DAKSHA INFRA BUILD P. LTD. Vs. ROCHEES RESORTS (INDIA) P. LTD.

JUDGEMENT

(1.) THE petitioner, a real estate company has filed this petition under sections 397 and 398 read with sections 402 and 409 of the Companies Act, 1956 (henceforth "the Act") alleging acts of oppression and mismanagement in respondent No. 1 (henceforth "the company"). Admittedly the petitioner held 24 per cent. shares in the company prior to the board meeting and the extraordinary general meeting held in July, 2009. It is also not in dispute that prior to the alleged cessation under section 283(1)(g) of the Act the petitioner had two directors on the board of the company, i.e., Mr. Yashpal Agnihotri and Mr. Y.C. Kaushik. Undisputedly the petitioner directors did not have notice of the board meeting of the company held on July 10, 2009, which allotted 10 lakhs equity shares to the respondents and their friends. During the course of arguments the respondents produced a letter dated September 5, 2007, written by Mr. Yashpal Agnihotri stating that notice of the board meeting dated September 3, 2007, were actually received by the petitioner director on September 4, 2007 and therefore praying that leave of absence be granted to them.

(2.) MRS . Meenakshi Arora, learned counsel appearing for the petitioner conceded the well established position in law that in the present petition the petitioners cannot seek enforcement of the memorandum of understanding dated May 18, 2007.

(3.) ACCORDING to the respondents on failure to attend three consecutive board meetings on September 3, 2007, December 5, 2007 and January 21, 2008, despite notice the petitioner directors vacated their office under section 283(1)(g) of the Act. The decision to raise the authorised share capital was taken by the company with a view to raise further capital required by the company on an urgent basis to complete the hotel/resort project at the earliest. Notice of the extraordinary general meeting for the said purpose was received by the petitioner on June 30, 2009. According to the respondents the petitioner directors had ceased to hold office on account of not attending three consecutive board meetings held on September 3, 2007, December 5, 2009 and January 25, 2008. Since Mr. Yashpal Agnihotri and Mr. Y.P. Kaushik were no longer on the board of directors the decision taken by the board of the company on July 10, 2009 to allot 10 lakhs equity shares of Rs. 10 each cannot be assailed by the petitioner on the ground that it was done with a view to reduce the shareholding of the petitioner to an object minority. Since the petitioner did not hold the requisite share qualification under section 399 of the Act the petition was liable to be dismissed.