner No.2 allegedly on such ground that its shareholding stood transferred, as he was no longer shareholder of the company. However, such being a dispute question of facts is now sub judice before this Court, for consideration in accordance with law. 9. By considering the above stated contentions, we examined the relevant provisions of the Companies Act,2013, specifically Section 197 of the Companies Act, which allows a company to pay remuneration to its Non-Executive Director(s) either by way of a monthly payment or at a specified percentage of the net profits of the company. The Company is, however, not obligated to remunerate its Non- Executive Director(s). Further, the section 197 of the Act provides that the remuneration payable to directors who are neither managing director nor whole time directors, shall not exceed- (i) one percent of the net profits of the Company, if there is a managing or whole time director or manager, (ii) three percent of the net profits in any other case. The Additional commission, apart f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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