IN RE: VIGHNAHARTA BUILDERS & PROJECTS (P.) LTD. Vs. STATE

JUDGEMENT

(1.) THE applicant in Company Application No. 67/2012 has sought amendment to CP No. 76/2011. The applicant had filed the Company Petition No. 76 of 2011 against the respondents under sections 111, 397, 398, 399, 402 and 403 of the Companies Act, 1956 ('the Act'), seeking various reliefs. Pursuant to that, the respondent Nos. 1 and 2 filed an application for dismissal of the Company Petition on the ground of maintainability. The aforesaid company petition came to be dismissed by the Company Law Board ('CLB') vide its order dated 5th January, 2012. The applicant preferred an appeal in the hon'ble High Court of Bombay being company Appeal No. 22 of 2012. The hon'ble High Court vide its order dated 19th April, 2012 disposed of the said appeal, thereby setting aside the order dated 5th January, 2012 and inter alia directing the CLB to hear the Company Petition No. 76 of 2011 filed by the applicant. The hon'ble High Court vide the said order further directed the present applicant to amend the Company Petition No. 76 of 2011 by adding Ms. Shivani Mane, who is the sister of the applicant and Ms. Shandhya Patil, who is claiming to be wife of Mr. Sunil Mane (deceased) as a party respondent. The counsel for the applicant pointed out that pursuant to the filing of the Company Petition No. 76 of 2011 in the Company Law Board ('CLB'), Mumbai and during the continuance thereof and during the subsistence of various orders passed by the CLB and thereafter during the continuance of the appeal filed by the applicant, the respondents indulged in various condemnable activities, which were not only prejudicial to the interests of the respondent No. 1, but have also greatly affected the image of the respondent No. 1 in the market. There are certain developments which have taken place, which are required to be brought on record for proper adjudication of dispute between the parties. These new facts would substantially demonstrate the complete mala fides of the respondents and also the high handed attitude of the respondents towards the applicant. These facts would also prove beyond any doubt that the respondents have on more than one occasion taken the law in their own hands with the sole ulterior motive to deprive the applicant of his legal rights. Therefore, it is imperative that these facts be allowed to be brought on record for adjudication of entire disputes between the parties. Hence this Application No. 67/2012 for amendment of the Company Petition No. 76 of 2011 to bring new facts, as mentioned in the Schedule annexed on record. The applicant states that the present Application is bona fide and is filed in compliance of the order passed by the hon'ble High Court. Grave harm, prejudice would be caused to the applicant, if the present application is not allowed. The balance of convenience also lies in favour of the applicant. On the other hand no harm, injury or prejudice would be caused to the respondents if the present application is allowed.

(2.) IT was pointed out that the petitioner was appointed as additional director of the respondent No. 1 from 30th April, 2011. Pursuant to the filing of the company petition before the CLB, the respondent Nos. 2 and 3 illegally and with mala fide intent removed the petitioner from the post of additional director without any valid reason and justification. In fact, the petitioner came to know about his removal as a director only in the month of February 2012 when Form 32 was filed by the respondent No. 1. It was contended that the provisions of the Act relating to removal of directors were not followed while removing the petitioner as a director, section 284 of the Act provides detailed provisions with regard to the removal of a director. The said provisions require the company to pass a resolution for removal of a director and issuance of notice to the director sought to be removed to enable him to represent himself. However, no such notice was ever given to the petitioner. The entire process of the respondents while removing the petitioner as the director is marred with ulterior motives and abuse of the principles of natural justice. No opportunity was ever given to the petitioner for representing himself and for this reason alone, removal of the petitioner from the post of the directorship is bad in law and unsustainable.

(3.) MY attention was drawn to the various illegal acts committed by respondent No. 2 after the death of petitioner's father whereby respondent No. 2 has allegedly illegally usurped the entire control and management of the company. Respondent No. 2 was able to commit these illegal acts only by keeping the petitioner out from exercising his legal rights as heirs to the estate of his deceased father more particularly the exercise of voting rights attached to the shares of his father in the company. My attention was drawn to the various forms filed with the Registrar of Companies ('RoC') between 28th April, 2011 to 30th September, 2011. Thereafter R -2 changed the locks of office and forcibly took possession of the projects sites of the R -1 company. Respondent No. 2 has allegedly illegally usurped the entire control and management of respondent No. 1 company by amending the articles of association of the company. The share capital was illegally increased. With effect from 30th September, 2011, respondent No. 2 has illegally removed the petitioner from directorship of the company and further illegally revoked his authority to issue cheques on behalf of the company. The petitioner pointed out that the major assets of the company are the development rights accrued to the company on various slum projects and developments rights arising therefrom. The said assets are available and can be misappropriated and/or sold/assigned to the disadvantage of the company. The petitioner apprehends that respondent No. 2 is trying to usurp these assets for personal gains. There can be huge manipulation in these transactions by accepting unaccounted cash.