TMI Blog2020 (3) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... pany. Therefore, in view of sub-rule (2) of Rule 4 of the Companies (Appointment Qualification of Directors) Rule 2014 appointment of at least two independent directors is not necessary. Hence non-disclosures of resignation of two independent directors will not affect the merit of the petition in any manner. The dispute between Ernest and Young and appellant company is pending before the Arbitral Tribunal hence the conversion of appellant company shall not affect the responsibility and liabilities of the appellant company - the appellant company has fulfilled the conditions for conversion and shortcomings pointed out by the NCLT are inconsequential. The special resolution dated 14.08.2017 for conversion of appellant company from public company to private company is approved. - Company Appeal (AT) No. 394 of 2018 - - - Dated:- 29-1-2020 - Justice Jarat Kumar Jain Member (Judicial), Mr. Balvinder Singh Member (Technical) And Dr.Ashok Kumar Mishra Member (Technical) For the Appellant : Mr Pankaj Yadav with Ms Varsha Yadav, Mr Sameer Yadav, Ms Priya Ranjan Dubey, Advocates. For the Respondent : Mr PS Singh, Sr Panel counsel with Ms Annu Singh and Mr Vibhav Singh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r notice. Hence EOGM held at 14.8.2017 at 12 Noon and concluded at 1 PM. In the Meeting the members of the appellant company have accorded their unanimous consent for conversion of company from public to private limited company. On 25.8.2017 in the prescribed form the intimation has been sent to the Registrar of Companies. Thereafter on 30.10.2017 the appellant company filed petition under Section 14(1) of Companies Act, 2013 before NCLT which was registered as CP No.71/14/ND/2017 (referred to as first petition). First petition was filed within three months from the date of passing of special resolution dated 14.8.2017. However, it was withdrawn when the NCLT on 6.12.2017 indicated that the petition for conversion can be filed only after expiry of three months from the date of passing of special resolution. Therefore, on 6.12.2017 the appellant withdrew the first petition and on 19.12.2017 appellant company filed second petition before NCLT which is registered as CP No.80/14/ND/2018. 4. The Petition is annexed with the certified copy of the Resolution passed in the EGM dated 14.08.2017, compliance of filing MGT 14 with the office of the ROC. Form NCLT No. - 3B was issued to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial resolution as per Rule 68(1) of NCLT Rules, 2016. Therefore the appellant withdrew the first petition on 6.12.2017 and filed 2nd petition on 19.12.2017. Thus the petition is well within limitation. 9. Learned counsel for the appellant further submits that the EOGM dated 14.8.2017 was convened by giving a shorter notice to all the shareholders and they have given their written consent which is annexed with the petition. The holding company i.e. VPS Healthcare Pvt Ltd vide Board Resolution dated 17.6.2017, Dr Shamsheer V.P., Managing Director and Mr. Hafiz Ali, Director of the company were severally authorized to act as representatives of the company to attend and vote in the Meeting of the appellant company. Such resolution has already been filed with the petition. 10. Learned counsel for the appellant also submits that NCLT has not considered that statutory auditors M/s Delloit Hasken and Sells resigned on 17.10.2016. However, new auditor M/s Dayanand Yadav Co was appointed as Tax Auditors on 2.9.2016 and statutory auditors on 17.10.2016. Hence, the new auditor M/s Daya Nand Yadav Co was working on the tax audit of the appellant company since 2.9.2016 and prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a public company into private company shall, not less than three months from the date of the passing of special resolution, be filed to the Tribunal in Form No.NCLT-1. It means such petition shall be filed after three months from the date of passing of special resolution. The appellant company has passed the resolution on 14.8.2017. 1st petition was filed on 30.10.2017 which was pre-matured. Therefore, and it was withdrawn on 6.12.2017 and Second petition was filed on 19.12.2017 i.e. after three months from the date of passing of special resolution. Thus the petition is well within limitation 17. As per record on 14.8.2017 Board Meeting was held at 11 AM and immediately thereafter for holding of EOGM a shorter notice was issued. All 8 shareholders have given their written consent for a shorter notice (See Page 80 to 86 of additional paper book) Then EOGM was held on the same day between 12 AM to 1 PM. In the EOGM resolution for conversion of appellant company from a public company to a private company was passed. 18. At the relevant date i.e. on 14.8.2017 the Section 101 of the Companies Act 2013 reads as under:- 101-Notice of Meeting (1) A general meeting of a comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly the complaint against M/s Dayanand Yadav Co made by MR. Aditya Kumar Bhandari has been closed by ICAI. 24. NCLT observed that after EOGM dated 14.8.2017 two independent directors of the company have resigned and this fact is not disclosed in the petition but confirmed latter only when objection was raised. In this regard we have considered the submission of learned counsel for appellant and we are in agreement that the appellant company is wholly owned subsidiary and unlisted public company. Therefore, in view of sub-rule (2) of Rule 4 of the Companies (Appointment Qualification of Directors) Rule 2014 appointment of at least two independent directors is not necessary. Hence non-disclosures of resignation of two independent directors will not affect the merit of the petition in any manner. 25. Learned counsel for the appellant has placed on record the No dues certificates obtained from Paul s Pure Pharmacy dated 1.5.2018, Medex India dated 17.8.2018, Rishi Kumar Srivastava dated 10.8.2016, Mr. Prabhat Kumar Srivastava dated 10.8.2016, Mala Srivastava for her husband Rajesh Kumar dated 10.8.2016, Aditya Kumar Bhandari dated 10.8.2016 (See at Page 1021 to 1027 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
