Tulsi Vithalbhai Patel vs Hotel Oasis (Surat) Pvt. Ltd

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI Company Appeal (AT) No. 355 of 2017

IN THE MATTER OF:

Tulsi Vithalbhai Patel ...Appellant The Oasis Hotel, Opp BBC Tower, Near Railway Station, Sayajiganj, Vadodara- 390020, Gujarat

Vs

1. Hotel Oasis (Surat) Pvt. Ltd. ....Respondents B. No.21, Vishwakrupa Society, Near Gurudwara, Sumul Dairy Road, Surat-395004, Gujarat

2. Bhupendra Patel SY. No. 20-A-B. No. 21, Shri Vishwakrupa Co. Op. H Soc Ltd. Sumul Diary Road, Katargam, Surat-395004, Gujarat

3. Mr. Pushpak Patel E-2, Yogicharan Soc, Sumul Diary Road, Katargam, Surat-395004, Gujarat

4. Shantilal Patl Mahadev Falia Sojitra, Anand -387240, Gujarat

5. D.N. Motwani & Co. B/212, Third Floor, Nandan Apartment, Behind Ravirashmi Society, Ramdevnagar, Satellite, Ahmedabad-380015, Gujarat

6. Registrar of Companies ROC Bhavan, Opp. Rupal Park Society, Behind Ankur Bus Stop, Naranpura, Ahmedabad-380013, Gujarat

7. Satyaketu Vithalbhai Patel 35, Shree Niketan Soc, Sumul Diary Road, Surat-395004

Company Appeal (AT) No. 355 of 2017 2

8. Deep Gopalbhai Chokshi 17, Kailash Society, Station Road, Padra-391440, Vadodra, Gujarat

9. Jalpa Deep Chokshi 17, Kailash Society, Station Road, Padra-391440, Vadodara, Gujarat

10. Hemaben Vithalbhai Patel The Oasis Hote, Opp BBC Tower, Near Railway Station, Sayajigunj, Vodadara -390020, Gujarat.

Present:

For Appellants: Dr. U. K Chaudhary, Sr. Advocate with Mr. Mansumyer Singh, Mr. Himanshu Vij and Mr. Samridhi Gohia, Advocates. For Respondents: Mr. Dhiren R. Dave, PCS for Respondents No. 1 to 4. Mr. Sanjib K. Mohanty, Central Government Counsel for ROC, Gujarat.

ORDER

06.02.2018: Heard counsel for both sides. The learned counsel for the

appellant submits that the appeal has been filed against impugned orders

dated 31.08.2017 whereby the application I.A 252/2017 filed by respondent

no. 2 of original petition has been dismissed. The appellant was not party to

the application which was filed by the respondent no. 2 in the company

Petition, or the company petition.

2. It appears that earlier NCLT had in C.P. 17/2016 passed the following

order on 20.01.2017:

Company Appeal (AT) No. 355 of 2017 3

"1. The Petition under consideration is stated to be filed on 16 th

November, 2016 and thereupon enlisted today for admission.

Additionally, it has also been prayed that an Interim relief may be

granted. The 'Interim prayer' is reproduced verbatim as under:

"8. INTERIM PRAYER

1. Petitioners be given access to the company's

business premises and day to day operations & records

of the company to make sure of all legal compliances of

the company."

2. From the side of the Petitioner, Ld. Representative has

explained the background of the grievances of the Petitioner that on

the demise of their elder brother namely Mr. Vithal Patel on 4 th April,

2014, the Respondent no. 2 has forcefully taken over the charge of

the Company. He has clarified that Respondent no. 2 is son of Late

Mr. Vithal Patel. The Petitioner has alleged that R2 has wrongly

acted as MD of R1 Company and misused the funds by transferring

huge amounts to another Company M/s. Hotel Satyaketu Pvt. Ltd.,

owned by him. The Petitioner has objected the action of R2 but

without any effect. They have also tried to remove R2 as a Director

of R1 Company, but against the said decision of the shareholders a

case was filed by R2 in CLB and in CP No. 38/2014 obtained stay

on the implementation of the said decision. A copy of the said

decision bearing C.A. No. 246/2014 in C.P. No. 38/2014 dated 29th

Company Appeal (AT) No. 355 of 2017 4

January, 2015 is also placed on record. Be that as it was, the

present position is that the affairs of R1 Company are mismanaged

because the Income Tax Returns, Sales Tax Returns, etc. have not

been filed. Other legal formalities of the Companies Act have also not

been compiled with, it is alleged. The Petitioners are not allowed to

enter into the premises of the R1 Company and not allowed

inspection of any records. They are not aware of the AGM or any

other meetings of the R1 Company. Ld. Counsel of the Petitioners

has pleaded that the R2 be directed to hold the meeting of the

Company and the Petitioners be allowed to attend the said meeting.

3. From the side of the Respondents, it is vehemently objected

that the affairs of the R1 Company have been mismanaged because

the financial statements are reflecting better results. The argument

is that the Petitioners are not taking interest in the affairs of R1

Company and creating hurdles in the management of the Company.

By their behavior the Petitioners are creating problems in running of

the Company.

4. Considered the allegations and counter-allegations. As on

date, the Reply of the Respondents is not on record. Considering the

totality of the circumstances narrated, the petition in question

requires judicial adjudication, hence admitted. The parties to this

litigation are directed to complete the pleadings as early as possible.

Company Appeal (AT) No. 355 of 2017 5

4.1. As far as the decision on 'Interim prayer' is concerned, there

are no two opinions that a Company incorporated under the

provisions of Companies Act should comply with the statutory

obligations within the time prescribed. At this preliminary stage, the

Respondents have not established whether the due compliance was

timely made. Nevertheless, the requirement of the law U/s 96 of

Companies Act 2013 is that AGM should be held within the time

specified. Due to this reason, it is hereby directed, by invoking the

jurisdiction prescribed U/s 97 of Companies Act, 2013, that AGM

should be held of R-1 Company within 15 (fifteen) days on receipt of

this order. Considering the nature of dispute among the family

members, it is hereby directed that the AGM shall be held at the

office of the Company during business hours and the Notice of the

meeting should be communicated through proper service intimating

the time and the date of the meeting. The Members/ Directors are

directed to maintain peace and harmony at the time of AGM so that

the ordinary business of the Company should be conducted

properly.

5. The apprehension expressed by the Petitioner is that the

meeting may not be conducted in lawful manner. As a consequence,

I direct the Ld. Regional Director, (NWR) Ministry of Corporate

Affairs, 'R.O.C. Bhavan', Naranpura, Ahemdabad to either present

himself or depute any officer of his office not below the rank of

Company Appeal (AT) No. 355 of 2017 6

Assistant Director, to supervise the AGM. The R1 Company is under

obligation to implement the directions of this Order without any fall

or deviation. The date, time and place of the meeting should be

communicated to the Regional Director, Ahemdabad so that under

his supervision the AGM can be conducted.

6. As a result, ad-interim relied is granted. Let the C.P. be

enlisted for hearing on 9th March, 2017. Ordered accordingly."

3. The learned counsel for appellant is submitting that there were no

qualified directors and 3 out of 4 earlier directors had been disqualified and the

4th director had been removed by the earlier 3 directors which led to the filing

of the petition. It was in such situation that the AGM was to be held in

compliance of the orders dated 20.01.2017. According to the learned counsel in

such situation fresh board of directors was appointed and the AGM was held.

Subsequently, when the application was filed by respondent no. 2 (as arrayed

in the petition) the same was rejected. It is claimed that the appellant was one

of the directors who was appointed in the AGM alongwith 4 others and being

aggrieved he has filed this appeal.

4. The learned PCS claiming to represent respondent no. 1 to 4 is

submitting that the order dated 20.01.2017 was passed on the request of the

petitioners but they were not allowed to hold the meeting regarding which they

have filed the I. A. No. 33/2017 in the NCLT which is pending. It is stated that

in spite of directions of NCLT dated 20.02.2017 that the AGM should be held

Company Appeal (AT) No. 355 of 2017 7

under the supervision of Regional Director, the Regional Director was not

informed nor presence ensured. Counsel for appellant states that date of AGM

was informed to Regional Director but none remained present. Learned PCS

states that there is no record of any intimation sent to Regional Director.

5. The NCLT passed the impugned order which reads as under:

"Learned PCS Mr. Hitesh Buch present for Applicant. Learned PCS

Mr. Dhiren Dave present for Respondent in IA 252/2017.

Heard arguments of Learned Counsel for Applicant and Learned

Counsel for Respondent in IA 252/2017.

This application is filed by Respondent no. 2 seeking direction to

ROC Ahmedabad. Gujarat to enable to applicant to file DR 12 and

other forms in connection with Annual General Meeting held on

02.03.2017 by including the name of the applicant and other

appointed directors namely Mr. Tulsi Vithaldas Patel, Shrimati

Hemaben Vithaldas Patel, Mr. Deep Gopalbhai Chokshi and Mrs.

Jalpa Deep Chokshi in the list of Directors and to associate them to

Respondent no. 1 Company.

It appears that Respondent no. 2 convened Annual General Meeting

purporting to act as per the order of this Tribunal 21.02.2017 which

in fact was ordered for statutory compliances only. But applicants

and other in the so called AGM passed resolution appointing

Respondent no. 2 who ceased to be a director which is under

Company Appeal (AT) No. 355 of 2017 8

challenge in an application pending before Hon'ble High Court of

Gujarat in a company application and other persons named above

as directors.

The above said action on the part of the applicant is not at all in

pursuant to the directions of this Tribunal dated 20.01.2017 more so

when the application of the Respondent no. 2 to restore him as

director is pending before Hon'ble High Court of Gujarat. Therefore, I

see no grounds to admit this application.

This application is dismissed."

6. Both the orders speak for themselves. The appellant was not party in the

Company Petition nor the applicant whose application has been rejected. We

find that there is no case made out for this Appellate Tribunal to directly

entertain the appeal of this appellant and decide the issues which are being

raised. It is for the appellant to move appropriate forum for appropriate relief if

he is aggrieved. The appellant cannot file the appeal over the rejection of

application which was application filed by somebody else. He cannot maintain

appeal from order of rejection of an application to which he was not party, nor

the company petition in which it was filed.

7. The learned counsel for the appellant says that the Company Secretary

cannot appear for the company. The Company Secretary says that the

company is represented by the 3 Directors respondent nos. 2 to 4 who are

marked as disqualified but on filling of returns their case is under

Company Appeal (AT) No. 355 of 2017 9

reconsideration. The Company Secretary however accepts that he has not filed

memo for Respondent no.1. We are not entering into this controversy.

8. At the behest of appellant we do not find reason to interfere in the

Impugned Orders. The appeal is rejected. No orders as to costs.

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

(Balvinder Singh) Member (Technical)

sh/nn

Company Appeal (AT) No. 355 of 2017