Beeceelene Textile Mills Pvt Ltd. & Ors vs Radhakrishan B Ruchandani & Ors

Beeceelene Textile Mills Pvt Ltd. & Ors. . ..Appellants

Versus

Radhakrishan B Ruchandani & Ors. ...Respondents

Present: For Appellant: Shri S. Suryanarayanan with Ms. Garima Bajaj, Advocates

ORDER

25.07.2017 This appeal has been preferred by the appellants

against order dated 131h April, 2017 passed by the National Company

Law Tribunal (hereinafter referred to as 'Tribunal'), Ahmedabad Bench,

Ahmedabad in T.P. No. 26/397-398/NCLT/AHM/2016(New) CP No.

46 / 37-398/ CLB/ MB! 2012 (Old) whereby and whereunder the learned

Tribunal while held that there is oppression and mismanagement on the

part of the respondents, allowed the petition in favour of the

respondents/ petitioners with the following observations:

"61. So, it is a fact that, for the Board Meetings held

on 1.12.2011, 07.01.2012, 15.03.2012, no notice was

given to the petitioner who is a director of the first

respondent company. Therefore, it is certainly, an act of

oppression of petitioner who represent the 30.83% of

paid up capital offirst respondent company. -2-

62. It is admitted case of respondents that a

special meeting of majority group of shareholders was

held on 13.12.2011. A perusal of Ex.-10 attached to

reply show that nine members holding total 10.375

shares attended the meeting. Second respondent

chaired this meeting. In the said meeting it was

r4solved that, Oriental Bank of Commerce, Jash Market

Branch, Ring road, Surat be asked to allow operation in

the account of the company with the bank bearing

account No. 01021010012300. According to the

respondents, the said meeting was held to overcome the

situation of freezing of the bank account of the first

respondent company with Oriental Bank of Commerce

on the basis of the false Board Resolution given by the

petitioner. According to the petitioner he called a board

Meeting on 09.12.2011 where respondents 2 and 6

Were also present and there was a serious dispute

amongst themselves regarding business of the first

respondent company. then petitioner wrote a letter

dated 09.02.2011 to Oriental Bank of Commerce, Jash

Market Branch, Ring road, Surat asking the said bank

to freeze bank account of the first respondent company

attaching the resolution passed in the Board meeting

dated 09.12.2011. In response to the said letter,

Oriental Bank of Commerce wrote a letter dated -3-

10.12.2011 freezing the operations of the bank account

of first respondent company. Thereafter, according to

the respondents, on 13.12.2011, a special meeting of

majority group of shareholders was held. Petitioner

pleaded that there is no provision in the Companies Act

which enables the respondents to call a special meeting

of majority of shareholders other than General meeting

or Extra Ordinary General Meeting by giving due notice

to all the shareholders. A perusal of Ex. R-10 and R-1 1

and the pleadings of the respondents in the reply

conclusively goes to show that respondents without

giving notice to all the shareholders convened special

meeting of group of shareholders and passed resolution

and placed the same resolution before the bank

authorities. The said meeting is neither in accordance

with the provisions of the Companies Act, 1956 to

conduct majority shareholders meeting. It is not even

the case of the respondents that a notice of the meeting

dated 13.12.2011 was given to the petitioner and his

group members. Therefore, calling a meeting of the

majority shareholders of the first respondent company

is nothing but an act of oppression and

mismanagement. Leave alone the resolution passed in

the meeting held on 09.12.2011 placed by the petitioner -4-

before Oriental Bank of Commerce is genuine or not or

valid or not.

63. Now, coming to the Board meeting dated 28.04.2012 it

is the case of the petitioner that, Board meeting dated

28.04.2012 was called basing on his letter da ted

19.04.2012. but a perusal of Ex. R-18 attached to the

reply show that notice dated 23.04.2012 was issued to

all directors and invitees to attend the Board Meeting

scheduled to be held at 12.00 noon on 28.04.2012. in

the said notice, subject for discussion was as follows:-

(1) To grant leave of absence, if any,

(2) To approve the minutes of previous Board Meeting held

on 15th March, 2012

(3) To discuss about alleged oppression and

mismanagement in the company as per letter dated 1 9t

April, 2012 received from Mr. Radhakishan B.

Ruchandani and also to take note of his conduct

(4) To discuss about various matters connected with the

working of the company including broad basing the

Board of the company

(5) Any other business with the permission of Chair.

64. In the said notice there is no mention about the proposed

business viz, appointment of Amit Pitamberdas

Ruchandani (R-3) and Jitesh Pitamberdas Ruchandani -5-

(R-4) as directors of the company. But a perusal of the

resolution passed in the Board of Directors meeting

dated 28.04.2012 show that the meeting was chaired

by the second respondent and petitioner also attended

the said meeting. In fact, petitioner admitted that he has

attended the said meeting. It is the case of the petitioner

that, son of the petitioner was not allowed to attend the

said meeting but son of the second respondent who is

third respondent, remained present in the meeting. It is

also the case of the petitioner that, Smt. Radhaben

Ruchandani wife of late Bharat Ruchandani was not

allowed to enter into the office. It is also the case of the

petitioner that, Mr. Kanaiyalal Ruchandani, respondent

6 was absent in the said meeting. According to the

petitioner, meeting was concluded without any

conclusion but the second respondent fabricated the

resolution and filed form 32 with the Registrar of

Companies regarding appointment of respondents 3

and 4 as directors which is not even the subject matter.

A perusal of annexure "L" - consent letters of

respondent 3 and 4 show that respondents 3 and 4 gave

consent to act as directors of the first respondent

company only on 28.04.2012. Therefore, it is clear that

appointment of respondents 3 and 4 was taken up

without specific agenda and they were appointed as -6-

directors by obtaining their consent on the very same

day, that too by casting vote by Chairman, i.e. 2nd

respondent. Minutes of the Board Meeting is signed by

only 2nd respondent and not by the petitioner although

he was present in the meeting. Therefore, it appears

that, appointment of respondents 3 and 4 were taken up

without consent ofpetitioner who is a director ofthe first

respondent company and without notice to respondent

6 who is also a director of the first respondent company.

Therefore, it is also an act of mismanagement."

2. Along with the appeal, a petition for condonation of delay of 24

days has been filed wherein the following grounds have been shown

to condone the delay:

"2. The contents of the Appeal are not reproduced

herein for the sake of brevity and may kindly be read

as apart of the present application as well.

3. That the impugned order is liable to be set

aside by this Hon'ble Court on the grounds

mentioned in the Appeal.

4. that the present application is being preferred

by the Appellant as there is a delay of days in

re-filling the present Appeal before the Hon'ble

Court. That the Petition was first filed on 20.6.2017. -7-

It is submitted that the delay is owed to the curing

of defect with regard to Condonation of delay as it

was not in a proper format as required by this

Tribunal. It is submitted that the application went

for signatures as the verification and affidavit had

to be signed by the client in Gujarat but it got lost in

the transit. Therefore, we had to resend it to Gujarat

which has caused the delay. It is submitted that the

application is being filed as per the format of this

Learned Tribunal."

3. Having heard learned counsel for the appellants, we are not

satisfied with the grounds shown in the petition for condonation of

delay. There are six appellants in this appeal including the first

appellant company. Any one or other could have sworn the affidavit

and could have preferred the appeal on time but they failed to do so.

No explanation has been given as to why other appellants have not

taken any step for preferring the appeal within time. Merely because

one of the appellants had gone for, spiritual work to a different place

and purported to have suffered from diarrhoea for which no medical

certificate has been enclosed, this cannot be a ground to condone the

delay, particularly, when the Appellate Tribunal has been granted only

45 days to condone the delay and- not beyond the same.

4. This apart, on merits also, we do not find any ground to interfere

with the impugned order, in view of the observations made by the

Tribunal, as quoted above.

5. For the reasons aforesaid, we dismiss the petition for

condonation of delay. In effect, the appeal is dismissed being barred

by limitation. No costs.

(Justice S.J. Mukhopadhaya) Chairperson

(Balvinder Singh) Member(Technical)

/ ng/