Birendra Kedia vs Dinesh Kumar Jalan & Ors

IN THE MATTER OF: Birendra Kedia .....Appellant Vs. Dinesh Kumar Jalan & Ors. ......Respondents

Present : For Appellant: Though present but not marked attendance

06.11.2019 - Heard Learned Counsel for the Appellant. It is stated that in

Company Petition TA No. 43/18 is pending before the 'National Company Law

Tribunal', Jaipur and the Petition could have been taken up and finally decided

but the Tribunal has passed the Impugned order dated 11th October, 2019

permitting AGM to be held under supervision of a Chairperson appointed. The

Tribunal has allowed agenda interalia to consider the appointment of Mr.

Mahesh Kumar Jalan as Director of the Respondent Company.

Learned Counsel states that the appeal has been filed questioning the

appointment of Chairperson as well as admitting the inclusion of the subject in

the agenda regarding appointment of Mr. Mahesh Kumar Jalan as Director. It

Company Appeal (AT) No. 301 of 2019 admin 1 is stated that in the company Petition a Prayer (ii) which has been referred in the

appeal para 7 'O' reads as under: -

"ii) The Respondent company be directed to

appoint Mahesh Kumar Jalan as the Director of

the company in order to have equal management

participation by the Jalan Group and also in view

of the MOU dated 23.09.2006;

It is stated that this is the main prayer of the Company Petition and impugned

order permitted such agenda to be included in the AGM which would amount to

granting of the Prayer made in the Company Petition itself. It is stated that in the

Companay there are two groups, one is of the Jalan Group and other is Kedia Group.

The impugned order reads as follows:-

"ORDER

The grievance and submission of the

Petitioner is that the agenda proposed by him should be

taken into consideration for the AGM keeping in view that

more than two weeks have already lapsed since his

initial proposal for including it in the Agenda of the AGM.

On 10.10.2019, the Tribunal had allowed the parties to

submit their proposals, if any, for Agenda for the AGM.

The petitioner/ Jalan group has proposed appointment of

Company Appeal (AT) No. 301 of 2019 admin 2 Mr. Mahesh Kumar Jalan as Director of the Respondent

Company in accordance with the Companies Act, 2013

and the Articles of Association of the Company. The

Respondent/ Kedia group has not submitted any specific

proposal. We therefore direct the AGM to be held by

notice as per statutory requirements and inclusion of the

agenda as proposed by the petitioner/shareholders to be

taken up in consideration along with other items. We

apprehend that the AGM may not proceed without

creation of impediments by either side and therefore it is

directed that an independent Chairperson shall chair the

AGM, supported by a Scrutinizer, assisting in Secretarial

tasks inter-alia for proxy, attendance, polling, etc., and

they shall jointly file a report before this Bench on the

proceedings of the meeting. Accordingly, Mr. Shivangshu

Naval, Advocate, High Court of Rajasthan (Mobile No.

9680007333) is appointed as the Chairperson and Mr.

Pradeep Pincha, Practising Company Secretary (Mobile

No. 982915753) is appointed as the Scrutinizer for the

AGM. The said AGM shall be held at 03:30 PM on

Saturday, 09.11.2019, at the Registered Office of the

Respondent Company. If for reasons whatsoever, the

AGM cannot be so held or concluded on 09.11.2019, then

Company Appeal (AT) No. 301 of 2019 admin 3 the same shall be held or resumed, as the case may be,

at 03:30 PM on Monday, 11.11.2019 at the Registered

Office of the Respondent Company. The Agenda for the

AGM shall be circulated afresh by email and Speed Post

by the Respondent Company by 18.10.2019 and shall be

immediately intimated/copied to the designated

Chairperson and the Scrutinizer along with proof of

dispatch to the members/shareholders. The Agenda

shall also be copied to the counsels of the Petitioners and

Respondents for onward communication to their clients.

If the Agenda cannot be or has not been, circulated as

directed, it shall be deemed to be the Agenda already

sent earlier for the meeting scheduled on 30.09.2019

(except that dates, time and venue shall be as directed in

this order) together with the addition of the proposal of

the petitioner. Any communication received or sent by the

Respondent Company in respect of the said AGM, prior

or subsequent to this order, including inter-alia proxy

forms, shall be intimated/copied forthwith to the

Chairperson who shall be competent to seek originals

thereof. The proceedings of the AGM shall be video

recorded. The Chairperson and the Scrutinizer shall be

paid an honorarium of Rs. 30,000/- and Rs. 25,000/-

Company Appeal (AT) No. 301 of 2019 admin 4 respectively which expense shall be shared equally by

the Petitioner and Respondent groups, besides equal

sharing of videography expenses. The joint report of the

Chairperson and the Scrutinizer shall be filed before the

Tribunal within a week after conclusion of the AGM and

a copy of the same shall be provided to the counsels for

the Petitioners and the Respondents. No motion seeking

change or removal or suspension of the Chairperson or

Scrutinizer shall be moved by any party prior to or at the

AGM. We direct that the conduct of the meeting and

voting on all points on the Agenda shall be carried out,

notwithstanding raising of any technical objection by

either party or group, in a bid to stall the proceedings or

otherwise. In the event of any objection whatsoever, by

whomsoever, the same shall be decided by the

Chairperson summarily, whose decision shall be final

and who shall strive to complete the proceedings in an

orderly manner. Any such issue shall be included in the

report to be filed by the Chairperson and Scrutinizer. The

Chairperson shall be empowered to regulate/restrict

entry to the venue of the AGM to only concerned and

authorized persons. All directors and

members/shareholders of the Respondent Company are

Company Appeal (AT) No. 301 of 2019 admin 5 directed to cooperate with the Chairperson and the

Scrutinizer, including through issuance of necessary

instructions of the staff, employees, consultants,

concerned persons, or making available any/all records

of the Company, or otherwise, for proper preparation for

and holding of the AGM. Any report of non-cooperation,

unruly conduct or obstruction of proceedings shall be

viewed seriously. No party shall take any consequent

action such as filing or any further steps as a sequel of

the AGM till the report of the AGM has been considered

by the Tribunal and appropriate directions issued. To

come up for further consideration on 21.11.2019."

On perusal of the above impugned order it clearly shows that the parties are

having Strained Relations which is reflected from the impugned order where the

Tribunal is taking precautions on various issues for the holding of the AGM. It

has expressed apprehension of impediments by either side. The Tribunal has even

directed video recording. It has given various directions for due holding of the AGM.

It has also cautioned that any report of non-cooperation would be viewed seriously.

Looking at the impugned order, it appears to us that it would not be appropriate

for us to interfere in the order passed by the Tribunal. It is in the interest of the

Company that parties should co-operate. The Tribunal has given directions that

no party shall take any consequent action such as filing or any further steps as a

Company Appeal (AT) No. 301 of 2019 admin 6 sequel of the AGM till the report of the AGM has been considered by the Tribunal and

appropriate directions issued. If the Tribunal while dealing with the Company

Petition has the benefit of the majority in the AGM there would be nothing wrong.

The ultimate decision however, in the Company Petition would be of Tribunal.

In this view of the matter, we find no reason to entertain this appeal.

The appeal is dismissed at the stage of admission.

[Justice A.I.S. Cheema] Member (Judicial)

[Kanthi Narahari] Member (Technical)

[V.P. Singh] Member (Technical)

ss/gc

Company Appeal (AT) No. 301 of 2019 admin 7