TMI Blog2019 (4) TMI 1861X X X X Extracts X X X X X X X X Extracts X X X X ..... rector on 1.1.2016 which is contrary to the provisions of Section (2) of Section 536 of the Companies Act, 1956 and therefore, we are of the view that after winding-up initiation of proceedings, the Appellant-Company had no power to pass a resolution on 27.3.2018 appointing the appellant No.2 as whole-time Director and authorizing him to sign and execute affidavits, applications, etc. before any Court/Authorities and also in pending matters by or against the company. The authorization and induction of appellant No.2 as Director on 1.1.2016 and resolution dated 27.3.2018 passed by the appellant No.1/Company authorizing appellant No.2 as a Director of the Company and delegating its power and authorizing him to file Company Appeal is without permission of the Company Court as required under Section 536 (2) of the Companies Act. Such an authority is not recognized under law - appeal dismissed. - Company Appeal No. - 2 of 2019 - - - Dated:- 11-4-2019 - Hon'ble Pankaj Kumar Jaiswal, And Hon'ble Rajnish Kumar, JJ. For the Appellant : Akhilesh Kumar Kalra, Avinash Chandra,Rahul Tripathi For the Respondent : Pritish Kumar, Savitra Vardhan Singh, Shailendra Srivast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and immediate handover, as directed above. 75. List this case on 02.04.2019. 76. A copy of this order shall be supplied by office immediately to the Official Liquidator of this Court as well as the Senior Registrar of this Court without any costs. 3. The appellant-Company aggrieved by the aforesaid order has filed this Company Appeal/Special Appeal under Section 483 of the Companies Act, 1956 read with Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 on 25.2.2019. 4. On 6.3.2019, this Court passed an order that all the parties shall maintain status quo as it existed on that day. On 8.3.2019, while extending the aforesaid order, it directed that the appellants shall not alienate anything within their domain and not create any third party rights and respondents will not proceed any further in the matter. 5. A preliminary objection has been raised regarding maintainability of the appeal on behalf of respondent No.1/Reserve Bank of India on the ground that the petition for winding-up had been instituted by the Reserve Bank of India under the power conferred under Section 45-MC (1) of the RBI Act. Institution of winding-up procedure provided in Section 45-M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which allege that the appellant No.2 is a shareholder and is actively involved in the management have not been sworn at all. Hence, the appeal having been instituted without authorization, not being duly verified and not being in the prescribed form and in gross violation of Rule 21 of the Company (Court) Rules, 1959 and relevant provisions of the Code of Civil Procedure, 1908. 10. Learned counsel for the respondents has drawn our attention towards resolution dated 27.3.2018 which is filed as Annexure No.R2 alongwith the reply to the preliminary objection filed by the appellant and submitted that the appellant No.2/Satish Kumar Singh has not granted/delegated his power to Dinesh Shukla. As per resolution (Annexure - R2), the appellant No.2 was appointed as whole-time Director w.e.f. 27.3.2018. The aforesaid resolution authorized the appellant No.2 to execute affidavit and sign a vakalatnama on behalf of the company. It does not authorize appellant No.2 to delegate his power to Dinesh Shukla (pairokar) to file an affidavit on behalf of appellants. Later on, a better affidavit has been filed by appellant No.2 verifying the contents stated in paras 1 to 6 of the reply. As per reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving substantial interest in the outcome of the appeal and further the affidavit has been sworn by the person duly make it clear that in the case, the pairokar has nowhere stated that he has been authorized by appellant No.2. It has been specifically stated that he has been authorized to file and swear the affidavit. Thus, sufficient compliance of the provisions has been made in respect of preliminary objection No.2. 14. His contention is that the winding-up petition has been filed under the provisions of Section 45 MC of RBI Act and as per sub- Section (4) of Section 45 MC, provisions of Companies Act would be applicable and as the provisions of Sections 433 (e)/439 of the Companies Act would be applicable, therefore the company appeal filed by the appellants is very much maintainable. In support of his submissions, he has relied upon the judgment of the Apex Court passed in the case of T. N. Kalyana Mandapam Assn. v. Union of India and others [(2004) 5 SCC 632 para 47] and prayed for dismissal of the preliminary objections. 15. We have heard learned Senior Counsel for the respective parties at length and perused the record. 16. Provisions of Section 45-MC of the RBI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leave to any other person duly authorised by the petitioner to make and file the affidavit. 17. Provisions of Chapter IV (Rules 9 to 12) of Allahabad High Court Rules, 1952 read as under:- Chapter IV - Affidavits and Oath Commissioners 9. Full particulars of persons and places to be given -- An affidavit shall fully describe the person swearing it with such particulars as will ensure his clear identification such as his full name, his age, the name of his father, his religious persuasion, his rank or degree in life, his profession, calling, occupation or trade and his true place of residence. Any person or place referred to in an affidavit shall be fully described in such manner as to enable his or its identity to be clearly fixed. 10. Persons who may make affidavits -- Except as otherwise provided by law or by these Rules or by order of the Court, an affidavit may be sworn by any person having knowledge of the facts deposed to therein. Two or more persons may join in an affidavit, each deposing separately to such facts as are within his knowledge. 11. Form of affidavit-- When the deponent speaks to any facts within his own knowledge, he mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same. ORDER XXIX : SUITS BY OR AGAINST CORPORATIONS 1. Subscription and verification of pleadings -- In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the security or by any director or other principal officer of the corporation who is able to depose to the facts of the case. 19. The Company Petition was filed by the respondent-Reserve Bank of India under Part VII of the Companies Act, 1956 in exercise of its power conferred under Section 45-MC of the RBI Act. The provisions of Section 45MC of the RBI Act itself make clear that whenever the Reserve Bank of India is satisfied with the grounds mentioned in Section 45 MC (1), it can file a petition under the provisions of Companies Act, 1956. The provisions with regard to winding-up of a company are governed by the provisions of Companies Act, 1956. 20. Chapter III-B of the RBI Act provides for regulating Non- Financial Companies. In the year 1997, by virtue of Act No.23 of 1997, a further provision of Section 45-MC was inserted and the Rese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dated 19.2.2019 issued by the Office of Official Liquidator with regard to taking of charge, Satish Kumar Singh has been mentioned as Director of the Company. Further, vide resolution dated 27.3.2018 (Annexure -RA2) passed by the Board of Directors of the Company, Satish Kumar Singh, whole-time Director of the Company is authorized to deal with the Court proceedings, engage counsel, and sign and execute Vakalatnama before any Court in the legal proceedings. In the instant case, in para - 1 of the affidavit filed with Appeal provides that the deponent has been authorized to file and swear it. The resolution on which much reliance has been placed by the appellants has been passed after passing of winding-up order by the learned Company Judge after raising preliminary objection on 8.3.2019. A better affidavit in support of an application for leave to appeal has been filed by the appellant No.2 on the ground that the deponent/Appellant No.2 holds 37,120 equity shares in the company and he is also holding a key managerial post of the company as per records of the Registrar of Companies. 24. The better affidavit is only confined to the prayer seeking leave to appeal. It has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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