Pankaj Agarwal vs Surya Maintenance Agency Private ...
- CitationCompany Appeal (AT) No. 9 of 2023
Ratio decidendi
The rule this decision rests on
Where a shareholder's standing under Section 244(1) of the Companies Act is disputed on the ground that changes in shareholding were effected at board meetings of which he was not given notice, and no proof of service of the notices of those meetings is produced, the shareholder is entitled to an opportunity to apply for waiver of the notice requirement before the Tribunal, which must consider such an application on its merits.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE MATTER OF: Pankaj Agarwal ...Appellant
Versus
Surya Maintenance Agency Private Ltd. & Ors. ...Respondents
Present: For Appellants : Ms. Purti Gupta and Ms. Heena George, Advocates For Respondents : Dr. U.K. Choudhary, Sr. Advocate, Mr. Akshit Gupta and Mr. M. Singh, Advocates. ORDER
(Hybrid Mode) 30.05.2024: This appeal is against an impugned order dated 03.01.2023
passed by Ld. NCLT/New Delhi whereby the petition filed by the Appellant
under Sections 241 & 242 of the Companies Act for Oppression and
Mismanagement in the Respondent No. 1 Company by Respondent Nos. 2 & 3
was dismissed. It is the submission of the learned Counsel for the Appellant at
the time of filing of the petition there were four shareholders and as such by
virtue of Section 244(1) he had every right to file a petition under Sections 241
& 242 of the Companies Act. However, when the Respondent appeared before
the learned NCLT they disclosed the shareholding has been changed in the
Board Meetings dated 11.06.2022 and dated 22.08.2022.
2. The submission of the learned Counsel for the Appellant is he was never
made aware of the Board's meetings dated 11.06.2022 and 22.08.2022 and his
petition is premised on the Annual Returns of Respondent No. 1 Company for
the years 2019-20 and 2020-21 duly filed before the ROC under the signature
...contd...p/2..
of Respondent No. 2. Such returns were filed prior to filing of the Company
Petition. It is alleged no notice was ever given to him of change of shareholding
and he came to know of this fact only upon filing the petition.
3. Learned Counsel for the Respondents submits Section 173(3) of the
Companies Act provides the mode of service even by hand delivery.
Nevertheless, we do not file any proof in writing of the service of the notices of
such Board Meetings dated 11.06.2022 and 22.08.2022 to the Appellant
herein. Even no such notice was annexed along with an affidavit filed by the
Respondent before the Ld. NCLT.
4. In these circumstances, more specifically in view of Appellant's
contention of never been aware of change of shareholding, atleast an
opportunity ought to have been granted to him to file an application for waiver.
5. We also do not find any proof of service of notices of the meetings dated
11.06.2022 and 22.08.2022, upon the Appellant and hence we set aside the
impugned order to grant an opportunity to the Appellant herein to file an
application for waiver which be considered by Ld. NCLT on its own merits. The
rights and contentions raised by the parties are lept open.
This appeal stands disposed of. All pending applications accordingly
stand disposed of.
[Justice Yogesh Khanna] Member(Judicial)
[Mr. Ajai Das Mehrotra] Member (Technical)
Akc/Md.
Company Appeal(AT) No. 09 of 2023 Page 2 of 2
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