TMI Blog2020 (12) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... not fulfilling the requirements of section 244(1) for filing the petition under section 241 read with section 242 of the Companies Act, 2013. Therefore, it is prayed by the applicant/petitioner to grant waiver of the requirements of section 244(1) for filing the petition under section 241 read with section 242 of the Companies Act, 2013 against the respondents. The proviso to sub-section (1) of section 244 provides that the Tribunal may, on an application made to it in this behalf, waive all or any of the requirements specified in clause (a) or clause (b) so as to enable the members to apply under section 241 (emphasis supplied). In the present case, the requirements of sub-clause (a) of sub-section (1) of section 244 were to be fulfilled (as the company is having a share capital), which the applicant/ petitioner is falling short of. However, the applicant being member of the first respondent-company is holding 5,000 shares, i. e., 0.04 per cent. of the total issued share capital and is eligible to seek waiver as prayed for. Thus, it is a fit case where the requirements laid down under section 244(1)(a) of the Act, 2013 need to be waived and allow the applicant/petitioner to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng director were taken away and it is also prayed to set aside the unlawful circular resolution Nos. 1, 2, 3 and 4 and 5 of 2019 passed on May 14, 2019 to remove the authorized signatory of the first respondent-company, and to set aside the unlawful board resolution dated May 6, 2019 seeking to remove the applicant from the post of managing director of the first respondent-company and restrain respondents Nos. 3 and 4 from interfering with the functioning of the applicant as the managing director and authorized signatory of the first respondent-company. 4. The applicant alleges that there is a violation of the provisions of the articles of association. He has referred to article 52 of the articles of association of the first respondent-company, which provides that the controlling shareholders shall have the right to appoint managing director of the company and the powers of removal are vested with the controlling share- holders and not with the directors as in his case, the board of directors vide resolution dated May 14, 2019 has resolved to remove the applicant from the position of the managing director and the removal from the position of the authorized signatory on the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-company was circulated. However, a mail has been sent by respondent No. 3 on May 6, 2019 calling for convening the board meeting at 1.30 p.m. on the same day, wherein the agenda item was to remove the applicant from the post of the managing director and the authorized signatory of the first respondent- company. By pointing out towards the conduct of the respondents, it is submitted that respondent No. 3 with other respondents have acted in an arbitrary manner, and the act constitutes the act of oppression as far as the rights and the privileges of the applicant/petitioner are concerned. It is noted that on May 6, 2019 a proposal was moved for the removal of the applicant as stated above and on May 14, 2019 the applicant was removed without serving any charge sheet or the summary of allegations on the basis of which, the removal was sought by the respondents. 8. It is submitted by counsel for the applicant/petitioner that the applicant's removal from the position of managing director and the authorized signatory did not benefit the first respondent-company or the shareholders in any way. In other words, the action of the respondent in no way is in the interest of the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of the applicant/petitioner has been shown as one of the directors and not as managing director. It also reflects from form 20B that the applicant/petitioner is director of the first respondent-company. Learned counsel for the respondents has referred to article 38 of the articles of association, and submitted that the said article does not provide for appointment of managing director of the first respondent-company, it only empowers the directors who may from time to time appoint one or more of their body to the office of the managing director for one or more of the divisions of the business carried on by the company and to enter into agreement with him in such terms and conditions, as they may deem fit. Learned counsel for the respondents further referred to article 52 of the articles of association that provides that the controlling shareholders shall have the right to appoint the managing director of the company and submitted that the applicant/petitioner was never appointed as managing director of the first respondent-company in accordance with article 52 of the articles of association. 12. Further, learned counsel for the respondents has referred to JVA dated Janua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the applicant/petitioner that the arguments of learned counsel for the respondents are contradictory to the records of the proceedings of the Board which has passed the impugned resolution on May 14, 2019 the detail of which is already noted in the preceding paragraphs. 15. Learned counsel for the applicant/petitioner has submitted that reference made by counsel for respondents to the provisions of section 196 of the Companies Act, 2013 is misleading as the same is not applicable to the private companies. It is further submitted that reference to section 134 of the Companies Act, 2013 is also misleading, as it is not mandatory that the financial statements need to be signed by the managing director only. In relation to article 38 of the articles of association, learned counsel for the applicant/petitioner submits that the same is not relevant for the appointment of the managing director of the company but the relevant article is 52 of the articles of association, as is referred hereinabove. Learned counsel for the applicant/petitioner further submitted that the first respondent-company is signatory to the JVA. Even if, the JVA is not made as part of the ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the board meeting held on May 14, 2019 the agenda is to withdraw powers, privileges and rights of the managing director, viz., Mr. Anil Agrawal (applicant/petitioner) and to terminate his appointment as the managing director of the first respondent-company with immediate effect. Learned counsel for the applicant/petitioner has also referred to paragraph (vi)(d) of the reply filed by the respondents, which is again reiterated as follows : The petitioner has been the managing director of first respondent No. 1 since the incorporation of respondent No. 1, i. e., for last 10 years without seeking any formal reappointment upon completion of his five years term. 19. The above stated facts are being supported with the recitals of paragraph 8.1 of the JVA that provides that Mr. Anil Agarwal, be the managing director of the JVC as agreed between Omega and FRA and Mr. Anil Agrawal will manage the operations of the JVC, i. e., the first respondent-company, i. e., Omega Icehill P. Ltd. (being the JVC ). Thus, prima facie it is established that the applicant/petitioner has been the managing directors of the first respondent-company, i. e., Omega Icehill P. Ltd., till his removal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess than one-tenth of the total number of its members, whichever is less, or any member or members holding not less than one tenth of the issued share capital of the company, 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 a company not having a share capital, not less than one-fifth of the total number of its members : Provided that the Tribunal may, on an application made to it in this behalf, waive all or any of the requirements specified in clause (a) or clause (b) so as to enable the members to apply under section 241. Explanation.-For the purposes of this sub-section, where any share or shares are held by two or more persons jointly, they shall be counted only as one member. (2) Where any members of a company are entitled to make an application under sub-section (1), any one or more of them having obtained the consent in writing of the rest, may make the application on behalf and for the benefit of all of them. 22. The proviso to sub-section (1) of section 244 provides that the Tribunal may, on an application made to it in this behalf, waive all or any of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
