TMI Blog2017 (11) TMI 1890X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is a new provision. There are no error with the impugned order which has recorded proper reasons - impugned order upheld - Company appeal dismissed. - Comp. App(AT) No. 297 of 2017 - - - Dated:- 6-11-2017 - Justice A.I.S. Cheema Member (Judicial)Mr. Balvinder Singh Member (Technical) JUDGMENT 1. Heard learned Counsel for the parties. This is a matter where the Appellants/Original Petitioners filed Company Petition No. 1/2016 u/Sections 241, 242, 243 244 of the Companies Act, 2013 (Act in brief) claiming oppression and mismanagement before the National Company Law Tribunal (in short NCLT), Guwahati Bench, Guwahati. In the array of parties, inter alia, the Statutory Auditors- Respondent Nos. 5 6 were added. The said Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Auditors, while preparing Annual Financial Report of the F.Y. 2014-15 which error was accepted and their bonfides can be seen from the Audited Tax Audit Report which was submitted soon after the Annual Financial Report. The learned Counsel for the Respondent Nos. 5 6 has submitted that these Respondents have already resigned from the assignment of being Statutory Auditors of the Company. The learned Counsel pointed out prayer xv, which was made in the Company petition seeking removal of M/s. Kanoi Associates, Chartered Accountants to which the Respondent Nos. 5 6 belong. It is stated that as these Respondents have already resigned, the question of removal does not arise. It is stated that prayer xvi of the Company Petition sought dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion that the management or conduct of the affairs of the company are being conducted in a manner prejudicial to the interests of the company or its members or depositors, file an application before the Tribunal on behalf of the members or depositors for seeking all or any of the following orders, namely:- (a) to restrain the company from committing an act which is ultra vires the articles or memorandum of the company; (b) to restrain the company from committing breach of any provision of the companys memorandum or articles; (c) to declare a resolution altering the memorandum or articles of the company as void if the resolution was passed by suppression of material facts or obtained by mis-statement to the members or depositors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) shall be as under: (a) in the case of a company having a share capital, not less than one hundred members of the company or not less than such percentage of the total number of its members as may be prescribed, whichever is less, or any member or members holding not less than such percentage of the issued share capital of the company as may be prescribed, subject to the condition that the applicant or applicants has or have paid all calls and other sums due on his or their shares; (b) in the case of company not having a share capital, not less than one fifth of the total number of its members. (ii) The requisite number of depositors provided in sub-section (1) shall not be less than one hundred depositors or not less than such percen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the following, namely: - (a) public notice shall be served on admission of the application to all the members or depositors of the class in such manner as may be prescribed; (b) all similar applications prevalent in any jurisdiction should be consolidated into a single application and the class members or depositors should be allowed to choose the lead applicant and in the event the members or depositors of the class are unable to come to a consensus, the Tribunal shall have the power to appoint a lead applicant, who shall be in charge of the proceedings from the applicants side; (c) two class action applications for the same cause of action shall not be allowed; (d) the cost or expenses connected with the application for class action s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure as to when and how it can be invoked. It is necessary to comply the requirements laid down before it is admitted. Procedure after admission is also laid down. Again, the Section is enforced w.e.f. 1st June 2016 and Annual Financial Report questioned in the petition is of 2014-15. Apart from this, the Appellants in the petition filed in November 2016 did not invoke section 245 of the above act which has a procedure of its own. In absence of invoking procedure under Section 245, the Appellants cannot import action possible under Section 245, in a proceeding under Sections 241, 242 of the Act. If Appellants want to rely on Section 245, they will have to do needful under Section concerned and satisfy the requisites. 6. Considering ..... X X X X Extracts X X X X X X X X Extracts X X X X
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