C.P. No. 424 (186)/KB/2011. Case: Amrita Media P. Ltd. Vs Amrita Bazar Patrika P. Ltd. and Others. Company Law Board
| Case Number | C.P. No. 424 (186)/KB/2011 |
| Counsel | For Appellant: Pratap Chatterjee, Senior Advocate, Jishnu Saha, Debangshu Basak, Pratik Gosh, Sarathi Dasgupta and Nabik Shyam and For Respondents: S.N. Mookerjee, Senior counsel, Ratnanko Banerji, Sanjay Jhunjhunwala and Ms. Swapna Choubey |
| Judges | A.K. Tripathi (Member) |
| Issue | Companies Act, 1956 - Sections 169, 186, 187, 189, 190, 262, 265, 284, 408 |
| Citation | 2012 (175) CompCas 342 (CLB), 2013 (117) SCL 221 (CLB) |
| Judgement Date | July 27, 2012 |
| Court | Company Law Board |
Order:
A.K. Tripathi (Member), (Kolkata Bench)
1. The above stated petition has been filed under section 186 of the Companies Act, 1956, seeking directions for convening a general meeting of the shareholders of the company to consider the agenda filed as annexure Q to the petition or such agenda as this Board may deem fit and proper and further give all the necessary and consequential directions for the purpose of holding and conducting such general meeting. It is further prayed that a fit and proper person may be appointed to preside over the general meeting as chairman who may also be provided with adequate police protection to convene and conduct such meeting in a peaceful manner. Shorn of unnecessary details, the relevant facts leading to filing the present petition are that according to the petitioners, they are 75 per cent. shareholders of the issued, subscribed and paid-up share capital of the company. It is stated that in an extraordinary general meeting held on November 3, 2006, the members of the company, inter alia, passed certain resolutions, the reproduction of which seems necessary for the purpose of adjudication of the present petition. The resolutions are as follows:
(i) Resolved that pursuant to section 284 of the Companies Act, 1956, Gyneshwar Mishra be and is hereby removed as director.
(ii) Resolved that pursuant to section 284 of the Companies Act, 1956, Mr. Projesh Kumar Roy be and is hereby removed as director.
(iii) Resolved further that Mr. Aloke Kumar Roy be and is hereby appointed as director in place of Mr. Projesh Kumar Roy to hold office during such time as Mr. Projesh Kumar Roy would have held office had he not been so removed.
(iv) Resolved that pursuant to section 284 of the Companies Act, 1956, Mr. Mohan Kumar Mukherjee be and is hereby removed as director.
(v) Resolved further that Mr. M.K. Venugopalan be and is hereby appointed as director in place of Mr. Mohan Kumar Mukherjee to hold office during such time as Mr. Mohan Kumar Mukherjee would have held office had he not been so removed.
(vi) Resolved that pursuant to section 284 of the Companies Act, 1956, Mr. Arun Chakraborty be and is hereby removed as director.
(vii) Resolved further that Mr. Sankram Basu be and is hereby appointed as director in place of Mr. Arun Chakraborty to hold office during such time as Mr. Arun Chakraborty would have held office had he not been so removed.
(viii) Resolved that pursuant to section 284 of the Companies Act, 1956, Mr. Ashoke Saha be and is hereby removed as director.
2. It is observed that on the basis of such resolutions, the company had called upon such removed directors to, inter alia, hand over all the documents of the company in their possession immediately to the company and not do any act or deeds for and on behalf of the company or in its name.
3. It is further stated that such directors challenged the validity of extraordinary general meeting and the resolution passed therein. Accordingly, they approached the hon'ble High Court of Calcutta by way of filing a civil suit bearing No. 311 of 2006 seeking permanent injunction thereby restraining the petitioner to act on the basis of the purported extraordinary general meeting held on November 3, 2006.
4. It further appears that the petitioners' group also filed a civil suit for injunction in the hon'ble High Court at Calcutta, which was registered as Civil Suit No. 302 of 2006, for decree declaring plaintiff No. 1 is entitled to be represented in the present board of directors; perpetual injunction restraining the defendants and each one of them from in any manner representing/acting/holding out themselves to be the directors of plaintiff No. 1 company; perpetual injunction restraining the defendants and each one of them earlier by themselves or through their respective servants, agents and/or assigns from in any way dealing with, transferring, alienating and/or encumbering any of the properties belonging to plaintiff No. 1 including the premises No. 41A, Acharya Jagadish Chandra Bose Road, Kolkata-700 017; and mandatory injunction commanding the defendants and each one of them to forthwith hand over the present board of directors along with all the records including the statutory records and other documents, bank statements, cheque books, bank accounts and the common seal of the company and/or any other documents or assets of the company lying with them. This suit is pending for disposal.
5. Thus, on the basis of the contentions before the hon'ble High Court, it is evident that two sets of individuals are claiming to the office of the board of directors of the company.
6. Therefore, with the purpose to upkeep the paramount interest of the company and the shareholders filed an interim application being G.A. No. 1467 of 2007, seeking almost identical reliefs which have been sought herein by way of this petition.
7. The hon'ble justice Indira Banerjee, after hearing both parties, disposed off the said interim application holding that the power to order the convening of annual general meeting of the company is vested with the Company Law Board under section 186 of the Companies Act, 1956. Hence, this petition.
8. The respondents appeared and filed their reply opposing the prayers pleadings, inter alia, that the petition is not maintainable as the deponent Sankram Basu is not a valid director of the petitioner-company; that the purported petitioner in the present petition and has not been authorised by the petitioner-company to file the petition. The said Sankram Basu is illegally shown as a director of the petitioner-company and as to how the said deponent became a director of the petitioner-company and has authority to institute the instant proceedings; that the petition has not been filed with the approval of all the shareholders of the petitioner-company as 100 per cent. equity shareholding is beneficially owned and held by Mangalmoyee Vyapar P. Ltd., who is beneficially owned by two distinct group of shareholders both holding their respective equity shares through private limited companies/individually in their control; that the earlier directors of Mangalmoyee Vyapar P. Ltd., and the petitioner-company were appointed with the assent of both the groups; that no proceedings could have been instituted on behalf of the petitioner at the instance of only one of the groups of shareholders of the petitioner-company.
9. Further, there has been wrongful and illegal allotment and increase of shares in the petitioner-company itself and the wrongful acts are against the interest of the bona fide and genuine shareholders of both the said two companies, i.e., Mangalmoyee and the petitioner-company. Recently serious acts of fraud, forgery and acts of oppression and mismanagement have come to the knowledge of the shareholders of the said two companies.
10. It is further stated in the reply that there are serious disputes which are pending before the Calcutta High Court with regard to wrongful and illegal appointment of directors of respondent No. 1 company. Thus, a suit being C.S. No. 311 of 2006 has been filed before the hon'ble High Court at Calcutta, inter alia, challenging the appointment of directors in respondent No. 1 company. During the pendency of the said suit and the proceedings before the hon'ble High Court, the deponent, Sankram Basu is not entitled to institute the instant proceedings on behalf of the petitioner-company or to pray for reliefs.
11. It is further averred that by filing the instant petition, the petitioners are trying to render the proceedings filed before the hon'ble High Court at Calcutta infructuous. The reliefs asked for are in conflict with the proceedings and the issues which are pending before the hon'ble High Court at Calcutta. Respondents Nos. 5 and 6 in the instant proceedings had also prayed for similar reliefs before the hon'ble High Court at Calcutta, which have been refused. The instant proceeding is an interference with the administration of justice and the course of proceedings in both C.S. No. 302 of 2006 and C.S. No. 311 of 2006 and the instant proceedings are an attempt to subvert the effect of orders passed by the hon'ble High Court at Calcutta in these proceedings. In an other proceeding before the hon'ble High Court at Calcutta, being C.S. No. 37 of 1998, which relates to 8,000 sq. ft. area on fourth floor of a building which was owned by respondent No. 1 company, the hon'ble High Court at Calcutta has been pleased to allow respondent No. 2 and the other genuine directors of respondent No. 1 company to represent respondent No. 1. Therefore, no case has been made out for grant of reliefs by the petitioner.
12. Denying the averments made in the petition, the respondents' group further pleaded that the petitioner does not hold 75 per cent. of the issued, subscribed and paid-up share capital of the company, they hold less than 75 per cent. as would be evident from the petitioner's own showing as the shareholding of the petitioner is beneficially held by two groups of shareholders who are entitled to control and manage the petitioner-company; that the petition is barred by principles of res judicata and issue estoppels. It is also stated that the letter dated November 14, 2006, written to the...
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