Vimla Yadav - (1.) IN this order I am considering Company Petition No. 84 of 2012 filed under sections 284 and 628 and other applicable provisions of the Companies Act, 1956 with violation of section 195 of Code of Criminal Procedure, 1973 ('Cr.P.C.') and other applicable Act with Contempt of Court ('the Act') between Shri Sureshchandra V. Parekh (the petitioner/applicant) and Gruh Finance Ltd. ('the respondents') praying that: (a) Hon'ble Company Law Board ('CLB'), Please direct the respondents Gruh Finance may please be direct to change the date of annual general meeting ('AGM') already fixed on 18th June, 2012 and direct them to fix other appropriate date for Gruh Finance AGM so that our Companies Act, Notice Date 29th December, 2011 be published and circulated the shareholder as per law. Gruh had not obey Hon'ble Gujarat High Court order OJ Appeal No. 107/2009 date 1st February, 2010 S.V. Parekh + 11/2 HDFC so same rules, apply to Gruh Finance is a subsidiary company of HDFC only. (b) Hon'ble CLB, please direct to Gruh Finance to publish our Companies Act's 284 Notice Date 29th December, 2011 in Gruh Finance agenda solution with full and complete correct details of notice written in balance sheet in year end 31st March, 2012 and send to all Indian/Foreign shareholders/all Government agencies/other as per law and on AGM date put for votes above resolution as per law in the interest of natural and social justice only. (c) Be please to direct petitioners me/us for filing Cr.P.C. under section 195 and Companies Act, under sections 628, 284 and Contempt of Court against Gruh Finance. All Board of directors, chairman, secretary + HDFC + HDFC Bank both co.'s chairman, MD secretary + other liable persons in Ahmedabad appropriate court for misguiding Hon'ble all Indian/Foreign shareholder's/Government agencies/CLB with HDFC/HDFC Bank advice only not published resolution in AGM having not disclosed correct details and/or hide many more details in balance sheet in the interest of Natural and Social Justice. (d) Please direct Gruh Finance to not pass ESOS and/or if any pass before also not allot single ESOS as per clause No. 12 of SEBI (Employee Stock Option Scheme and Employee Stock Purchase Scheme), 1999 up to not clear petitioners complete grievances which was pending since 18 years in the interest of natural and social justice only. (e) Hon'ble CLB, please pass this petition in petitioners favour in the interest of justice and pass any order in Gruh Finance favour on following ground (a) Gruh Finance had hide many details and/or not disclose correct details to shareholders so Gruh Finance violated section 195, Cr.P.C. and sections 628 and 284 of Companies Act. As per law with Contempt of Court Proceeding against Gruh Board of Directors with chairman, MD, secretary + other liable persons, (b) Keki Mistry involved in HDFC/HDFC Bank 8,500 crore but hid the correct facts, (c) Keki Mistry director done personal Rs. 90 crore fraud in HDFC/HDFC Bank but hid facts, (d) Keki Mistry involved in HDFC wrong, illegal criminal case filed against 64 years old lady/husband (us) and 69 lakh legal right not given last 18 years, (e) not pass any interim or other relief as per - Central Minister Dalmiya v. Sharad Power, Hon'ble Calcutta High Court issue summons for one item written wrong or hide so many details, etc. (f) Any other relief, which may deem fit in the interest of natural and social justice. (g) Pass all expenses with legal advice, etc. (h) Any other. Heard CP No. 84 of 2012 in which the respondents argued the matter without even filing reply to the CP.
(2.) THE petitioners' case is that despite notice to the respondent -company to include resolution for removal of Mr. Keki M. Mistry, the respondent -company had issued notice for convening the AGM on 18th June, 2012 without including the resolution and without seeking any exemption from the CLB from circulation of the notice for removal of Mr. Keki M. Mistry who according to the petitioner is responsible for financial loss of approximately 69 lakhs to the petitioners on account of HDFC not allotting 700 preferential shares and their entitlement to get additional shares of 1,600 and not giving dividend due to the petitioners. The petitioners also alleged and drew my attention to various documents annexed to the petition to emphasise that Mr. Keki M. Mistry has indulged in huge frauds and is not eligible to be a director in this subsidiary company of HDFC. The petitioners' case is that section 284 of the Act is not to be read with section 188(2) of the Act. To support their contentions, the petitioners relied upon the decision of the Hon'ble Gujarat High Court given vide order dated 1st February, 2010 in OJ Appeal No. 107 of 2009 in Sureshchandra V. Parekh v. HDFC Ltd., wherein last para reads as under: ...[T]he aforesaid discussion takes us to the impugned final directions issued by the CLB. The CLB, by the impugned direction, has restrained the appellants from giving notice(s) under section 284 of the Act for removal of Mr. D.S. Parekh as director of HDFC on the same issue as mentioned in their notice dated 10th April, 2009 for the AGM which was to be held in 2009. It is apparent and obvious that the statements in the notices or the reasons stated in the notices for circulating the resolutions are the ground or justifications for the impugned direction by CLB and not the demand (by the appellants in the notice/resolution) per se. It is also clear, on bare perusal of the impugned direction, that the limited effect of the impugned direction would be that the appellants cannot now keep On giving notice on the same issue which was mentioned in their notice dated 10th April, 2009, however, the impugned direction would not come in the way of the appellants and it does not prohibit them from giving notice, including a notice seeking removal of any director or the chairman, on any other issue. Obviously, if the resolution, (which may be proposed in the notice by the appellants) do not find favour in the meeting and cannot garner sufficient votes to sail through them it would fail and sink. The CLB has not restrained the appellants from giving any notice under section 284 of the Act in future even for removal of a director or any ground other than the ground or issue mentioned in their notice dated 10th April, 2009. In the facts of the case, we are not inclined to hold that the said direction is unjust or suffers from the vice of non -application of mind, more particularly when a finding of fact has been recorded, after due consideration of the material on record, that the consecutive notices, containing similar grounds and revealing similar purpose (i.e., the statements made in, or the reasons given in the notices) for circulating the resolutions, amount to abuse of the right (conferred on shareholders by section 284 of the Act). We are, therefore, not inclined to interfere, under section 10F of the Act, with the impugned direction. For the reasons staled above, the appeal, fails and deserves to be rejected. Consequently, the Appeal is hereby rejected. ...It is, however, clarified that this judgment and order will not come in the way of present appellants in pursuing, if permissible, any appropriate remedy, in accordance with law, before appropriate forum with regard to their claims or grievances, including the claim for allotment of appropriate number of shares of HDFC Bank Ltd. on the basis of the allotment originally notified by the opponent HDFC in 1994. This judgment and order would also not obstruct or hold the appellants from pursuing, in accordance with law, their claim for appropriate action under section 195 of the Cr.P.C. It would be open to the appellants to take out appropriate proceedings in appropriate forum for their grievances or any other claims, in accordance with law.... Further, the petitioners placed reliance on the case of Baraiya Raijiji Somaji v. Gujarat Water Resources Development Corpn. Ltd. (Special Civil Application No. 13686 of 1994, dated 3rd March, 2006) wherein Head Note (B) reads as under: [B] Constitution of India - Article 226 - When a litigant claims a relief by suppressing material facts, no relief should be granted to such a litigant to contend that the prayers of the respondents be not allowed as they have suppressed the material facts from the court and by not filing reply have admitted the allegations in the petition and, hence, deserve no relief and the petitioners' prayers be allowed.
(3.) THE counsel for the respondents pointed out that they have accepted a very short notice on this petition while being present in the court yesterday in another matter and, hence, they are not filing the reply and arguing the matter without reply should not be treated as non -denial of the allegations in the petition. It was argued that the petition is not maintainable. It was pointed out that the provisions of sections 284, 628 of the Companies Act and section 195 of the Cr.P.C. do not get attracted in the present case. Reading the provisions of section 188(5) it was argued that the company is not bound to circulate any resolution proposed by the petitioners who were not eligible to do so on account of their ineligibility under section 188(2)(a) or (b).;