Decided on October 16,2014

Atul Kantilal Shah Appellant


RAJESH H.SHUKLA, J. - (1.) RULE . Service of rule is waived by learned advocate Shri Navin Pahwa for the respondents. The present petition is filed by the petitioner under Articles 14, 19 and 226 of the Constitution of India as well as under the Companies Act, 2013 for the following prayers on the grounds stated in the memo of petition : "(A) That Your Lordships may be pleased to issue a Writ of Mandamus or any other appropriate writ, direction or order ordering and directing the respondents to forthwith comply with the requisition made by the petitioner by his letter dated 7th August, 2014 (Exhibit -B hereto) and add the said agenda to the Annual General Meeting proposed to be held on 22nd September, 2014 or any other date as directed by this Hon'ble Court; (B) That Your Lordships may be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction thereby quashing and setting aside the decision of the respondent company for not including the items of agenda as per the petitioner's letter/request dated 7th August, 2014 in the proposed AGM to be held on 22nd September, 2014 and be further pleased to quash and set aside the letters dated 18th August, 2014 and 8th September, 2014 (Exhibits - C and F) calling for the records of the case and after examining the legality, validity and propriety thereof to quash and set aside the same; (C) That pending the hearing and final disposal of this petition, this Hon'ble Court be pleased to stay the convening of the Annual General Meeting of the respondent company proposed to be held on 22nd September, 2014 or, in the alternative, Your Lordships may be pleased to direct the respondents herein to maintain statusquo as regards any policy decisions including decisions for appointment of new Director/Directors during the pendency and final disposal of the present petition; (D) An ex -parte ad -interim relief in terms of Para 18(C) above may kindly be granted; (E) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted."
(2.) HEARD learned Sr. Counsel Shri Mihir Joshi appearing with learned advocate Shri Vimal Patel for the petitioner and learned counsel Shri Navin Pahwa for the respondents.
(3.) LEARNED Sr. Counsel Shri Joshi referred to the notice produced at p. 18 regarding the appointment of directors and submitted that as stated in the communication/notice dated 7.8.2014 given by the petitioner at Exhibit -B, the petitioner proposed the candidature of two persons for appointment as directors of the company under sec. 160 of the Companies Act, 2013. He pointedly referred to the details to support his submission how the respondent company has tried to manipulate and raise doubt about receipt of the notice. He referred to p. 30 of the petition and submitted that as stated it was refused and still as per their own communication by the company to the petitioner it has been accepted that the letter/notice dated 7.8.2014 has been received through the courier and they have raised various issues. The said communication is dated 18.8.2014 and immediately the petitioner has responded by another communication dated 26.8.2014 at Annexure -D. He therefore submitted that the present petition has been filed for appropriate direction and he submitted that the writ would lie against the private company. Learned Sr. Counsel Shri Joshi tried to submit that as observed in the judgment in the case of Gopal Vyas v. Sinclair Hotels and Transportation Ltd., 1990 AIR(Cal) 45 the refusal by the company to circulate the notice on the ground of non -compliance of any provision is not justified. He pointedly referred to the observations made in this judgment. Learned Sr. Counsel Shri Joshi also made submissions with regard to maintainability of the writ petition and submitted that the scope of Art. 226 is required to be considered that appropriate writ or order or direction can be issued for "any other purpose" which is wide enough to include such a situation where the person has failed to discharge a public duty or has acted contrary to the statutory norms or the provision of law.;

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