Cp
No.25 of 2002
Present:Sh.
.K.C. Ganjwal, Member
In the matter of Companies Act,
1956, Sections 397 and 398
AND
In the matter of M/s Disha Research
and Marketing Services Pvt. Ltd
And
In the matter of:
Shri Rohit Churamani ..Petitioner
Vs.
Shri U.P. Mathur, Advocate ..for
petitioner
Shri Sonal Jain, Advocate ..for
respondent No.2
O
R D E R
1. This company
petition is filed by Shri Rohit Chudamani against M/s Disha Research and
Marketing Services Pvt. Ltd. 24,
Vasundhra Limited, Delhi-96. M/s
Disha Research and Marketing Ltd was incorporated as a private limited company
on 10.1.2000 with the registered office at Faiz Road, Karol Bagh, New Delhi and
which was subsequently shifted by respondent No.2 to Vasundhra Enclave, Delhi. There were three first directors of the
company the petitioner, Respondent No.2 and Mr. Pandey and they were to hold
office till their life time or till they resign as per Article 23 of the
Article of Association of the company. One
of the directors Mr. Pandey resigned on 4.10.2000 and both the petitioner and
Respondent No.2 remained the only two directors with equal shareholding holding
10000 equity shares of Rs.10 each. Both
the directors were drawing a salary of Rs.24,500 per month. Both had also advanced loans to the
company. The Petitioner had advanced
loan to the tune of approximately Rs.75 thousand as on 31.3.2001. The company was carrying on the business of
market research.
2. The learned
counsel for petitioner submitted that differences arose in August, 2001 between
the directors when Respondent No.2 who was exclusively handling the accounts
refused to render the accounts. They
tried to settle the issues amicably but failed to do so. The main allegation in the petition is that
Respondent No.2 wanted to grab the
Income tax refund order of
Rs.2.55 lakhs and siphon of the same but due to timely intervention of the
petitioner the refund order could not reach in the hands of Respondent No.2 and
has been kept safely in the bank with the intervention of this Board. The Respondent shifted the registered
office of the company from Karol Bagh
to Vasundhra Enclave, Delhi. The
petitioner became suspicious of the actions of Respondent NO.2 from his letter
dated 1.5.2002 showing a different address other than the Karol Bagh address.
The petitioner then approached ICICI Bank ,– Company’s bankers when he was
informed on 11.5.2002 that the petitioner was removed from the directorship of
the company in the EGM of 11.2.2002 and the respondent No.3 who happens to be
the father of Respondent No.2 has been appointed as director. The petitioner submits that the EGM held on
11.2.2002 was illegal and null and void as no notice of any Board Meeting or
EGM was received by the petitioner as a director or shareholder. In a two member company like this there
cannot be any meeting without the presence of the petitioner. It is alleged that the petitioner has been
removed under Section 284 of the Companies Act, 1956 but the procedure
prescribed in sub-sections 2/3/4 and 5 of Section 284 of the Companies Act has
not been complied with. As per
respondents the notices were sent under UPC on 3-12-2001, 17.12.2001,2.1.2002
and 9.1.2002. The petitioner has
submitted that Regd./UPC are fabricated and never received by the
petitioner. The post office stamps
affixed on the alleged notices are not genuine. The stamps indicate some extra words which has led to the false
postal receipts, the alleged regd. letter has been posted on 17.12.2001 which
happens to be the closed public holiday on account of Idul-Fitur and the said
post office was closed on that day.
There are only two shareholders and there are the only two directors
.The petitioner has not attended any Board Meetings and accordingly in his
absence, the quorum of atleast two directors for the Board Meeting and atleast
two shareholders for the EGM was not fulfilled the meetings convened were
illegal. The minutes of these meetings
have also not been filed by the respondents.
The three Board Meetings were allegedly held on 10.12.2001, 24.12.2001
and 10.1.2002 within a period of one month which is not in compliance with the
provisions of Section 283 (1)(g), being less than 3 months period in holding
these meetings. The respondent No.2 has
allegedly sent notice by registered post as also by UPC. The need for sending notice twice indicate
that the respondent got the postal stamp made and he did not mind using it time
and again. The Respondent No.2 also
diverted the main business of the company with Hindustan Lever Ltd to his own
sole proprietary firm. The Respondent
No.2 has also not rendered accounts for the year ending 31.3.2002 and for
subsequent years. All the books of
account and statutory record are in the custody of Respondent No.2 who was
dealing with accounting matters from the very beginning. No AGM has been held after the removal of
the petitioner as a director. The
petitioner has prayed that removal of petitioner as a director on 11.2.2002 and
appointment of Respondent No.3 be set aside.
The accounts of the company for the year ended 31.3.2002 be ordered to
be audited by the statutory auditors namely, M/s Kumar Parveen and
Associates.
3. The Learned
Counsel for Respondents submitted: The
respondent company was started by respondent No.2 who is a research
professional and had held senior responsible position in top ranking research
companies in India and abroad. While
working as a research professional, the Respondent No.2 came in contact with
the petitioner who was a junior to him.
Respondent No.2 started his own venture in 1999 and the petitioner
approached him that he was unsatisfied with his job and wanted a change. The Respondents No.2 treated the petitioner
as a good friend, and he offered the petitioner to join him to start a new company. The petitioner did not have the funds to
contribute in setting up the proposed company. The respondent NO.2 offered to
make the total investment required for setting up the company. Hence the respondent company was set up on
1.1.2000 to offer market research and consultancy services. It is a knowledge
based service organization and its credibility is based on the reputation and
credibility of its directors, researchers and consultants. The respondent company was doing job mostly
for M/s Hindustan Lever Ltd. At the
instance of the petitioner the work of incorporation of the company was given
to Mr. Parveen Kumar of M/s Kumar Parveen and Associates, Chartered Accountant
who is a close friend of the petitioner and the registered office of the
company was also shown at the premises of M/s Parveen and Associates situated
at Karol Bagh, New Delhi. The
authorized share capital of the company at the time of incorporation of the
company was Rs. 2 lakhs consisting of 20,000 equity shares of Rs.10 each. Initially 2150 shares only were shown as issued
even though the respondent No.2 had already invested almost Rs.2 lakhs in the
company on the advice of Mr. Parveen Kumar. The petitioner was expected to work
full time for developing and managing the projects acquired. However, the petitioner was tardy and seldom
attended the office. The petitioner in
the meanwhile indulged in undercutting clients of the company for his personal
gains and working side by side independently in competition with the company. In furtherance to his ulterior motives, the
petitioner issued instructions to the bankers of the company to stop honouring
any cheques unless signed by both the directors knowing fully well that the
same would lead to chaos in the company as approximately 20-30 cheques were
issued for clearance every day. The
petitioner in collusion and connivance with Mr. Praveen Kumar increased the
percentage holding of the Petitioner and delayed the completion of books of
accounts, changed the return which was signed jointly to another return signed
by petitioner alone and filed the same.
In this manner, the petitioner alongwith the Chartered Accountant of his
choice has colluded to hijack and manipulate the functioning of the company to
his own interest. In one instance which
the respondent No.2 was able to find out that after the work for one of the
client was completed by the company, M/s Vaishnavi Advertising, had issued a
cheque No.126959 dated 13.12.01 from HSBC Bank to the company in which the TDS
worth Rs.3,060 was deducted the petitioner malafidely got the same cancelled
and got it issued in the name of his sole proprietorship firm called M/s
Progressive Consultants vide cheque No.068508.
In such circumstances EOGM was held on 11.2.02 for which notice was
given to him but he failed to attend the same and he was removed from the
directorship of the company for not attending three consecutive Board Meetings
for which due notice was given to the Petitioner and respondent No.3 was
appointed as director. Mr. Praveen Kumar,
CA was hampering the work of the company and was passing all the letters to the
petitioner. Therefore, the registered office of the company was shifted. The
petitioner connived with Mr. Praveen Kumar who collected the cheque of
Rs.2,55,276 of the refund of TDS from the Income Tax Department, took away this
cheque and instead of handing over the same to the respondent company handed
over the same to the petitioner. It was
further submitted that the accounts of the company for the year 2001-2002 are
being prepared by Mr. Amarjeet Sahni, FCA through Alka EDP Centre, but work on
the same has also come to stand still as the company is unable to pay
remuneration to the Chartered Accountants.
It is also submitted that M/s Kumar Parveen and Company were not re-appointed
as auditors of the company for the year 2001-2002 due to their indulgence, in
activities, incompatible with their professional status and detrimental to the
interest of the company.
4. The learned
counsel for respondent prayed that the petition as filed by the petitioner is
false and thus deserves to be dismissed.
5. I have considered
the arguments of the Learned Counsel of both the sides, it is seen from the
records that the petitioner holds 10000 equity shares of Rs.10 each fully paid up aggregating to Rs.1
lakh which constituted 50% of the subscribed and paid up capital of the
company. The Article 23 of the Articles
of Association of the company mentions that the first directors of the company
who shall subscribe to the Memorandum and Article of Association of the Company
and who shall hold office till their life time or till they resign are namely;
S/Shri Mr. Jayant Jain, Mr. Rohit
Churamani and Mr.Tarakeshwar K. Pandey.
Shri Tarakeshwar Pandey subsequently resigned as director of the company
and only two directors were left, out of which the petitioner is one of the
directors. Article 26 of the Article of
Association of the company indicates that the quorum necessary for the
transaction of the business of the Board Meeting, subject to Sec 287 of the
Companies Act shall be one third of the total strength or atleast two which
ever is higher.
6. After the
resignation of Mr. Pandey which is an admitted position, only two directors
were left and without the presence of the petitioner, no Board Meeting was
valid. Accordingly, all Board Meetings/EGM
held by the company without the petitioner are illegal and set aside. The
petitioner is restored as director of the company which position he held before
the alleged EGM held on 11.2.2002.
7. The refund order
received by the petitioner and kept with him of Rs.2,55,276 should be
immediately deposited within three days in the accounts of the company, if not
already deposited as per order dated 28.5.2002. There is a dispute and some allegations have been leveled against
the company’s auditor M/s Kumar Parveen and Associates for working against the
interest of the company in connivance with the petitioner. The petitioner being a founder director and
having invested a substantial amount in the company feels oppressed, I am of
the view that petitioner should be given an option in case he desires to go out
of the company on return of his investment in shares of the company. In case the petitioner is willing to part
with his shares, the company/respondent should purchase the shares on valuation
to be made by an independent valuer.
The valuation will be based on the balance sheet as on 31.3.2001 being
the approximate date of the removal of the petitioner from
8. directorship. In case the petitioner decides to go out of
the company then on an application made by him, a valuer will be appointed by this Board in consultation with both
the parties.
9. With the above
directions, the petition is allowed.
There are no orders to cost.
( K.C. GANJWAL )
New Delhi,
Dated the 15th July,
2004.