A.BANDOPADHYAY,MEMBER - (1.) IN this order I am considering the Company Petition No. 104/2012 moved by Dr. Tapan Kr. Chakraborty with other petitioner Nos. 2 to 15 against the respondent -company, viz., VIP Apex Medical Centre (P.) Ltd. ('R -1 -company') and other respondents, as indicated in the petition, under sections 397/398, 402, 403 and 406 of the Companies Act, 1956 ('the Acf). Briefly, the main averments and the challenges made in the petition are as under: (i) The respondent -company was incorporated on 14th July, 1994 under the provisions of the Act and is a private limited company limited by shares. The registered office of the company is situated at H/1 -16, Sachindra Lal Sarani, Joramandir, Baguihati, Kolkata -700 051. The company was initially known as VIP Apex Medical & Research Centre (P.) Ltd. and subsequently, the name of the company was changed to VIP Apex Medical Centre (P.) Ltd. on or about 12th June, 2003. Consequently, after the change of the name of the company on and from 12th June, 2003, the management of the company recalled the share certificates and the petitioners had submitted their share certificates with the company for the purpose of issuance of fresh share certificates subsequent to the change of name. The petitioners, however, did not receive the new share certificates from the company till the date of filing of the petition. (ii) The authorised capital of the company at present is Rs. 2,21,00,000 divided, into 22,10,000 equity shares of Rs. 10 each. The valid, issued, paid -up and subscribed share capital of the company is Rs. 1,32,65,000 divided into 13,26,500 equity shares of Rs. 10 each. The respondents are wrongfully and illegally contending that the issued, paid -up and subscribed share capital of the company is Rs. 1,98,90,000 divided into 19,89,000 equity shares of Rs. 10 each. (iii) The company has been engaged in the business of running a nursing home situated at H/1 -16, Sachindra Lal Sarani, Joramandir, Baguihati, Kolkata -700 051. The company has also been running a pathological centre at Madhyamgram under public -private partnership with the State of West Bengal. (iv) The details of shareholdings of the petitioners and the respondents for the period from 31st March, 2005 to 31st March, 2011 have been indicated at page 218 of the petition which are mentioned below: (v) According to the above details, the shareholdings of the petitioners have been successively reduced from 42.57 per cent as on 31st March, 2005 to 29.16 per cent as on 31st March, 2011. On the other hand, during the said period, the shareholdings of respondent No. 2 and his group have been increased from 30.24 per cent to 56.83 per cent (Reference: Written Notes of petitioners). (vi) The petitioner Nos. 1 to 4 were introduced to the company on the basis of their professional expertise as doctor and also because of the investments made by them. Similarly, petitioner No. 5 was also introduced to respondent -company on the basis of his professional expertise as doctor and has become shareholder in the respondent -company in the year 2010 -11 by the investment made by him. The petitioner Nos. 8 to 13 are laboratory technicians of the company. (vii) The petitioner Nos. 1 to 3 devoted their professional time towards the development of the company which ultimately made the respondent -company a reputed medical institute. The administrative work and the financial activities of the company were solely looked by respondent No. 2 and the petitioner Nos. 1 to 5 were working in the company as directors. The petitioner Nos. 1 to 3 did not take any remuneration from the company as directors, but received fixed remuneration for services rendered by them in the said nursing home as medical officers. (viii) The company did not declare any dividend save and except for financial year ending 31st March, 2001 and 31st March, 2011, even though the company has made substantial profits during all these years. The earning of the company was transferred to the general reserve of the company and the profits of the company were not distributed amongst the shareholders by way of dividends. (ix) The respondent No. 2 used to prepare the minutes of Board meetings of the company without actual Board meetings being held and the petitioner Nos. 1 to 3 as directors of the company have been called upon to sign such documents as desired by respondent No. 2. By relying on respondent No. 2, petitioner Nos. 1 to 3 have signed the documents pertaining to the Board meetings of the company, annual general meeting ('AGM') of the company as well as balance sheets of the company. However, respondent No. 2 had not shared with the contents of the documents and no explanation had been given as regards the purpose of signing such documents. The petitioners under bona fide belief had not questioned the genuineness of purpose of such documents as has been referred to by respondent No. 2. (x) Respondent No. 2 called upon some of the petitioners to invest money for the purpose of buying a plot of land in the name and style of Apex Medilink (P.) Ltd. at Madhyamgram. The petitioner Nos. 1 and 2 and some other persons contributed to the share capital of Apex Medilink (P.) Ltd. to facilitate buying a plot of land of the said company in Madhyamgram. (xi) Even though the plot of land was bought in the name of the aforesaid company for setting up a nursing home at Madhyamgram, such project was ultimately found to be not feasible and the plot of land owned by Apex Medilink (P.) Ltd. was sold for a sum of Rs. 40 lakh in order to set up an annexe building next to the existing nursing home for better and proper administration. Respondent No. 2 prevailed upon petitioner Nos. 1 and 2 and the outsiders to sell the shares held by them in Apex Medilink (P.) Ltd. to the company at face value which was carried out. (xii) During the period from March 2006 till 31st March, 2011, respondent No. 2 issued share capital to himself and his other family members and the associates, indicated as under: (xiii) The above issue and allotment of shares of the company subsequent to 31st March, 2006 have been stated to be null and void and illegal because of the following reasons: (a) No Board meetings for issue and allotment of share capital were held. (b) At the time of issue and allotment of share capital, it was on the understanding that the existing shareholding position as on 31st March, 2005/2006 will not be disturbed, but respondent No. 2 has now claimed that the shareholding position stood disturbed and, thus, respondent No. 2 has sought to rescind from his earlier stand. (c) The company did not benefit out of the issue and allotment of the share capital and neither the shareholders nor the Board of directors of the company were taken into confidence for the actual purpose of the issue and allotment of share capital. (d) The issue and allotment of share capital was for the purpose of cornering the majority shares in favour of respondent No. 2, his wife (respondent No. 3) and 2 daughters (respondent Nos. 5 and 6), Mrs. Shyama Paul (respondent No. 4) and Pinku Bera (respondent No. 7) at the cost and expense of the other shareholders. (e) The existing partnership principles of the company as at 31st March, 2005/2006 stood disturbed by the purported issue and allotment of share capital. (f) The purported issue and allotment of shares has been done in breach of the fiduciary duties for the sole and whole reason of cornering the majority shares of the company in favour of respondent No. 2, his wife, 2 daughters, Mrs. Shyama Paul and Pintu Bera. (xiv) Respondent No. 2 has been alleged to indulge in widespread siphoning of funds of the company by way of following methods: (a) Respondent No. 2 used to raise fictitious vouchers on the company without any expenses being actually incurred on behalf of the company. (b) Respondent No. 2 used to show payments of huge amount of money to the staff by raising vouchers for such payments, but in reality, the company need not pay the relevant staff the requisite quantum of money. (c) Respondent No. 2 caused the company to make payment of salary to staff by drawing cheques and kept the signed cheque books of the staff with him so that after credit of the account of the staff by payment of money through cheque by the company, the bank of such employees would be operated through signed self -cheques of such employees in favour of respondent No. 2. (d) Respondent No. 2 had shown payments to certain persons as employees who were, in fact, not the employees of the company and in the process, the moneys of the company were diverted for his personal use. In addition, respondent No. 2 used to allow the suppliers to over invoice the company and take out the cut -money/commission from such suppliers. (e) The company has been forced by respondent No. 2 to buy medicine from a medical shop owned by respondent No. 3 being wife of respondent No. 2. (f) Moneys paid to Dibyendu Santra and Ujjwal Santra as salary by the company were subsequently taken back by way of gifts in the names of son -in -law of respondent No. 2 and his wife and the relevant copies of gift deeds have been annexed as per Letter -E to the petition. (xv) While looking after the affairs of the company, respondent No. 2 had indulged in various acts of mismanagement some of which have been indicated as under: (a) Respondent No. 2 arbitrarily selected certain employees/staff for the nursing home without looking into their qualification/competence. (b) Respondent No. 2 did not pay adequate salary to deserving candidates and as a result, the company failed to retain people with expertise in view of no salary being paid by respondent No. 2 and his habit of taking back a portion of the moneys paid as salary. (c) Respondent No. 2 did not provide for an adequate generator till 2011 and in one incident, a refrigerator containing a life saving medicine had to be shut out as the load could not be borne by the generator installed. (d) The nursing home has been forced to purchase medicines from the shop run by the wife of respondent No. 2 and the cost of boarding and lodging of the staff of the medicine shop have been paid out of the funds of the company even though the company has not been benefited out of the staff looking after the medicine shop because no services as such have been rendered to the company. (e) There is no housekeeping procedure of the company at the nursing home and the said nursing home is being run as per the wishes and dictates of respondent No. 2 whimsically. (xvi) The AGM of the company for the financial year 31st March, 2011 was held on 19th September, 2011 and as per the notice for such AGM, respondent Nos. 5 and 6 have been sought to be appointed as whole -time director of the company from additional directors of the company. However, no Board meeting has been convened for the purpose of co -opting any additional director of the company prior to such AGM. Petitioner Nos. 1 to 3 were not aware of any co -option of additional director of the company and the petitioner Nos. 1 and 2 were kept in dark, while putting their signatures on any alleged paper produced by respondent No. 2 through his representative. (xvii) The AGM of the company was held on 19th September, 2011 for the financial year 2010 -11 and petitioner Nos. 1 to 3 were present and during the conduct of the business of the meeting, several questions were raised with regard to the functioning of the company and it was decided that such questions raised by the members would be addressed on a subsequent day of the meeting, but no such adjourned meeting was subsequently held to answer the questions raised by the petitioners in the earlier meeting. On the contrary, respondent No. 2, vide his letters dated 17th September, 2011 and 21st September, 2011, in reply to several letters of petitioner No. 3, duly discharged petitioner No. 3 from services rendered by him to the respondent No. 1 company within a month from 19th September, 2011. Petitioner No. 3 felt humiliated with the contents of the letter of respondent No. 2 and as a result thereof, did not turn up to render service to the nursing home With effect from 20th September, 2011 (copies of all such letters have been placed with the petition). (xviii) One Board meeting of the respondent -company was held on 22nd October, 2011 and a notice of such meeting was duly sent to residential address of petitioner Nos. 1 and 2 when they were out of station and consequently, petitioner No. 3 requested in writing on 17th October, 2011 for postponement of the scheduled meeting on any other day. However, the petitioners came to learn that the Board meeting was held on 22nd October, 2011 and resolution was taken to discharge petitioner Nos. 1 and 2 by respondent No. 2 and other directors being family members of respondent No. 2 and accordingly, respondent No. 2 being the managing director of the respondent -company, communicated in writing on 24th October, 2011, about the Board resolution to petitioner Nos. 1 and 2 (copies of all such letters have been placed with the petition). (xix) Petitioner No. 2, on 8th October, 2011 and 12th November, 2011, made two several complaints with Baguihati Police Station and New Town Police Station respectively with regard to the illegal activities undertaken by respondent No. 2 (copies of such complaints have been annexed to the petition). (xx) Petitioner Nos. 1 to 3 have now been prevented from attending the nursing home and to look after the patients of the nursing home for which they have raised strong objection by sending letters to the company disputing the validity of alleged meeting dated 22nd October, 2011 (copies of such complaints have been annexed to the petition). (xxi) The petitioners have submitted that the company is in the nature of quasi -partnership and respondent Nos. 2 and 4 have acted in breach of the partnership principles on which the company was being run. (xxii) The respondents have suppressed true facts from the petitioners and have sought to indulge in personal gain at the expense of the company. The respondents are treating the company and its assets and property as their personal property with a view to diminish the value of the investments of the petitioners and the public. The respondents have not disclosed the true and correct details of the financial dealings in connection with the business of the company. Respondent No. 2 is operating all bank accounts of the company and the actual accounts of the company are being suppressed from the shareholders. No such accounts have been made available in spite of repeated requests and demands. Based on the averments made as above, the following main reliefs have been claimed in the petition: (a) All issue and allotment of shares made subsequent to March 2005, be declared null and void and the shareholding position of the company as on 31st March, 2005/2006 be restored back. (b) The respondents be directed to render true and proper accounts of all dealings and transactions of the company and necessary investigation should be carried out about the dealings of the respondents concerning the management and affairs of the company and appropriate directions be issued pursuant to such investigation in accordance with Schedule XI read with section 406 of the Act. (c) Order of injunction restraining respondent Nos. 2 to 4 to discharge duties of directors of the company or representing the company in any manner whatsoever, order of injunction restraining, the respondents from altering the shareholding pattern of the company, order of injunction restraining the respondents from selling, disposing, encumbering or parting with possession of any movable or immovable assets of the company, order of injunction restraining the respondents from obtaining any loan/financial assistance from banks or financial institutions or any other party in the name of the company or in connection with the affairs of the company, may be passed. (d) Appropriate directions be given for purchase of the shareholdings of respondent Nos. 2 to 6 of and in the company by the petitioners and/or any of them and/or by the company on such terms and conditions as to which this hon'ble Board may deem fit and proper. As against the above averments made in the petition and the reliefs claimed thereat, the respondents in their affidavit -in -reply, in brief, had made the following submissions: (i) Save and except whatever has been expressly admitted in the affidavit -in -reply, respondent No. 2 had denied each and every statement, averments and allegations made in the petition being baseless and false. (ii) It has been submitted by respondent No. 2 that petitioner No. 1 was introduced to him as patient in 1981 and after completion of his study and obtaining the degree as MD (Gynecologist), he was allowed to start his practice as a senior gynecologist under supervision of respondent No. 2 at the premises of the respondent -company. Respondent No. 2 offered petitioner No. 1 to be a member of the company at the time of its formation in 1994 and thereafter, he joined the company and had been working satisfactorily from 1999 to August 2011. (iii) Petitioner No. 1 had acted virtually as executive director of the respondent -company and was managing director of Apex Medilink (P.) Ltd., having its registered office at the residential address of petitioner No. 1. Petitioner No. 1 looked after the day -to -day administrative work of the respondent -company and used to convene the meetings, write the minutes of the meetings, looked after the accounts, issue, sign the share certificates and dividends and also issue appointment letters of the staff, doctors and others indicating their salaries and terms of service, etc. (iv) In the meeting of Board of directors held on 19th November, 2010, the petitioner No. 1 wrote the minutes of the meeting and the decisions regarding the installation and purchase of lift, fire arrangement and installation of generator. In the resolution taken at the meeting dated 14th February, 2011, petitioner No. 1 noted down the decision of appointing 2 new directors and the extracts of the resolutions in the said meetings dated 19th November, 2010 and 14th February, 2011 have been annexed to the affidavit. However, the attendance sheets and minutes of the meetings dated 21st December, 2010 and 31st March, 2011 showing the minutes of the meetings written in handwriting of petitioner No. 1 and the share certificates and issuance of appointment letters signed by petitioner No. 1 have been annexed collectively as 'R -5', 'R -6' and 'R -7' for identification. (v) Petitioner No. 1 convened the AGM dated 19th September, 2011 and the meeting of Board of directors relevant to the AGM. He has submitted the audited report, statement of accounts of the respondent -company as on 31st March, 2011 signed by him and virtually has conducted the AGM. The relevant copies of the notices of the AGM, attendance register of meeting, minutes of the meeting, audited report and statement of accounts signed by petitioner No. 1 have been collectively marked as 'R -8' for identification and enclosed with the affidavit in reply. (vi) The remuneration and fees for attending the meeting of Board of directors were scheduled and fixed with the consent of petitioner No. 1 and he used to receive said remuneration and fees for attending the meeting by cheque and the copy of the attendance sheet and the minutes of the said meeting of the Boards of directors dated 29th July, 2011 and 3 vouchers in the name of petitioner Nos. 1 to 3 accepting director's fees through cheques have all been placed in 'R -9' for identification. (vii) Petitioner No. 2, after her marriage with petitioner No. 1, started her practice at respondent -company as pediatrician with the active help of respondent No. 2 and petitioner No. 1. As a pediatrician petitioner No. 2 was entrusted to take responsibility of NICU of the respondent -company, but she failed to develop the same and created unhealthy atmosphere amongst the staff who were not satisfied with her temperament and behaviour and manner. (viii) A mass petition initiated by the staff of the respondent -company ventilating their grievances against ill behaviour of petitioner No. 2 have been forwarded to respondent No. 2 for which a special Board meeting was called to discuss the said complaint, but the meeting was cancelled at the instance of petitioner No. 1 because he objected to such discussion in a meeting in front of others. Accordingly, the said special Board meeting dated 13th April, 2011, with signature of all directors, has been cancelled (placed as 'R -10' for identification). (ix) Petitioner No. 3 has been stated to be classmate of respondent No. 2 in MBBS in R.G. Kar Medical College and Hospital. As per his request, he was allowed to join as a Pathologist in the pathological unit of the respondent -company and he was admitted as shareholder of the company and in the Board of directors. Me was asked to devote at least 3 hours time to the pathological unit to run it smoothly. On the contrary, petitioner No. 3 neglected to render service as a pathologist and hardly he gave 10 minutes time a day on an average causing serious problem to the respondent -company. He spent most of his professional time at different units at different areas, but was irregular in attending to the work in respondent -company and he hardly visited twice in a week for 10 -15 minutes a day per visit and was very casual and not sincere in his approach towards the work assigned to him by the respondent -company. (x) Petitioner No. 3 vide his letter dated 8th September, 2011 claimed a sum of Rs. 40,000 per month from the respondent -company without considering his contribution and time devoted and spent by him in respondent -company. The respondent -company refused to provide him the said sum as claimed by letter dated 17th September, 2011 and in consequence, he gave a baseless reply on 20th September, 2011 and discontinued from the work assigned to him. (xi) The meeting of the Board of directors was convened by petitioner No. 1 on 17th September, 2011 for leasing out a portion of the building of the respondent -company. Petitioner No. 1 informed the members present in the meeting for the agenda for letting out the same to open a retail medical shop and the matter was discussed in detail among the members and respondent No. 3 and it was unanimously resolved to let out the portion of the building by petitioner No. 1 to respondent No. 3 in the said meeting. The copy of the attendance sheet, minutes of meeting and rent receipt signed by petitioner No. 1 have been marked as Letter 'R -19' collectively for identification. (xii) The company under the name and style of Apex Medilink (P.) Ltd. has been run with Board of directors including petitioner Nos. 1 and 2 and petitioner No. 1 happens to be the managing director of the said company. Vide resolution taken in a meeting of Board of directors held on 19th November, 2010, this company was taken over by the respondent No. 1 -company and the minutes of the meeting were written by petitioner No. 1 and decision was taken to merge the said company, viz., Apex Medilink (P.) Ltd. with the respondent No. 1 -company and share certificates accordingly have been transferred to respondent No. 1 -company. The registered office of the said company is located at residential address of petitioner Nos. 1 and 2. The copies of the minutes of the Board meeting and the notice of the Board meeting are placed under Letter "R -20" collectively for identification. (xiii) It has been submitted that respondent No. 2 has never obtained any signature of petitioner Nos. 1 to 3 or any other person or no document pertaining to the Board meeting of the company or AGM or balance sheet have been taken into self -confidence as to his own document. All the directors are qualified persons and they cannot be approached to sign on blank papers nor such persons would ever like to sign on blank papers produced before them without verifying the same. Similarly, it has been submitted that it is false to suggest that for administrative or any other reason issue of capital has been shown in favour of any person for whom such forms were filed with the Registrar of Companies ('RoC'). (xiv) As regards the issue and allotment of shares subsequent to 31st March, 2006, Board meetings were regularly held to issue and allot share capital and was not made on the understanding that existing shareholding position as on 31st March, 2006 will not be disturbed. (xv) It has been averred that respondent No. 2 has never kept any signed cheque book of any staff with him to misuse the same for his personal purpose. He did not obtain any signature of any employee on any blank voucher nor did he fill up the same subsequently in order to siphon of the money. Respondent No. 2 has further denied to have allowed any supplier to over -invoice the respondent -company or to take any out money from any supplier or ever forced to buy medicine from the shop of respondent No. 3. Further, respondent No. 2 denied to have taken money either from petitioner No. 8 or petitioner No. 3 by any deed of gift. (xvi) Respondent No. 2 has denied to have selected any staff without looking into his/her qualification. He has also denied that he did not choose correct employee/staff or pay adequate salary or compelled deserving staff to leave the company. Respondent No. 2 has also refused to accept that he had taken back any portion of money paid to the staff by way of salary or failed to retain any employee with proper expertise. It has been denied that the cost of boarding and lodging of the staff of medicine shop has ever been paid out of the fund of the company. (xvii) The petitioner Nos. 1 and 2 were quite aware of the fact that the AGM was held on 19th September, 2011 and in the said AGM it was resolved that the queries raised by some of the shareholders would be discussed in an urgent meeting of the Board of directors on 27th September, 2011 and petitioner No. 1 has been asked to call the said meeting for final discussion. The audited accounts for the financial year ending 31st March, 2011 of the respondent -company along with auditors' report and directors report have been duly adopted. (xviii) Respondent No. 2 has refused to accept that the Board meeting was held on 22nd October, 2011 to discharge petitioner Nos. 1 and 2 and others or that the resolution adopted in the AGM on 19th September, 2011 was bad, illegal, null and void or not binding. The complaints of petitioner No. 2 on 8th October, 2011 and 11th November, 2011 with Baguihati and New Town Police Station are baseless and motivated and it is also denied that respondent No. 2 ever suppressed the actual accounts of the company from any shareholder or did not give the same despite request or demand. (xix) As on the financial year ending on 31st March, 2011, the petitioners are holding 26 per cent of the paid -up share capital, whereas the respondents have subscribed to 74 per cent and, thus, at no point of time the petitioners were majority shareholders. The list of shareholders for different years have been placed as per Letter "R -23" collectively for identification, which will prove the contentions of the respondents that they have held majority shares all through and the petitioners have never enjoyed the status of majority shareholders at any point of time. (xx) The petitioners have not revealed any facts or circumstances of the case which can warrant winding up of the company and no prima facie case has been pleaded in their favour which can indicate any loss or injury or prejudice against the interest of the petitioners. There is no reason whatsoever to crave for relief by way of restoring the shareholding position of the company as on 31st March, 2005. (xxi) Petitioner Nos. 1 and 2 have opened nursing home under the name and style of "Galaxy Health Care Centre" at Thakdari, New Town and in the sign board, they have notified of starting their chamber presently. In their letter dated 12th November, 2011, addressed to the officer in -charge,' New Town Police Station, they have admitted to have been practising at the said "Galaxy Health Care Centre" owned by them. Being the directors of the respondent -company they have intentionally and deliberately disobeyed and violated the provisions of section 314 of the Act and without the consent of the respondent -company duly approved by special resolution, are holding the office or place of profit and, thus, acting prejudicial to the interest of the respondent No. 1 -company. Still operating from the chamber of the respondent -company, they "are diverting the patients from the respondent -company to their Galaxy Health Care Centre and, thus, the petitioners are guilty of suppression of material facts and deliberate misrepresentation for wrongful gain. (xxii) Petitioner No. 1 undertook and participated in all major decisions up to early September 2011 and admittedly up to that period there was no allegation or complaint or grievance against respondent No. 2 or other respondents regarding funds, accounts, balance sheet, statement of accounts, recruitment of staff, issuance of share certificates, allotment of shares, appointment of directors, letting out the premises of medicine shop or any management behaviour or dealing. It is quite clear that only after setting of their own hospital, the petitioner Nos. 1 to 3 have been indulging in acting detriment to the interest of the respondent No. 1 -company and has provoked others to join them to fulfill their evil design. (xxiii) Respondent No. 2 has categorically denied that the petitioners were ever majority shareholders and there was no scope, occasion or reason to cause prejudice or invade any interest of the petitioners, rather, respondent No. 2 and all other respondents have done to the best of their ability to protect the interest of the petitioners. (xxiv) Respondent No. 2 has strongly objected to the prayer of any injunction craved by the petitioners as also any other framing of any scheme for administration or management of the company or appointment of any special officer or administrator to take charge custody or control of the business affairs of the respondent No. 1 -company. Further, in view of the conduct of the petitioners for setting up rival and similar type of concern and running the same in contravention of the provisions of section 314 of the Act, they are neither inclined nor interested to be associated with respondent No. 1 -company anymore and their shares may be directed to be transferred in favour of the respondents on its face value or at any terms decided by the learned Bench. Accordingly, the said petition being frivolous, mala fide, misconceived, being devoid of merit and not maintainable either in law or in fact in the present form, is liable to be dismissed with exemplatory costs.
(2.) THE main contentions raised in the rejoinder by the petitioners challenging specific points in affidavit -in -reply of the respondents are as under: (a) In respect of 'R -4' of affidavit -in -reply, with regard to Board meeting dated 19th November, 2010, it has been submitted that no notice of Board meeting has been enclosed and no agenda of such Board meeting duly signed by the directors of the Board have been annexed to justify the holding of such Board meeting. Respondent No. 2 did not maintain any record of meetings of the Board of directors of the respondent -company as per the requirement of the Act and the Rules made thereunder. Furthermore, the alleged signature of petitioner No. 2 is not the signature of petitioner No. 2 and even if it is assumed without admitting, the petitioner No. 1 has received notice on behalf of petitioner No. 2, but the signature of petitioner No. 1 on behalf of petitioner No. 2 is doubtful because petitioner No. 1 has never taken any such alleged notice by putting his signature without endorsement on behalf of petitioner No. 2. Similarly, at the time of receiving notice, signature of Dr. Susruta Bandyopadhyaya has been made purposefully to rationalise the receipt of such notice even though there is suspicion about the genuine signature of Dr. Bandyopadhyaya. Further, in respect of Board meeting dated 14th February, 2011, the purported meeting was held without any agenda and the alleged decision was taken by the Board which appears to have been manipulated. Item No. (iv) in the alleged decisions in such Board meeting incorporate "two new directors will be appointed" but no date was fixed. Subsequently, the said minute was manipulated by respondent No. 2 by putting endorsement as "to be effected from 1st April, 2011" by making his own signature. Such endorsement was not signed by any of the directors who were present in the said meeting save and except respondent No. 2 which clearly proves misconduct on the part of respondent No. 2 towards all the directors and shareholders of the respondent -company. As regards Annexure R -5 of affidavit -in -reply, it has been submitted that the signatures of petitioner Nos. 1 and 2 are suspicious and appear to have been forged. Petitioner No. 2 has stated that she has never signed such document in such a manner as it is indicated in the said notice dated 11th December, 2010. Even though Dr. Susruta Bandhyopadhyaya was present in the said meeting, but he did not put his signature on the concerned minutes. Respondent No. 2 resorted to such kind of misconduct and never maintained any minute book in order to defraud the directors as well as shareholders of the respondent -company and used to always get signatures of all the directors on papers as and when these were required for respondent No. 2 specially while the doctors were busy with their professional work. None of the directors have got access to the records of the respondent -company save and except respondent Nos. 3 and 4 who are the wife and close associate of respondent No. 2 staying at his residence. The share certificates after the change of name of the company have never been handed over to the petitioners and/or other shareholders. Annexure "R -6" of the affidavit -in -reply clearly proves that the share certificates are still under the custody of respondent No. 2 and not with the corresponding shareholders. Annexure 'R -7' to the affidavit purportedly has indicated as if the petitioners were aware regarding appointment of all staff, but the same relates to reselection and reappointment of the said staff on contract basis for 3 months to 1 year on and from April 2010 onwards. Surprisingly, respondent No. 2 did not disclose any document to show regarding appointment of staff since 1994 to March 2010 and thereafter. In 'R -7' of affidavit -in -reply, the respondent -company appears to have given appointment of 102 staffs on a single day. All these documents have been manufactured and signature of petitioner No. 1 was procured with malpractice and the same was utilised in such documents along with the signatures of other directors and petitioner No. 1 was not at all aware of such appointment of 102 staffs and as such, the said action of the respondent -company is wholly denied. (b) As per Annexure 'R -8' of the affidavit -in -reply, a Board meeting was convened on 19th September, 2011 vide notice dated 24th August, 2011 which contained 4 agendas to be discussed in the said meeting. Respondent No. 2 had not disclosed those pages which contained discussions in respect of agenda No. 1 in respect of the adoption of the audited accounts for the financial year ending 31st March, 2011 and the reports of the directors and auditors therein and also in respect of agenda No. 3 to appoint directors who have vacated office. In spite of queries raised by the shareholders regarding proper documents in respect of agenda Nos. 1 and 3, the same could not be produced either before the chairman or the shareholders, as would be evident on page No. 424 of the said affidavit. Subsequently, the chairman of the said 17th AGM agreed to put his signature only in respect of consideration of agenda Nos. 2 and 4 and as such, the said AGM of the respondent -company cannot be said to be accepted by all the shareholders in respect of all 4 agenda recorded in the notice of meeting. Respondent No. 2 had tried to hide non -acceptability of joining of his two daughters in the Board by the majority of the shareholders of the respondent -company. (c) Petitioner Nos. 1 to 3 have never received any remuneration as directors from the respondent -company, but received some consideration as doctors. Respondent No. 2 failed to show any such document to substantiate except 3 receipts against attending one alleged Board meeting very recently. It is surprising to note that for the alleged mass petition dated 29th September, 2011 made by the so -called staff against petitioner No. 2, respondent No. 2 was compelled to call a special Board meeting of the respondent -company on 20th April, 2011 to resolve such problem. It is evident from the minutes of the said board meeting that in the alleged Board meeting a group of persons were present whose identifications were shown as executive members of respondent -company and respondent No. 2 could not explain under which provision of law or authority such executive members were appointed and allowed to join in the alleged Board meeting of the respondent -company. This proves misconduct on the part of respondent No. 2 to exercise undue influence in order to procure fictitious and fabricated documents to malign the reputation of petitioner No. 2. (d) The petitioner No. 3 has been alleged to put his signature on paper relating to share transfer. Respondent No. 2 occasionally used to send staff members at the laboratory of respondent -company for getting signature of petitioner No. 3 on several papers and on number of occasions being busy with laboratory work, petitioner No. 3 had put his signature on these papers believing them to be true and correct. This might have caused recording of signatures of petitioner No. 3 on certain papers in good faith without being aware of the contents of such documents and papers. The main grievance against petitioner No. 3 is in respect of a letter dated 8th September, 2011 by which he has requested respondent No. 2 to increase his professional remuneration from Rs. 10,000 to Rs. 30,000 which was not accepted by respondent No. 2. As a result, respondent No. 2, without any authority from the Board of directors of the respondent -company, asked petitioner No. 3 to discontinue his professional service and this shows blatant misconduct on the part of respondent No. 2. (e) Petitioner Nos. 13 and 16 being shareholders of respondent -company were forced by respondent No. 2 to execute alleged agreement dated 28th June, 2001 with respondent No. 2 by which petitioner Nos. 13 and 16 were compelled to return back their respective monthly salary to respondent Nos. 3, 5 and 6 who were the wife and two daughters of respondent No. 2. Even though salary of petitioner No. 13 was shown to be Rs. 19,000 per month in the voucher, but in pursuance of such alleged agreement, the petitioner No. 13 used to return back a sum of Rs. 10,000 and the relevant details of payments made by petitioner No. 13 in favour of respondent Nos. 3, 5 and 6 have been indicated at page 40 of the rejoinder drawn by the petitioners. (f) As regards letting out a portion of the building of the respondent -company to open a retail medical shop by respondent No. 3 being wife of respondent No. 2, it has been submitted that except one rent bill the relevant agreement and rent bills from the date of letting out of the premises of the respondent -company have not been produced. Therefore, the allegations made by the petitioners as regards the ownership of the retail shop vesting with the wife of respondent No. 2 do not stand controverted. (g) Reference has been invited to Annexure 'R -21' of affidavit -in -reply indicating how the Board meetings used to be conducted and the necessary records including the minute book of the respondent -company have been prepared. The said Board meeting dated 23rd August, 2011 cannot be treated as a valid Board meeting because it does not clarify the points of discussions and the final resolutions taken in such meeting. (h) As regards the AGM held on 19th September, 2011, the deponent did not disclose the reply of doctors and why serious financial disputes were not discussed in the Board meeting and what action was actually taken by respondent No. 2 in order to solve such disputes. (i) Finally, it has been submitted that respondent Nos. 2 to 8 jointly and severally in collusion with each other are involved not only for their personal gain or interest, but also desperately siphoning off huge fund of the respondent -company by manipulating/forging all the books of account and records of respondent -company which cause serious prejudice towards the affairs of the respondent -company as well as the interest of the shareholders and public and it would be appropriate if the learned Bench pass necessary orders as prayed for.
(3.) IN addition to above, the respondents have filed supplementary affidavit dated 10th May, 2012, wherein certain allegations have been made against the behaviour and conduct of petitioner No. 2 supported by certain letters written by the staff members of the respondent -company. In fact, for discussing the grievances raised by the staff members against the misbehaviour of petitioner No. 2, a special meeting was convened on 20th April, 2011 of the Board of directors and executive members of the company and petitioner Nos. 1 and 2 were also signatories of the said meeting. However, petitioner No. 1 expressed in writing that he was agreeing to discuss the matter in the meeting of the Board of directors only and consequently, the said meeting was cancelled on the advice of petitioner No. 1. It has been reiterated that the petitioner Nos. 1 and 2 have been running a parallel nursing home under the name and style of Galaxy Health Care Centre and Hospital and out of the chamber of the respondent -company patients are being diverted to the said nursing home by spreading adverse remarks against the respondent -company. The said petitioners lodged complaints with Baguihati and New Town Police Station on 8th October, 2011 and 12th November, 2011 and acted in contravention of the provisions of section 314 of the Act. Since the situation was going beyond control, the respondents had no other option but to ask the petitioner Nos. 1 and 2 to stop attending patients in the premises of respondent -company in order to protect the paramount interest of the respondent -company. It has also been averred by respondent No. 2 that by letter dated 24th October, 2011 as managing director of the company, he has withdrawn permission, leave, liberty or licence to two, of the directors in order to protect the interest of the company. Since withdrawal of such permission does not relate to expulsion or taking any action against any director, no resolution is required for the same. The said chamber of petitioner Nos. 1 and 2 was earmarked as chamber of doctors and not of directors. No resolution was taken to provide such chamber to the said two doctors like other doctors in the company. If any of the rights to practise in the chamber of the respondent -company has been invaded by such non -allowance of access, the same, for the sake of arguments, without conceding, may constitute an infringement of civil right and there is no scope to ventilate such grievance under the Act and only the civil court may have jurisdiction to deal with such matter and not the hon'ble Bench because the company law does not provide any leave to doctor who may be licensee or grantee and the respondent -company is the licensor or the grantor. In the said affidavit it has also been stated that all the petitioners beside petitioner Nos. 1, 3, 5, 8, 12 and 13 have received their dividends from the company for the period till September 2011, i.e., till the date of AGM from 1st September, 2011 to 1st March, 2012. The relevant copy of the statement of the Axis Bank account and the relevant forms filed by the shareholders including some of the petitioners showing particulars of dividend payments have been placed for identification as per Letter 'R -37'. It has also been submitted that it is ridiculous to restore back the shareholding as on 31st March, 2005 since there is no scope of segregation of the category of the petitioners and the respondents at that point of time. In every AGM and in the meeting of the Board of directors, the shareholdings and the annual accounts have been accepted following audit of balance sheet and statement of accounts. The petitioners did not make any such grievance earlier and the same is hopelessly time barred. As against the allegation made by the petitioners for non -filing of the annual return for the financial year ending 31st March, 2011, it has been submitted that the said annual return has already been filed for the year 2010 -11. The copies of the receipt of return from KoC in Form 23AC and Form 23ACA for the financial year 2010 -11 have been placed and marked as 'R -38' for identification. As against the above supplementary affidavit affirmed by the respondents, the replies furnished by the petitioners, in brief, are as under: (i) The petitioner Nos. 1 and 2 are professional doctors and they have right to purchase any property either in their joint name or in the name of anyone of them. Further, the distance of the said property of petitioner Nos. 1 and 2 is at least 15 kilometres from the address of the respondent -company and presently it is a vacant land with a small dilapidated structure. Though the plan has been sanctioned for construction, but as on date the entire land purchased by petitioner Nos. 1 and 2 is vacant and the said facts are apparent from the certificate issued by Mahishbathan No. 2 Gram Panchayat dated 12th September, 2012 (copy enclosed). (ii) The petitioners have insisted for production of documents like, audited balance sheet for the years 2007 -08 to 2011 -12, money receipt dated 31st March, 2009, deed of partnership dated 20th September, 1996 between respondent No. 3 and petitioner No. 8, amendment of such partnership dated 1st April, 1998 and deed of lease dated 12th September, 1995 made between respondent No. 1, respondent No. 3 and petitioner No. 8, which are under the custody of respondent No. 2, but respondent No. 2 has not disclosed these documents only for suppression of the relevant facts. (iii) The petitioners have also submitted that petitioner Nos. 1 to 3 have attended the Board meeting held, on 5th September,'2012 and raised their objections in writing which have been kept on record in the said meeting. The petitioners have requested for production of original records which have been kept in the custody of either respondent No. 1 or respondent No. 2. In addition, original annual return for the year ending 31st March, 2005 has also been asked to be produced.;