TMI Blog2020 (5) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the first petitioner that he cannot be removed by the company, as per extant articles of association of the company, is not tenable and baseless. And the company is entitled to remove any member for misconduct, mismanagement on the part of a member. Therefore, the annual general meeting held on November 21, 2012 has rightly removed the first petitioner from the membership as per law. So far as the contention of the respondents that, that the issue became final on rejection of earlier company petition by the then Company Law Board and thus it became final and the instant company petition is not maintainable, since the Company Law Board has rejected the case by granting liberty to the petitioner to file fresh company petition in accordance with law. The petitioners are not the members of the company and thus they have no locus standi to maintain the main company petition for the alleged acts of oppression and mismanagement made in the company petition. Therefore, the main company petition is liable to be rejected as not maintainable and thus no necessity to consider various contentions raised by the petitioners - application rejected as not maintainable. - C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case on merits of case. Aggrieved by above order, the respondents herein have filed W. P. No. 1780 of 2019 (GMRES) before the hon'ble High Court of Karnataka. Accordingly, the said writ petition was disposed of by an order dated February 21, 2019 by, inter alia, directing the Tribunal to dispose of the preliminary issue of maintainability if the respondent/petitioner filed preliminary objection. Aggrieved by the above order, the petitioners herein have filed W. A. No. 955 of 2019, which was ultimately stated to have been withdrawn by the appellants and thus, we are deciding the case with regard to the maintainability of case. And also both learned counsels have stated that there are no cases pending on the file of the hon'ble High Court of Karnataka with regard to the instant case. 3. Brief facts of the case leading to filing of the instant company petition, which are relevant to the issue in question, are as follows : (1) M/s. Evangelical Trust Association of South India (ETASI) (which is referred to as company hereinafter) is an association incorporated on July 31, 1972 as non-profit company, under section 25 of the Companies Act, 1956. As per article 12 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appointed M/s. Chandran and Raman, Chartered Accountants, Bangalore to conduct the special purpose audit and thus submitted the special audit report dated September 18, 2012 to the management committee. In order to discuss fraudulent activities, as per the special audit report, respondent No. 4 issued a notice dated September 5, 2012 enclosing therewith agenda and secretary report fixing annual general meeting of the company on September 27, 2012. The report spread light on the fraudulent acts of respondents Nos. 2 to 5 and in the annual general meeting held on September 27, 2012 majority members were present in the annual general meeting of the company. Due to the discussion on issues relating to the appointment of a subcommittee and need for respondent No. 2 institutions to repay the money siphoned off, etc., there were heated arguments and respondent No. 2 and others walked out. The annual general meeting was therefore adjourned. The secretary, being respondent No. 4 of the committee, circulated the minutes as per practice among the members. Respondent No. 2, with ulterior intention on October 18, 2012 circulated a concocted minutes of the annual general meeting held on Septem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual general meeting held on November 21, 2012 conduct the subject-matter when such an agenda was never circulated which shows that forgery and fraudulent manipulation of minutes has been done. (7) It is alleged that with the collusion of professionals, the respondents tried to show that the petitioners are not members at all and took a stand that the actual members are only four, i. e., petitioner No. 1, respondents Nos. 2, 3 and 5 and others, i. e., Dr. Michael Srinivasan, Rev. Samit Mishra, Rev. Simon Jothi, Annie Cherian, Mr. Prabhudas, Mr. Suraj Komaravalli, Mr. C. P. Raju ; are the constituent members and of whom the petitioners had represented which was totally false. In fact they have not even met the quorum requirements, at both the alleged meetings, i. e., September 27, 2012 and November 21, 2012 which clearly shows that they have illegally manipulated all the documents relating to the membership to suit their mala fide intentions to oust the petitioners from their member ship. (8) It is also stated that the subsequent annual returns filed by the respondents in collusion with the professionals also shows that the petitioners are not members at all. This act shows tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponse dated October 4, 2018 on the maintainability of the above petition, and to the office note, by, inter alia, contending as follows : (1) It is stated that on May 30, 2014 petition under sections 397 and 398 of the Companies Act, 1956 along with various other provisions of law came to be filed by the present petitioners in the hon'ble Company Law Board, along with Mr. Subhash Bhosle, and Rev. Sunil Dandge, who claimed to be members of the company. A copy of the said petition, while it was unnumbered was served on respondent No. 1, pursuant to which respondent No. 1 entered appearance before the hon'ble Company Law Board and filed a maintainability application, not only questioning the qualification of the said petitioners under section 399 of the Companies Act, 1956 but also the affidavits that were doctored and filed in support of the said petition. The Company Law Board, vide its order dated November 27, 2014 was pleased to dismiss the above unnumbered petition IND/735/2014. (2) Subsequently, the instant petition is filed by only three out of five, dropping the names of Mr. Subhash Bhosle and Mr. Sunil Dandge earlier petition. It is stated the earlier petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where pendency of O. S. No. 26465 of 2013 on the files of the Additional City Civil Judge, Mayo Hall, Bangalore has not been disclosed. The petitioners in the present petition, at paragraph VII claim that there are 10 members in the company. Contrary to this at paragraph II (2), the petitioners claim that there are 12 members in the company. This self-contradictory statement clearly demonstrates that the claim of the petitioners that they are qualified to file the petition is totally false and the petition is liable to be dismissed. (6) It is also stated that the petitioners are guilty of suppression of material facts. In order to mislead the registry, the petitioners have not disclosed the pending suit O. S. No. 26465 of 2013, which is pending before the hon'ble City Civil Court, Bangalore which ought to have been mentioned specifically in paragraph VIII of the petition. Perhaps with an intent to wriggle out of the issue of nondisclosure, have quietly enclosed copy of the said suit as an annexure to the petition. But this does not absolve them of their duty to disclose in text of the pleadings which is supported by affidavits. The said suit which is prior to the filing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m other reliefs. While the defendants evaded summons, the petitioners filed the earlier CP and the respondents realized that the petitioners were falsely claiming themselves as members of the company. Accordingly, the suit was amended to include the names of Mr. Charles Prabhakar, Mr. Simon Jothi, Rev. Sunil Dandge, Mr. C. P. Raju and Mr. David K. Sarma as respondents. The order sheet of the said proceedings clearly states that Mr. B. M. Arun, learned counsel for the petitioners filed vakalath for the first defendant-Mr. Michael Srinivasan and the fifth defendant-Mr. S. M. Dinakar. The second and third defendants, namely, Mr. Subhash Bhosle and Rev. Samit Mishra were placed ex parte on November 20, 2014 and January 13, 2015 respectively. (10) On February 6, 2017 Shri B. M. Arun, learned counsel for the petitioners filed vakalath for defendants Nos. 6 and 7 namely Mr. Charles Prabhakar and Rev. Simon Jothi whereas defendants Nos. 4, 9 and 10 were placed ex parte. Despite having entered appearance by counsel, the said defendants did not choose to file the written statement and evidence on behalf of respondent No. 1 was tendered by Mr. Aruldass Gnanamuthu respondent No. 3 herein on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arun, learned counsel for the petitioner has again reiterated the various averments made in the company petition, and also filed written arguments, and thus urged the Tribunal to decide the case, as per merits instead of deciding the case on the preliminary issue of maintainability, as urged by the respondents, and mere technicalities would not come in way of the Tribunal to grant equitable relief. Though the Company Law Board has rejected the case filed earlier, it has granted liberty to file fresh case in accordance with law. Therefore, the instant company petition is filed duly following extant provisions of the Companies Act and Rules/Regulations made thereunder and thus mistakes/irregularities as pointed by the Company Law Board in earlier orders are not existing in the instant petition. 8. Shri B. C. Thiruvengadam, learned counsel for respondents Nos. 1, 2, 5 and 6, on the other hand, while pointing out various averments made in the pleadings made on behalf of the respondents, has further submitted that the instant main company petition itself is not at all maintainable and it is liable to be rejected on the preliminary ground itself. And the Tribunal has to decide the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... status of petitioners is to be established to maintain the instant the instant petition. 12. As per the minutes of annual general meeting of the company was held on September 27, 2012 at House No. 54 (HB) Colony, 5th Block, 2nd Cross, Koramangala, Bangalore-560 095 at 13.00 p.m., the members present are Dr. Ken R. Grnanakan (chairman and member), Dr. Charles Prabakar (vice-chairman and member, Mr. Sam Rajashekar (member) and Mr. Aruldass G. (member) and constituent members/invitees are Dr. Michael Srinivasan (secretary) (respondent No. 4), Mr. Subhash Bhosle (representing Satha), Rev. Samit Mishra (representing FCS/petitioner No. 3), Rev. Simon Jyothi (representing SIBS) petitioner No. 2. However the meeting has been adjourned for want of quorum. Accordingly, the adjourned annual general meeting was held on November 21, 2012 the members present are Dr. Ken. R. Gnanakan (chairman and member/respondent No. 2), Dr. Charles Prabakar (vice-chairman and member/first petitioner herein), Mr. Sam Rajashekar (member/respondent No. 5) and Mr. Aruldass G. (treasurer and member) and constituent members/invitees are ; Dr. Michael Srinivasan (secretary), Mr. Subhash Bhosle (representing Satha) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the office of secretary with effect from September 27, 2012. Accordingly, the company/association has addressed a letter dated November 22, 2012 by intimating him about the acceptance of the resignation and release from the office of the secretary and the board and also attempted to serve the copy of said letter. However, he has refused to receive a letter by acknowledging the same by stating that he has resigned voluntarily and he was happy about the acceptance of his resignation. Therefore, Mr. Srinivasan cannot conduct any meeting of the company and all the proceedings initiated by him deemed to be ab initio void. And the respondents have also initiated suit by questioning his action, which is still pending before the civil court. 13. Subsequently, 41st annual general meeting of the member of association/company was held on September 30, 2013 wherein the members present are : Dr. Ken. R. Gnanakan (member and managing committee chairman) Mr. Samuel Rajashekhar (member and managing committee member), Mr. Aruldass Gnanamuthu (member and managing committee member), Ms. Shobha Louis (member and managing committee member), Mr. Venkateshappa (M.) (member), Mr. Bar Hunka Leona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts. Some of the constituent members along with Mr. Prabakar responded to the invitation of Mr. Michael Srinivasan, erstwhile secretary, and gathered to conspire against ETASI and the committee of management. They have now set up a parallel committee of management claiming to be officers and making desperate attempts to affect the proper functioning of ETASI. Letters and resolutions have been sent to the banks, MCA, and auditors of ETASI, etc. However, since the committee of management has been efficiently and promptly conducting the business of the company, under the expert advice of their consultant Mr. Manjunath of Legal Work, the parallel committee has not met with any success apart from being a nuisance. 14. The above acts of petitioners especially the first petitioner and the fourth respondent is per se illegal and against the sacred association. The report of the committee of management which is circulated to the members provides detailed information of the various properties and the constituent members. Unfortunately, much time has been spent on the matters to protect ETASI from the criminal acts of these deceitful individuals continuing their attempts to disrupt t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, is not tenable and baseless. And the company is entitled to remove any member for misconduct, mismanagement on the part of a member. Therefore, the annual general meeting held on November 21, 2012 has rightly removed the first petitioner from the membership as per law. 16. So far as the contention of the respondents that, that the issue became final on rejection of earlier company petition by the then Company Law Board and thus it became final and the instant company petition is not maintainable, since the Company Law Board has rejected the case by granting liberty to the petitioner to file fresh company petition in accordance with law. Similarly, the other contention that the suit in question is pending before civil court and thus the instant petition is not maintainable is also not correct as jurisdiction of civil court is ousted by virtue of section 430 of the Companies Act, 2013 and the issue raised in the instant company petition relates to affairs of the company, which is incorporated under the provisions of the Companies Act, 1956. 17. For the reasons and circumstances, we are of the considered opinion that the petitioners are not the members of the company and thu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
