- (1.) This application has been filed by the plaintiffs for a direction upon the defendant to induct Mr. Santosh Dash, the Chief Executive Officer of the petitioner no.1 as a nominee director of the defendant in the Board of the defendant no.1. The basis of the application appears to be the resignation of the plaintiff no.2 during the pendency of this proceeding. Mr. S.N. Mookerjee, learned senior counsel appearing on behalf of the petitioners submits that in order to circumvent the order passed by this Court on 27th July, 2015 in so far as it protects the interest of the plaintiffs in the defendant no.1, the said defendant no.1 has taken advantage of the resignation of the plaintiff no.2 and is now seeking to have its person appointed in the Board so as to affect the interest of the plaintiffs in the administration and management of the defendant no.1.
(2.) Mr. Tanuj Khurana, learned counsel appearing on behalf of the defendant no.1 submits that Mr. Panigrahi was never a nominee director of the plaintiffs and, accordingly, the question of protecting any interest of the plaintiffs in the Board of the defendant no.1 by appointing Mr. Dash as a nominee director at this stage could not and did not arise. The learned counsel has referred to various Articles of the company and submitted that Mr. Panigrahi had to retire by rotation in the next AGM which has already been held and, accordingly, the defendant no.1 has an undoubted power to appoint any director following the procedure under the Articles. It is submitted that since Mr. Panigrahi was not the nominee director, the question of the plaintiffs at this stage exercising any right or claiming any right to have a nominee director in the Board does not arise.
(3.) The issue as to whether Mr. Panigrahi was an Additional Director or a nominee Director was considered by me in the order on 27th July, 2015. The said application is still pending. Impasse occurred due to the resignation of Mr. Panigrahi. While the defendant no.1 would contend that Mr. Panigrahi would have automatically retired by rotation irrespective of the fact whether he has resigned earlier or not, Mr. Mookerjee, learned senior counsel has relied upon the observation made by me at the interim stage of the application that the plaintiffs as one of the strategic partners have a right to have a say in the administration of the defendant no.1. There is no doubt that the company in terms of Article 141 can nominate a Director on the Board upon such terms and conditions as the company may deem fit and proper. The question however that would arise for consideration is, the plaintiff no.1 being the strategic partner whether would have a right to nominate its officer in the Board. The composition of the defendant no.1 cannot be disregarded. Without prejudice to the rights and contentions of the defendant no.1, Mr. Dash, the Chief Executive Officer of the petitioner no.1 shall for the time being be inducted on the Board and shall continue to remain as a nominee director of the plaintiff no.1 until further orders.;