Rajeswara Rao Vittanala, Member - (1.) The Present Company Petition bearing C.P. No.43/241/HDB/2017 is filed by Dr.Venigalla Naveen, U/s 241-244 of Companies Act, 2013 R/w Rules 11 & 34 and other applicable rules of NCLT Rules 2016, by seeking following reliefs: i. to declare all the purported resolutions shown to have passed at the EGM dated 2.11.2016 appointing the 3rd Respondent as Director of the 1st Respondent Company as NULL AND VOID AB INITIO as no such EGM notice was issued but fabricated resolutions uploaded into ROC/MCA web portal through From No.DIR-12; ii. to declare the all Circular Resolutions circulated vide notice dated 1.12.2016 and purported to have been approved on 8.12.2016 but the fabricated notices clearly show that only on 9.12.2016 the said 4th Respondent, Mrs. Sri Hari Priya Tupili gave her CONSENT to act as Director and uploaded into MCA/ROC web portal by way of Form No.DIR-12 showing date of 9.12.2016 as NULL AND VOID AB INITIO; iii. to declare all the e-Forms filed with ROC/MCA web portal showing the appointments of Respondent Nos.3 and 4 as Directors of the 1st Respondent Company as NULL AND VOID AB INITIO; iv. to declare the e-Form MGT-14 dated 22.12.2016 showing change of designation of Petitioner from MANAGING DIRECTOR to DIRECTOR and effectively removing him as MANAGING DIRECTOR as NULL ? AND VOID AB INITIO; v. to direct the Registrar of Companies (ROC) at Hyderabad to remove the above said e-Forms VJ from the public domain MCA Web portal of the 1st Respondent Company; vi. to declare all notices issued by the 3rd and 4thRespondent impersonating themselves as a Directors of the 1st Respondent Company as NULL AND VOID AB INITIO; vii. to declare the acts of the Respondents as fabrication of documents and false certifications uploaded into ROC/MCA web portal; etc.
(2.) Brief facts of the case, as mentioned in the Company petition , which are relevant to the issue in question, are as follows: 1) Dr.Rama Krishna Prasad Power Private Limited (hereinafter referred to as "Company') was incorporated in the name of "Dr.Venigalla Ramakrishna Prasad Power Private Limited" under the Companies Act, 1956 on 27thMay, 2009 as a Private Limited Company, and subsequently Company's name was changed to "Dr. Rama Krishna Prasad Power Private Limited" on 16.02.2011 which was duly registered with the Registrar of Companies, Hyderabad. 2) The Company was established with main object to carry on the business of manufacturing, producing, processing, generating, accumulating, distributing, transferring, preserving, mixing, supplying, contracting, as consultants, stockists . wholesalers, retailers, jobbers, traders, agents, brokers, representatives, collaborators, of merchandising, marketing, managing, leasing, renting, utilizing of electricity, steam, power, solar energy, wind energy, biomass energy, thermal energy, hydel energy, tidal energy and wave energy, and other conventional and non conventional and renewable energy sources, waste treatment plants of all kinds, and equipments thereof in India and outside of India and to carry on business of electrical engineers, and contractors, manufacturers, suppliers, of and dealers in electrical and other appliances, cables, dry cells, accumulators, and to generate, accumulate, distribute and supply electricity for which electrical energy can be employed and to manufacture and deal in all apparatus and things required for or capable of being used in connection with the generation, distribution, supply, accumulation, etc. 3) Authorized Share Capital of the Company is Rs. 5,00,000 divided into 50,000 equity shares of Rs. 10-/ each, which was subsequently enhanced from Rs.5,00,000/- to Rs.10,00,00,000/- divided into 1,00,00,000 Equity Shares of Rs.10/- each. The petitioner is holding 13% of paid up equity share of the Company i.e. 13, 00,000 equity shares of Rs. 10/each out of the paid up capital of equity shares of 10,000,000each of face value of Rs. 10 each aggregating to Rs. 100,000,000/ 4) The Petitioner is the elder son of the 2nd Respondent and he is a qualified Medical Doctor having qualified in MBBS in 1999 from Manipal Academy of Higher Education, Manipal, Karnataka and did his residency training in New York during 2002-2005. He did Research Fellowship in Department of Nuclear Medicine in Cleveland Clinic (Cleveland Ohio State) , USA during 2008- 2009 and got accepted into Department of Radiology and Nuclear Medicine (University of Southern California) , Los Angles, California, USA. At the request of the 2nd Respondent, who is the mother of the Petitioner, by sacrificing his brilliant professional career, returned to India in 2009 i.e. the same year in which the Company was incorporated. On 26.11.2009, the Petitioner was appointed as a Director of the Company and he was elevated to the position of Managing Director on 29.03.2010. 5) Subsequent to the joining of the Petitioner, the Company increased its Authorised Capital from Rs.5,00,000 to Rs.10,00,00,000/- (Rupees ten crore) divided into 1,00,00,000 no. of equity shares of Rs.10/-each at the EGM held on 16.2.2011. The Petitioner has invested an aggregate amount of Rs.1,33,53,938/- out of which 1,30,00,000/- has been converted towards equity shares of 13,00,000 of Rs. 10/- search representing 13% of the paid up capital of the 1st Respondent Company and balance Rs. 3,53,938/-is parked as unsecured loan with the Respondent No. 1 Company as on 31.03.2014 as shown in Form PAS - 3. 6) After he took over as Managing Director of the Company, the Petitioner has put in huge efforts singlehandedly in obtaining various approvals and permissions from Government Authorities / Departments and procured land admeasuring Ac.57.675 in Village Sriramchandrapur under / ChhatrapurTahasil in the District of Ganjam in the State of Odisha through the Orissa Industrial Infrastructure Development Corporation (IDCO) , Bhubaneswar. Any normal people would be highly thankful for huge sacrifices and efforts of the Petitioner but in his case it proved otherwise, and the conspiracy was hatched to throw him out of the project. Accordingly, he was first removed as Managing Director, and now attempting to remove him even as Director of the Company. This would expose the nexus and conspiracy of the self-interested "background players" misusing the short tempered nature of the 2nd Respondent and also her advanced age by unduly influencing her by dividing the brothers and mother against all canons of values, ethics, principles and even against the provisions of the law and indulged in wholesale fabrication of fake documents uploaded into ROC/MCA webportal as more clearly demonstrated herein. 7) The 2nd Respondent, being the head of the family and exercising exclusive cheque signing powers and the Petitioner is engaged in obtaining necessary permissions, approvals etc. from various Governmental Authorities such as Environmental Clearance, Power Regulator in Odisha, concerned Authorities and Ministries and also prepared Project Report and Viability Report, made applications to the Bankers for raising necessary funds for Financial Closure of the Project. 8) During the course of time, the Petitioner observed certain irregularities in Bank account operation and when he brought it to the notice of the 2nd Respondent, the 2nd Respondent got offended and for her own reasons, she started avoiding the Petitioner and not cooperating with him. It appears that the 2Pd Respondent is under undue influence of some self-centred persons and misleading her with false information and trying to wedged huge gap in the natural relationship between the mother and sons with deep rooted conspiracy of somehow getting rid of the Petitioner from the affairs of Company. 9) To succeed in their designs, the Respondent No.1 to 3 indulged in creation of fake EGM resolution as if the 3rd Respondent was shown to have been appointed as a Director of the Company at a purported EGM on 02.11.2016 which was not at all held. But a fake and fabricated Form No.DIR- 12 was uploaded on 30.11.2016into the ROC/MCA Webportal in connivance with some professionals, who are more than willing to be a part of the conspiracy, fraud, and fabrication of statutory documents. Thus, the 3rd Respondent though shown as if a Director is not a Director at all, and his presence either personally or through video conferring has no locus standi to be considered as a Director of the Company. Any resolutions with his presence shown for the purpose of Quorum is nonest and void abintio. 10) It is stated that through a letter dated 1st December, 2016, the 2nd Respondent proposed to pass two circular resolutions; one for appointing Mrs. Sri Hari PriyaT upili as an Additional Director, and another for to effect change in Registered Office. 11) It is alleged that within 9 days after filing fabricated eForm DIR-12 dated 30.11.2016, showing the 3rd Respondent as Director as stated above, a grand drama was played to appoint the 4th Respondent as Additional Director of the Company. The 4th Respondent is a rank outsider nor even a shareholder of the Company but having politically connected with powerful corporate fraudsters is .shown as if she is appointed as an Additional Director, that too by way of a purported Circular resolution passed on "8th December, 2016" under the category "Professional". The surprising thing was that the 'consent to act as Director of the Company in Form DIR-2 dated 9th December 2016 i.e. one day after the purported appointment shown in the Letter of Appointment dated 9th December, 2016. Another shocking thing is that in the said Form DIR-2, the 4th Respondent declared herself in sl.no. 9 under the heading 'Occupation as housewife. Thus, it is a false and fabricated document from any reckoning that when the Circular Resolution claimed to have been passed was on "8th December 2016" while the 'consent to act as Director was dated "9TH December, 2016" and on the same day i.e. 9thDecember 2016, the Letter of Appointment was given by the 2nd Respondent and uploaded into ROC/MCA web % portal on same day at 14.46 hrs. She is neither ill an Electrical Engineer, nor any professionally / qualified person 12) The 1st and 2nd Respondent also indulged in showing another circular resolution u/s 175 of the Companies Act, 2013 from the existing registered office at 103, Royal Court Apartments, Road No.11, Banjara Hills, Hyderabad - 500034 to SLN Lumbini Springs, Villa # 6, Beside Botanical Gardens, Kondapur, Hyderabad - 500034 so that the complete control of the Company goes out of the control of the existing Directors i.e. the Petitioner and the 2nd Respondent only. There is no validly existing third Director but they have created fake documents to show that the 3rd and 4th Respondents were Directors as stated above. 13) It is stated that the Petitioner, at the Board meeting held on 22.12.2016, has objected for the appointments of the 3rd and 4th Respondents as Director and Additional Director respectively but it did not reflect his dissent in the minutes of the - A said Board Meeting dated 22.12.2016. Vide his email dated 22.12.2016, the Petitioner has seriously objected and denied to have passed any resolution on 2.11.2016 appointing 3rd Respondent as Director and also rejecting the so called circular resolution dated 9/12.2016 appointing the 4th Respondent as Additional Director of the 1 ^Respondent Company. To this there was no denial from the 2nd Respondent and the so called minutes of the meeting held on 02.11.2016 have not yet seen the light of the day. Clearly, there is a fabrication in this regard. 14) In the above fabricated Board Meeting minutes u dated 22.12.2016, it was also fabricated to show in item No.6 that the Board removed the Petitioner from Managing Director under the garb of 'change of designation' from Managing Director to Director. To this, the Petitioner objected and dissented but his dissent did not find any place in the so called minutes. But, contrary to this, the 2nd Respondent uploaded into ROC/MCA webportal a Form No.MGT-14 showing as if the designation of the Petitioner was changed from Managing Director to Director. This is the first step towards his removal even as Director which subsequently came. 15) It is stated that an email notice dated 29.1.2017 was received from the email of 'cs@rkppower.com' without any name of the 'Director' attaching therewith a scanned copy of notice dated 26.1.2017 has been signed by 4th Respondent, whose Directorship is under dispute attaching therewith a purported notice dated 23.1.2017 u/s 169 of the Companies Act, 2013 from the 2nd Respondent proposing to 'remove' the Petitioner as Director of the Company. Another notice dated 26.1.2017 proposing to hold a Board meeting on 4.2.2017 is signed by both the 2nd and 4th Respondents inter alia stating to consider removal of the Petitioner as Director of the Company. However, on this day of 4.2.2017, no meeting was held and no decisions were taken there at as both the 2nd St 4th Respondents have abandoned the meeting place with a sense of shame as they realized their follies of wholesale creation of fake and fabricated documents as l.si j stated above. The Petitioner signed only the P yj Attendance Sheet sharp at 7.00 p.m. as per # scheduled time and also noted clearly that none of the Directors were present till 7.30 p.m. In spite of this undeniable fact, if the Respondents indulge in further creation of fake and fraudulent documents, then that would be one more act of serious fraud and also liable for prosecution u/s 447 and 448 of the Companies Act, 2013 and the Petitioner reserves his right to launch appropriate criminal proceedings against the Respondents for the already done by them as demonstrated hereinabove. 16) The Petitioner vide his notice dated 28.1.2017 raised serious objections to the above notices addressed to both the 2nd and 4th Respondents clearly stating that the 4thRespondent is impersonating herself as , a "Director" of the Company as she was not appointed as such in the Company at all and she would be liable for consequences of fabricating statutory records contrary to facts and law u/s 447 and 448 of the Companies Act, 2013. The Petitioner also sent an email notice dated 15.2.2017 to the 3rd Respondent that he was not a Director appointed on 2.11.2016 and he should be restrained from acting as Director in any manner and not to be a party to fraudulent records being created. To this, the 3rd Respondent gave vague and evasive reply contrary to facts and law. 17) As already stated above, various e-Forms have been digitally signed and uploaded into ROC/MCA webportal by the Respondent No.5 who is & supposed act in a professional manner and conduct himself in a diligent manner as per the Code of Professional Conduct enshrined in the Chartered Accountant Act, 1949 and Rules made there under. He is squarely liable for professional misconduct and the Petitioner reserves his right to launch appropriate proceedings before the Director (Discipline) and Directorate of Discipline of the Institute of Chartered Accountants of India, New Delhi. He is also liable for criminal fabrication of documents u/s 447 and 448 of the Companies Act, 2013 Therefore, he is a necessary party to the present proceedings as he acted in concert and connivance with the other Respondents herein. 18) Thus, as clearly demonstrated above, there are only two validly existing Directors i.e. the Petitioner and the 2nd Respondent and there is no third Director, who can claim to be a Director of the 1st Respondent Company. The appointments of 3rd and 4th Respondents as Director/Addl Directors are false and the documents filed into the ROC/MCA web portal are fabricated ones and liable to be punished u/s 447 and 448 of the Companies Act, 2013. The grand is now clearly came to light that initially the 3rd Respondent was shown as if he was a Director though he is an NRI settled in USA but shown as if he was appointed in a non-existing EGM shown with date 2.11.2016. It is universal truth that fraud vitiates everything and any subsequent acts based on fraudulent m ii resolutions and fake documents would not create any legal rights in favour of such wrong doers and the oppressed person like the Petitioner is entitled to seek remedy before this Hon'ble Tribunal. The above acts are gross acts of oppression and mismanagement within the ambit and scope of Section 241-244 of the Companies Act, 2013. 19) The large number of fabricated documents uploaded into the ROC/MCA web portal, illegally showing two outsiders shown as Director/Additional Directors of the Company and the failure of the 2nd Respondent in getting the Annual Accounts finalized and convene and conduct the AGM for the Financial Year 2015-16 so far justifies the winding up of the Company under the provisions of the Companies Act, 2013 on just and equitable grounds but to do so would unfairly prejudice the Petitioner's interests and therefore the Petitioner is filing the present Petition by seeking to put an end to the ongoing acts of Oppression and Mismanagement by passing appropriate orders on the Reliefs sought herein. If the Respondents are allowed to act upon the fabricated documents showing that 3rd and 4th Respondents as Directors of the Company , the petitioner apart from the Company in general would suffer immense loss and irreparable injury.
(3.) The Company petition is opposed by the respondent Nos. 1 & 2 by filing counter dated 12th July, 2017. The following are their main contentions; a) It is stated that petitioner and third respondent are sons of second respondent. The Company was started by the 2nd respondent to help her eldest son, the petitioner herein. The petitioner used to be a Director and shareholding by holding 13 % in the Company. He was removed as a Director, vide a Board Resolution dated 22/12/2016, a fact, which is admitted by the petitioner in his petition. Furthermore, the petitioner has neglected to pay the share allotment money. The petitioner being elder son has filed case against his mother and his younger brother; b) It is stated that the Company was incorporated on 27/05/2009.The petitioner and the 2nd respondent were the Directors of the Company till the petitioner was removed as such. The 2nd respondent holds 34.55 % of shares and the 3rd respondent holds another 13 % of the shares. 39.45 % of shares are held by a Company known as Ramakrishna Prasad Housing Private Limited. The 2nd respondent holds 99 % of the shares in Ramakrishna Prasad Housing Private Limited. The 3rd respondent is also a promoter Director holding 13 % of the shares in the Company. The 4th respondent has been inducted into the Board as an Additional Director on 02.11.2016. The 5th respondent is the Chartered Accountant and he has been arrayed in the respondents for the reasons best known to the petitioner. The 3rd petitioner has been appointed as a Director vide Board Resolution dated 02.11.2016. c) It is stated that the petitioner, who has completed his MBBS, returned to India, after an unsuccessful stint in the USA, having failed to / complete his residency in the USA. Furthermore, the petitioner also faced marital problems. To prevent her son getting into depression, the 2nd respondent, started the 1st respondent Company and the petitioner was made a Director in the Company. In meanwhile, the petitioner had remarried in the year 2012. d) It is stated that the petitioner and his wife began to demand a more assertive role in the Company. The petitioner and his wife stayed at Odissa for some time to take care of the project work. However, during their brief stay, they have siphoned off crores of rupees. Un-accounted expenses began to appear in the Company's balance books. The wife of the petitioner was directly contacting the 3rd respondent and demanding money to take care of alleged expenses, which were never accounted for. The 3rd respondent has sent about a Rupees One Crore to the accounts of the Company and the petitioner along with wife misused Company funds. The petitioner's wife also took about Rs 3, 00,00,000/- (Rupees Three Crores Only) allegedly to meet the expenses of the public hearing at Odessa for the project. However the actual expenditure incurred was less than Rs 50, 00,000/- (Rupees fifty Lakhs Only) . e) It is alleged that the petitioner has no source of j income to claim to have invested an amount of Rs 1,33,53,938/- (Rupees One Crore Thirty Three Lakhs Fifty Three Thousand nine Hundred and Thirty Eight only) In fact, the petitioner's flight tickets to India from USA had to be borne by his mother, the 2nd respondent herein. In fact, the above money was invested by the 2nd respondent to empower her eldest son. f) It is contended that 2nd respondent has raised numerous unsecured loans and sold various properties to raise an amount of over Rs. 20, 00, 00,000/- (Rupees Twenty Crores only) to invest in the 1st respondent Company. The petitioner has not invested any amount of his own. Moreover the 2nd respondent, despite her advanced age, has personally travelled to Odissa at numerous times, to personally oversee the project and to iron out any problems, while appointing numerous Consultants to assist her efforts, wherever necessary. The petitioner, on the other hand, under the influence of his 2nd wife, sold numerous properties, gifted to him by his mother, to fuel his lifestyle. He has also filed false suit by fabricating the will of his late father, against his mother, brother and sister in District Court, at Eluru. The petitioner is thus capable of destroying family relations, moral boundaries and corporate responsibilities to illegally and immorally enrich himself. g) It is stated that the petitioner's destructive attitude compelled other shareholders to induct 4th respondent herein into the Company. The petitioner has responded to these developments by levelling un-substantiated allegations against the 1st respondent Company, which lack no merit or substance. None of. the allegations or assertions levelled by the petitioner against the II respondents herein are substantiated in his petition. h) It is denied the allegation that resolution dated 02.11.2016 is fake and created. And meeting was held in terms of the provisions of the Companies Act 2013. There are no back ground players behind the 2nd respondent as alleged by the petitioner. Moreover the petitioner consistently refuses to identify by name, any of those so called, alleged 'background players' in his petition. It is clear that the petitioner has been reduced to concocting fictitious tales, narratives and even persons to lend credence to a false story of mismanagement and misappropriation. i) It is stated that shifting of the registered office of the Company was done to disable the petitioner's 2nd wife from illegally usurping Company documents and other possessions. It was done in duly complying with provisions of Companies act, 2013. j) It is further stated that the petitioner's objection to his removal as a Director and the appointment of additional Director, is rooted in a singular illegal reason, i.e. his removal as Director prevented him from freely liquidating Company assets to fuel his lifestyle. The petitioner has not been able to substantiate ,how his removal from Directorship on 30/06/2017 or the induction of additional Directors either violates the provisions of the companies act, 2013 or prejudices the interests of the 1st respondent Company. k) It is stated that the petitioner has resorted to slandering his own mother and other family members to enable his depredations. He has disregarded the fact that his shareholding has not been altered and that there is no mis- / management in the Company warranting to invoke jurisdiction of this Tribunal. Moreover all resolutions passed by the Board have been within the confines of the law and are not illegal in any way. l) Therefore, the respondents prayed the Tribunal to dismiss the Company petition with costs.;