M.K. Shrawat, Member - (1.) The Petition under consideration was submitted on 28th March, 2014 before the then C.L.B. Mumbai Bench under the provisions of Section 397, 398, 402 and 406.
(2.) Petitioner's CLAIM:-Facts of the case, in short, are that the Respondent No. 1 Company was incorporated on 26th August, 2010 having authorized, subscribed and paid up Share Capital of Rs. 10,20,000/-. The Share Holding was 1/3rd (33 %) of 34,000 Equity Shares of Rs. 10/- each held by the Petitioner and Respondent No. 2 & 3 equally. The object as per the Memorandum of Association were to carry on the business of Shipping Company, Shipping Agent, Commission Agent, Underwriter, Booking Agent, Marine Education etc. On the date when the Petition was filed it was claimed that the Petitioner was holding 33% Share of the subscribed capital. It has also been claimed that the Petitioner had been the Managing Director since 13th August, 2013. In the Petition it is informed that the Respondent Nos. 2 and 3 were also holding 33% Shares each. The claim of the Petitioner is that vide a Resolution of 13th August 2013 the Petitioner was appointed as a Managing Director and he was also authorized to sign papers on behalf of the Company. He has also been authorized to correspondence with statutory bodies and also authorized for Bank Transaction under his signatures mandatorily. This Resolution is stated to be not only signed by the Petitioner but also by Respondent Nos. 2 and 3 i.e. by all three Directors. The claim of the Petitioner is that due to his continued efforts the Company had procured International Contract from Doha, Qatar and NKOM. Further the claim of the Petitioner is that he is a skilled Consultant and in consultancy work in India and Abroad. 2.1 According to the Petitioner suddenly on 3rd February, 2014 a Meeting was convened wherein Respondent Nos. 2 and 3 have given their ascent for creation of Companies own server and official email id. As a Managing Director the Petitioner had recorded his descent on the said Resolution. The second Resolution passed on that day was that due to inefficiency of the Petitioner remuneration was stopped with effect from 1st February, 2014. The allegation of the Petitioner is that no proper Notice was served upon the Petitioner before conducting the said Meeting. One more Resolution was passed on that day to appoint Mr. Sunil Jain as Chief Executive Officer of the Company. As per the said Resolution Mr. Sunil Jain happened to be a Graduate in Marine Engineering. At this juncture it is worth to mention that our attention was drawn by the Learned Counsel that the said Resolution did not contain the signature of the Petitioner. According to the Petitioner he came to know about the said Resolution on 5th February 2014. The allegation of the Petitioner is that no such Meeting was ever conducted. No mandatory Notice as prescribed under Section 286 of the Companies Act, 1956 was ever served upon the Petitioner. 2.2 That pursuant to the said Resolution the Respondent Nos. 2 and 3 have wrongfully withdrawn funds from the Company alleged to be to the tune of Rs. 5,00,000/-, without the knowledge of the Petitioner. Although it was mandatory as per the earlier Resolution that for every Bank Transaction the signatures of the Petitioner were necessary. On noticing irregularities, the Petitioner wrote a letter dated 15th February 2014 addressed to the BOD pointing out the illegality of the Notice and other discrepancies. Simultaneously the Petitioner has written a letter dated 15th February 2014 to the Branch Manager, Canara Bank objecting for the Bank Transaction without his signatures. 2.3 Immediately thereafter on 18th February 2014 a Notice of Board Meeting was allegedly issued to discuss certain Agenda along with an Agenda to change the designation of Mr. Sunil Goswamy (Petitioner/Director) and also to remove him from the position of Directorship. 2.4 The Compilation annexed with the Main Petition contained several letters/correspondence between the parties. The Petitioner has vide a letter dated 15.02.2014 has intimated the Board of Directors about his disassociation from the illegal activities of rest of the Two Directors. The Petitioner has challenged the legality of the Resolution passed and also challenged the wrongful siphoning of the funds. It was stated in the Petition the unpaid remuneration from December 2013 upto the date of the Petition was amounted to Rs. 22,10,000/- i.e. up till September, 2016 at the rate of Rs. 65,000/- per month. 2.5 As per the Petitioner, due to the misdeed of Respondent Nos. 2 and 3, the Canara Bank had issued a Notice under Section 13(2) of the SARFAESI Act and also filed Petition bearing O.A. No. 284/2016. At that point of time when the Petition was submitted there was no pending matter before the Debt Recovery Tribunal. It has also been claimed by the Petitioner that Articles of Association clearly provide that no Director is to be removed but Retire on rotation. After his removal Respondent Nos. 2 and 3 were attempting to gain full control of the Respondent Company. A prayer has been made in the Petition that Pending the Final Disposal Respondent Nos. 2 and 3 be directed to provide full and complete information of the day to day conduct of the business to the Petitioner. One of the main relief claimed in the Petition by the Petitioner is that the Respondents be directed to disburse the outstanding remuneration from December 2013 calculated at Rs. 65,000/- per month. The steps taken thereafter from the 14th February 2014 Meeting be declared as null and void. Rest of the prayers have not emphatically argued.
(3.) Reply OF THE RESPONDENTS:-From the side of the Respondent a Reply has been furnished wherein it was vehemently contested that the allegations raised were incorrect and not based upon any evidence. It has not been disputed in the Reply that each Directors were having 1/3rd Share Holdings. It is stated that Respondent Nos. 2 and 3 are specialized in Marine Engineering Services. It is informed in the Reply that the Petitioner was carrying the business in the name of M/s. Powermach Services to provide management facility services having its office at Kharghar, Navi Mumbai since 2006. The Petitioner had made a request in the year 2010 to start a Private Limited Company in the area of Marine Engineering Services and assured Respondent Nos. 2 and 3 that he would devote full time in the business. Being convinced R-2 and R-3 along with Petitioner have incorporated the Company R-1 on 26th August 2010, all three having equal Share Holdings. In the Financial Year 2010-11 and 2011-12 the turn over of R-1 was only Rs. 9,77,000/- and Rs. 52,00,000/- respectively. The allegation is that the Petitioner did not pay attention for the business of the Company. He was paying attention to his own concern M/s. Powermach Services where the turn over was Rs. 2.5 Crores to Rs. 3.00 Crores per annum in those Financial Years. It has also been alleged by the Respondents in the Reply that on suggestion of the Petitioner the address of the R-1 Company was also changed to the same address from where the Petitioner was running his own Company. It is claimed that the Respondents were looking after the projects being Technical Experts, however, the Petitioner was handling the Commercial, Banking and Administrative Matters. He was using the credentials of R-1 Company to promote his own Company. He has deliberately not completed the formalities of "Vendor Registration" with ONGC, Indian Navy, Mazgaon Dockyard etc. so that the R-1 Company could not grow. The Petitioner had also mis utilized the Website and email id of the Company. 3.1 In and around mid 2012 the Respondent Company obtained Overseas Work Order from NKOM for manpower supply and Marine Engineering Services. The Petitioner was serving in Indian Navy only as an Engineer Room Artificer in the year 1989 and having association with Commander (Retired) Sunil Jain. He has obtained some work from the Dockyard but in the name of his own Company. However, he incurred Travel Expenses on the account of the Respondent Company. He has used the funds of the Respondent Company for his personal gains and for his own Company. According to the Respondent; Mr., Jain had also accompanied him to Doha in March 2013 and May 2013. It is further informed that due to lack of transparency Mr. Jain left the association of the Petitioner in July 2013. He was not compensated by way of Salary by the Petitioner. The Petitioner was cautioned by the Respondents for not taking interest in the business of the Company but promoting his own Company that too at the cost of the Respondent Company. The Petitioner has deliberately misinformed the process of Registration Certificate applicable for Recruiting Agent to be utilized for Overseas License. There was a hot discussion amongst the Directors that the business of the Respondent Company was hijacked which resulted into a Board Resolution of 3rd February 2014 stopping the remuneration of the Petitioner. The Petitioner was informed as he has also attended the Meeting. The Respondent Company had made attempts to serve upon him the Agenda of the Meeting but he had refused to accept. Although he attended but not signed the Attendance Record. Before the said Meeting the Petitioner had communicated his intention of Resignation from the Directorship. As a counter blast the Petitioner wrote email to NKOM to disrupt the Company Operation. It was falsely communicated that the Respondent Company did not have any Valid License to supply manpower. In the Reply certain other allegations of misconduct of the Petitioner have been narrated. He had written threatening letters to the Staff. His activities were against the interest of the Company. The Respondent has tried to clarify the position of Rs. 5,00,000/- withdrawal stated to be used to make payment to the Travel Agent, however, proper bill and invoice were duly recorded. Finally it is prayed that the Company was in the nature of quasi partnership, hence the Directors were required to act honestly and for the interest of the Company. The Petitioner had breached the trust hence he was removed, therefore the Petition deserves to be dismissed.;