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TMI Blog2020 (11) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... for filing Company Petition under Section 241 read with Section 244 of the Act. 2. The brief facts of case are that the 1st appellant is company incorporated on 11.11.2009 under the Companies Act, 1956 and the 1st respondent (original petitioner) is holding 5000 shares i.e. 0.04% of the total issued share capital of the 1st appellant company. The company was formed as a joint venture company between a Netherlands based company called Omega Engineering Holding BV and an Indian partnership firm called Friends Refrigeration and Associates (FRA). 1st respondent filed Company Petition before the NCLT New Delhi under Section 241 read with Section 242 of the Companies Act, 2013 against the acts of oppression and mismanagement committed by 2nd to 4th appellant to oust the 1st respondent (original petitioner) from the position of Managing Director of the 1st appellant company. The original petitioner was removed from the position of Managing Director by the Board of Director through the meetings held on 6.5.2019 and 14.5.2019. The original petitioner filed an IA under Section 244 of the Companies Act, 2013 being IA No.Nil/241/242/ND/2019 seeking waiver of the requirements for filing the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 244(1)(a) of the Act, 2013 need to be waived off and allow the applicant/petitioner to file company petitioner under Section 241 read with Section 242 of the Act, 2013 as the company petition cannot be dismissed at the threshold because it requires a detailed enquiry into the matter complained of. Thus, the issue framed stands decided in favour of the applicant and against the respondents." Being aggrieved the order dated 22nd July, 2020 the appellants have filed the present appeal under Section 421 of the Companies Act, 2013 praying therein that the order 22nd July, 2020 passed in CA No.Nil in CP No.102/ND/2019 may be set aside and stay the proceed of the CP pending before the NCLT New Delhi. 5. The appellants stated that the 1st appellant is a company incorporated under the Companies Act, 1956 on 11.11.2009. The authorized share capital of the company is Rs. 135,000,000/- while paid up capital is Rs. 122,633,970/-. The respondent and 2nd to 4th appellant are directors of the appellant company. The appellants stated that the appellants and Respondent and other entities made investment and acquired share of the appellant company. The investment made and loans provided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tline the job responsibilities and powers of the Managing Director for 1st appellant in consultation with the remaining shareholders. The appellants stated that Notice dated 6.5.2019 for the Board Meeting on 14.5.2019 was issued (Page 262) in which one of the agenda items was to withdraw all powers, privileges and rights of the Managing Director, Mr. Anil Agrawal and to terminate the appointment of Mr. Anil Agarwal as the Managing Director of the company with immediate effect. The appellants stated that the Board Meeting was held on 14.5.2019 and the matter was discussed and the resolution was passed (Page 268 of the appeal) to remove the Managing Director, Mr. Anil Agarwal. 6. The appellant stated that the NCLT allowed the waiver application which is liable to be set aside on the facts that the 1st respondent was not eligible to waiver in view of the requirements laid down by the Hon'ble Appellate Tribunal in paragraph 151 of the Cyrus Mistry Judgement as there are no exceptional circumstances warranting for grant of waiver. The appellant stated that only the powers and privileges of the respondent were withdrawn in view of the brazen misconduct of the Respondent and he is still ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Respondent from the position of the Managing Director in direct contravention of the Joint Venture Agreement and the Articles of Association. The respondent stated that the appellants have taken advantage of his small share in the shareholding of appellant No.1. The respondent stated that these are the exception case of gross oppression and mismanagement on account of which the waiver application has been rightly allowed by the NCLT. The Respondent stated that there is no other minority shareholders with whom the Respondent could join together to maintain a petition under Section 241, in view of the winning over of Appellant No.4 by Appellant No.2 and 3. 8. Rejoinder has been filed by the appellant reiterating the submissions made in the appeal except with respect to the Respondent's objection to pleading of new facts and placing new documents of record particularly annexure A-6 to A-8, the appellants stated that the same have been brought on record on account of the reason that the impugned order contains the findings on merits without the appellants having even filed their reply to the Company Petition. 9. Learned counsel for the appellants argued i) that the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts the interest of a significant number of members in the company. That appellants have now taken over the affairs of the company by winning over 4th appellant (uncle in law or Respondent), thereby reducing the Respondent into an insignificant minority. iii) That Article 52 of the AoA stipulate that the right of appointment of the Managing Director shall be with the controlling shareholders and therefore by necessary implication, the Respondent could only have been removed by the controlling shareholders and not by the Board as has been done in the present case. iv) That from the nature of shareholding that there are no other minority shareholders, with whom the Respondent could join together to maintain a petition under Section 241 in view of the winning over of 4th appellant by 2nd and 3rd appellant. v) That the mode and manner of removal of respondent from the post of managing director by giving a 1-minute notice was in gross violation of the mandatory provisions of the Companies act, 2013. vi) That the Respondents represents the interest of a substantial number of shareholders in 1st appellant as his wife owns 25% shares of Kurinji Metals Pvt Ltd, the company which hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding pattern of Appellant No.1 as filed by the Appellant (Page 18 of the appeal). In the present case that the Respondent alongwith his family members are 4 in numbers but their shareholding is less than 10%. 16. That the Respondent has been corresponding with the appellants for the last ten years as Managing Director of 1st appellant and is well known in the knowledge of the appellants. It cannot be said that merely some technical compliances have not been done under the law will be used for detrimental to the interest of the said Managing Director to derive him the benefit provided by the law. 17. The arguments of the Respondent that his wife is shareholder of M/s Kurinji Metals Pvt Ltd which holds 30.42% shares in the appellant No.1 and she holds approximately 7% of the shareholding of appellant No.1 through M/s Kurniji Metals Pvt Ltd cannot be considered as the Resolution from M/s Kurniji Metals Pvt Ltd is required to give company's consent. The contention that she is a proportionate shareholder and her shareholding should be counted for making out the criterial is not accepted. 18. Thus in this way this will be in the hands of the major shareholders namely Omega Group, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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