TMI Blog2021 (5) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to acquire such revisionary rights in the leased property of the Company. The Petitioner and his late father were actively involved in such acquisition. The minority cannot question the decision of the majority on frivolous grounds and it is necessary for corporate governance that Corporate Democracy of the shareholders to be protected and safeguarded qua the rights of one individual minority shareholder. The decision of the majority would prevail in the interest of the Company and its shareholders per se. Therefore, he cannot question such acquisition at this stage and he has questioned the conveyance deed by filing a suit in City Civil Court of Bombay. Further, the only act of oppression of removal of Petitioner as Director is untenable as the post of director remained vacant due to the absence of the Petitioner in several meetings. The Petitioner has sought to file several complaints, suits before ROC and filed criminal complaints with regard to the same allegations. The Petition is dismissed for want of any justified ground of oppression and mismanagement of the Company under Section 241 of Companies Act, 2013 and therefore, it is concluded that the Petitioner has fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a planned conspiracy, created an environment of unrest and fear among the shareholders/members/gala owners of Hussaini Lakda Bazar Pvt. Ltd. that although the company holds the lease for 999 years, however the lessors and their legal heirs are going to create third party rights by selling it to some builders or mafia or so and subsequent lessors may revoke the lease deed and hence it is extremely urgent and necessary to purchase the proprietary rights from the lessors. 5. Further, it is submitted by the Counsel for the Petitioner that this unrest and proposal to acquire ownership rights was created with malicious intention to usurp huge amount of money from the transactions and Respondents took all the unilateral decisions in respect of the said transactions while manipulating the affairs of the said company by keeping the shareholders in complete dark regarding the technicalities of the said transaction. The Petitioner was never served any notice of any meetings except for 2 meetings dated 08.11.14 and 10.09.15 to which the Petitioner had also written letters to Respondent No. 1. The Respondents called an 82nd AGM on 22.09.14 by giving only 5 days notice to the shareholders w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents. Thereafter, the Respondents did not inform the Petitioner and his father, the then President and currently, a Director about any meeting of the Board of Directors /Resolution passed by the Board of Directors and even in general meeting of the Company and hence practically acted like owners of the Respondent No. 1 Company. 8. Further, it is submitted by the Counsel for the Petitioner that the Respondent No. 1 Company never had such a huge fund to the tune of ₹ 24 Crores and share capital of the Company was only ₹ 2,24,000/-. However, the Respondents by making scheme cheated and played fraud upon all the members /shareholders whereby the organization called as Shiate Ali Qurdhan Hasana Trust , sister concern of co-purchaser Anjumane Shiate Ali having shareholding of 51%, gave personal loan to Respondents of several lakhs and also to few other shareholders which was thereafter transferred by the Respondents into the account of the Respondent No. 1 Company and from there funds were paid to the lessors to acquire remaining 49% of ownership rights in the said property. 9. The Counsel for the Petitioner then submits that the Petitioner was shocked when he ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice and no opportunities were given to him to give any explanations and he was not even informed regarding his removal. The Petitioner was removed from the designation of Director before expiry of the period of his office and in total contravention of Section 169 of Companies Act, 2013 without giving him an opportunity of being heard and in total violation of principle of natural justice. The Petitioner states that he has even complained to ROC regarding his arbitrary removal and mismanagement of company s affairs by Respondents a letter dated 28.05.2016 written to ROC by Petitioner. 13. The Counsel for the Petitioner lastly submits that the Petitioner by demanding transparency from the Respondents for the said transaction and explanation of all the technicalities to all the shareholders and getting their approval in the AGM/EOGM after explaining them the process of acquisition and taking their approval in the form of Resolution and also to get approval of the draft from shareholder and thereafter to enter in the said transaction was just doing his duty as per Section 166 (2) of the Companies Act, 2013 to take actions in the welfare of shareholders and company. 14. The Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... junction restraining from demolishing any part of the Applicant property and prayer for an appointment of the Receiver with all powers under Order XL Rule I of the Code of Civil procedure, 1908. d. It is then submitted by the Counsel for the Respondent that the aforementioned suit filed in the Hon ble Bombay City Civil Court at Bombay, the Applicant had also approached the Hon ble Company Registrar and lodged a Complaint bearing SRN 201882142 dated 6th August 2015 on identical grounds against the Respondents. The Learned Company Registrar by his letter bearing Reference No. ROC/IPC/MP/01793/2015/3123 dated 12th August 2015 called upon these Respondents to furnish comments/clarifications and explanations of each of the allegations made by the Applicant , with supporting documentary evidence within 7 days from the date of the receipt of the said letter. The Complaint was replied by and on behalf of the Respondents therein by letter dated 29th September 2015 and same was rejoined by the Applicant by his letter dated 4th November 2015. By letter dated 23rd December 2015, Respondents further replied to the letter of the Applicant dated 4th November 2015 and submitted all relevant doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 to the Hon ble Registrar of Companies and having approached the Hon ble Bombay City Civil Court by filing a suit, the Applicant/Petitioner elected to have his alleged grievance resolved by approaching the Learned Company Registrar and also approached the Hon'ble City Civil Court to have his alleged grievance adjudicated and therefore, the Applicant gave up his purported right to have his alleged grievance redressed by this Hon ble Forum and is disentitled to approach this Hon'ble Tribunal by making identical allegations. It is submitted that the above Petition is untenable and not maintainable. Even the Applicant has lodged Criminal Complaint before the Nagpada Police Station to harass the Respondents for no fault of theirs. In January 2017 the said Moiz Mehta, the then Chairman and Director of Respondent No.1 Company was called by the Nagpada Police Station, who went and got his statement recorded on 01.07.2017.The documents were perused by the officer-in-charge of the Police station and on being satisfied with the records maintained by Respondent No. 1 Company the Police did not act further. Once the Petitioner had chosen to approach the Hon'ble Company Registrar an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained absent in the Board Meetings of the Company since 27th August 2014. Under the circumstances, it was unanimously resolved on 10th September 2015 by the Board of Directors of Respondent No. 1 Company that the post of Director held by the Applicant had fallen vacant under Section 167(1)(b) of the Companies Act, 2013. i. It is further submitted by the Counsel for the Respondent that the Applicant, being not satisfied with the act and duties done by the Nagpada Police Station and taking advantage of the fact that due to prolonged illness, Mr. Moiz Mehta, the then Chairman and Director of the Company (since deceased), was bed ridden has approached the Hon'ble Magistrate of the Sewree Court and filed an application under section 156 of the Code of Criminal Procedure. j. It is then submitted by the Counsel for the Respondent that notice calling 82nd AGM on 22.09.2014 was without any Agenda regarding the proposal to acquire the ownership rights in the subject property. The time granted by the lessor to purchase the reversionary right was very short, hence notice for a short period was given to the shareholders and members. Nobody objected to the same except the Applicant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gi approached M/s. Federal Rashmikant, Advocates, Solicitors and Notary, inter alia to seek professional advice and to prepare necessary documentation and exchange correspondence for the purchase of the Reversionary right of the subject property from the Lessors. I say that the late Mr. Haider Changi himself signed a cheque bearing No. 334190 dated 21stJuly 2014 drawn on Bank of India, Nagpada Branch for a sum of ₹ 2,00,000/- (Rupees Two Lakh) in favour of M/s. Federal and Rashmikant, Advocates and Solicitors, on account towards their professional charges and handed over the said cheque personally to Mr. Federal of M/s. Federal and Rashmikant, Advocates and Solicitors during the Meeting and receipt bearing No. 507006 dated 22ndJuly 2014 was issued. l. The Counsel for the Respondent further submitted that the process for the purchase of the reversionary rights started during the tenure of the late Mr. Haider Changi when he was the Chairman of Respondent No. 1. Even the late Mr. Haider Changi along with the Applicant addressed a letter dated 4th July 2014 to the Dawat-e-Hadiya Trust (Community) for a loan to the extent of ₹ 21 crores along with other Directors of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the late Mr. Haider Changi had tendered his resignation as the chairman and Director of Respondent No. 1. m. The Counsel for the Respondent further submitted that as mentioned in earlier paragraph, process of acquisition started during the tenure of the Applicant's father when he was the chairman of the Company. It is submitted that the Applicant cannot be allowed to blow hot and cold at the same time. On the one hand, the Applicant's grievance is that notice period for holding the Annual General body Meeting and Board Meeting were shorter and therefore he had objected to the same by writing letters to the Respondent Company and Board of Directors and on other hand he makes a grievance that no notices were given. n. The Counsel for the Respondent further submitted that all the shareholders except the Applicant and his father were part and parcel of every vital decision taken on behalf of Respondent No. I for the welfare and benefit of the members. The process for acquiring ownership was started in the late Mr. Haider Ali Changi's tenure and initially the Applicant and his father had actively participated in the same. The entire action to acquire ownership right w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late father Mr. Haiderali Fakhruddin Changi was compelled to resign and the Respondent No. 2 was then made chairman and director of the company. The Company never had a huge sum of ₹ 24 crores and in fact have borrowed money from Anjumane Shirat Ali. The deed of conveyance of reversion was executed on 31.12.2014 wherein Anjumane Shirat Ali acquired 51% of ownership in the Company and remaining 49% acquired by R1 Company. The Petitioner alleged that the Respondent have not followed due process of law before execution of conveyance of reversion, no resolution was passed, no circular, no notice, no intimation was given to the Petitioner. Therefore, he was aggrieved by the action of Respondent in passing resolution at EOGM before the acquisition of rights in the leased property. 18. The Petitioner alleged that no notice was served upon him except two meetings dated 08.11.2014, 10.09.2015. The Petitioner further came to know that he was no longer director of the company as declared in the resolution of 83rd AGM on 21.12.2015. 19. The Respondent No. 3 to 7 filed a reply, The Respondent No. 2 passed away on 24.11.2018 and submitted that the present application for waiver u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation of late Mr. Haiderali Fakhruddin Changi, father of Petitioner, was received during EOGM and the Petitioner was requested to accept the post of vice-president but he refused to accept. The Respondent categorically pointed out that the notice dated 25.07.2014 convening EOGM on27.04.2014 was issued by father of the Petitioner. The Petitioner and his father having participated in the said meeting has acquired acquisition rights in the property and have adopted a pernicious scheme to harass the members and directors of the company by approaching one forum after another. The major allegation in the application is about the company acquiring revisionary rights in the property but the Petitioner and his father were actively involved in the process of acquiring such rights and hence is guilty of approbating and reprobating. 26. With regard to the allegation of removal of director, the Respondent stated that no director of company has any vested rights to stay in the company, he was removed but not removed as a director of the company, however, as he remained absent for several consequent meetings, he ceased to be a director of the Company. The removal of director cannot be a groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the lessor of Hudseini Lakda Bazar Pvt. Ltd. To discuss about how to raise the fund for the same within limited period of around 15 days and to consider condition of repayments. However, on 28th July, 2014 at 6.00 pm, Late Mr. Haider Changi tendered his resignation letter dated 24.07.2014 from his post as Chairman and Director making certain allegations against other members. 31. While this being the factual matrix with regard to passing of resolution by the Board at the EOGM to acquire reversionary rights, it can be said that 33 members out of 50 members attended the meeting. The entire transaction was with the consent of majority members and all requisite procedures were followed. The Deed of conveyance was circulated in the Board meeting dated 31.12.2014, the petitioner failed to attend the said meeting. 32. Section 244 of Companies Act, 2013 clearly contemplates granting of waiver of all requirements as laid down in Clause (a) (b) to enable members to apply under Section 241. Section 244 of the Companies Act, 2013 is reproduced below: 244. Right to apply under Section 241- (1) The following members of a company shall have the right to apply under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dual minority shareholder. The decision of the majority would prevail in the interest of the Company and its shareholders per se. Therefore, he cannot question such acquisition at this stage and he has questioned the conveyance deed by filing a suit in City Civil Court of Bombay. Further, the only act of oppression of removal of Petitioner as Director is untenable as the post of director remained vacant due to the absence of the Petitioner in several meetings. The Petitioner had not attended board meetings since August, 2014 and therefore he was informed if he did not attend the meeting on 10.09.2014, his post of the Director of Company would stand vacated. Despite the same the Petitioner did not attend the meeting on 10.09.2014, under that circumstances on 10.09.2014, board of directors resolved that the post of director as held by Petitioner had fallen vacant as per the Section 167 of Companies Act, 2013. 35. The Petitioner has sought to file several complaints, suits before ROC and filed criminal complaints with regard to the same allegations. 36. Thus, the Petition is dismissed for want of any justified ground of oppression and mismanagement of the Company under Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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