CP
No. 11/2002
Present:
K.C. Ganjwal, Member
In the matter of Section 397 and 398 of
the Companies Act, 1956
And
In the matter of:
Capt. Manmohan
Singh Kohli ..Petitioner
Vs.
1. Mr. Sajad Sultan, Advocate, ..for
petitioner
2. Mr. B.N. Sah, Practicing Company Secy. ..for petitoner
3. Col. M.S. Kohli, ..for
petitioner
4. Mr. Naveen Chawla, Advocate
..for
Respondent 1,2 & 4
5. Mr.
Puneet Bhagat, ..for
Respondent No.3 in person
O
R D E R
1. The CP
No.11/2002 has been filed by
Capt..Manmohan Singh Kohli (petitioner). The petitioner was one of the first
director and shareholder holding 50,000 equity shares of Rs.10 each of
respondent company M/s Venture India Properties Pvt. Ltd forming 33.33% of its
total share Capital. The petitioner is therefore, entitled under Sec.399 of the
Companies Act, 1956 to file this petition.
2. The respondent
company M/s Venture India Properties (India) Pvt. Ltd. was incorporated on
1.9.1998 under the Companies Act, 1956 having its registered office at College
Road, Pathankot. Mrs Sunita Bhagat
(R-2), Mr. Yudhisterpal Sharma (R-4) and Col S.N. Yadav (R-5) are the directors
of the respondent company. Shri Puneet Bhagat (R-3) is the son of respondent
No.2 and was appointed as an Accountant of the company.
3. The authorized
share capital of the company as on 31.3.2000 is Rs.20 lakhs divided into
2,00,000 equity shares of Rs. 10 each.
The issued, subscribed, paid up share capital as on 31.3.2000 is
Rs.15,00,000 divided into 300 equity shares of Rs.10 each duly paid up issued
for cash at par and 1,49,700 equity shares of Rs.10 each fully paid up issued
for consideration other than cash. The
Articles of Association of the company indicate the objective of the company to
promote, buy, sell or acquire ,construct, or renovate any land – building
houses and other immovable property of any kind.
4. The facts of the
case given by the petitioner are that the petitioner has been honored with
numerous awards including Padma Bhushan and Arjuna Award and is a dedicated
sportsman. M/s Venture India (Regd) a
partnership firm was started in 1995 by Shri Ravinder Kohli son of the
petitioner with Mr. S.K. Mutreja, as its two partners with its Head Office at
East of Kailash, New Delhi for carrying on the business of Real Estate
developers and contractors. The firm
was awarded a contract by Air Force Naval Housing Board(R-7) to procure and
deliver over 108 farm houses of 1 acre each in Tehsil Nuh Gurgaon on a turn key
basis for the defence officers . The company acquired 130 acres of land 108
acres to be used for farm houses balance 22 acres for infrastructure. The petitioner has alleged that bulk of the
land was purchased @ Rs.85,000 to 1,20,000 per acre whereas the sale price
fixed by the respondent No.7 was Rs. 2.40 lakhs per acre increased later on to
Rs.2.70 lakhs per acre.
5. Subsequently, R-3
approached the petitioner and consequently Mrs. Suneta Bhagat mother of Mr.
Puneet Bhagat was admitted as the third partner in the firm on 26.2.1996 and
the partnership firm was reconstituted as under. Capt M.S. Kohli, (petitioner),
Mr. Harkishan Singh Kohli, Mrs. Sunita
Bhagat (R-2) Mr. Sunil Kumar Mutreja, Mr. Sameer Mutreja and Mr. Darshan Kumar.
Mr. Puneet Bhagat (R-3) was appointed as a accountant of the firm. Soon after
the deed was registered Mr.Har Krishan Singh Kohli, Mr. Sameer Mutreja and
Mr.Darshan Kumar retired from the firm as per agreement dated 23.8.1996. Consequent upon the retirement of the three
partners from the firm the partnership firm was reconstituted as under:-
1. Capt.M.S.
Kohli - 33.33% shares
(petitioner)
2. S.K.
Mutreja, 33.33% shares
3.
Mrs. Suneta Bhagat- 33.33% shares(R-2)
6. Meanwhile, Mr.
S.K. Mutreja decided to retire from the partnership firm during Aug.1998
and Col. S.N. Yadav (R-5) was instead
inducted as a partner. The company was incorporated on 1.9.1998 and took over
the business of partnership firm as a going concern with effect from 10.9.1998.
7. The learned
counsel for petitioner submitted that Shri Puneet Bhagat R-3 though not a director in the respondent
company is however, having substantial powers of management through remote
control and has master minded all irregularities, oppression and mismanagement
of the company. Petitioner has alleged
that R-3 on the pretext to expedite operation of the projects, very cleverly
manipulated the petitioner and the respondents to sign blank cheques with a
pre-determent malafide intention of misusing the same at an appropriate time. R-3 being a Chartered Accountant and
advocate probably thought that the
manipulation in the partnership becomes too apparent and suggested to convert
the partnership firm into a Private Limited company. Before even the petitioner could react to the suggestion, R-3 had
already sought availability of name of the new company i.e. Venture India
Developers Pvt. Ltd. from the Registrar of Companies, NCT Delhi and Haryana and
had got the Memorandum and Articles of Association printed. The petitioner
alleges that when he objected and became vigilant R-3 got the company incorporated under the name of Venture India
Properties Pvt. Ltd. with the office of
ROC, Jalandhar.
8. It was further
alleged that as a first step, R-3, on the pretext of maintaining accounts,
shifted the entire records and files from the Gurgaon office to K- 32 Jangpura
Extn. New Delhi without the prior consent of the other partners. When objected by the other partners, R-3
persuaded them to agree in the ultimate interest of the company. Similarly, R-3 procured a large number of
pre-signed blank cheques from the petitioner and Shri S.K. Mutreja so that he
could misuse these cheques at a future date.
R-3 also refused inspection of the accounts books and misbehaved
physically with the partners and other representatives. The petitioners have mentioned that during
Aug. 1998 a cheque was issued to one Mr. Ashok Mehta (brother-in-law of R-4)
resident of Noida. On checking it was
noticed that Mr. Mehta never lived there, and his actual residence was at Pathankot. This cheque had been issued purportedly for
undertaking fencing and earth leveling work in Neh whereas the job was actually
carried out by somebody else. Some other instances have also been quoted by the
petitioner of having issued cheques to wrong persons by respondent No.3 which
had been dishonored due to insufficient funds.
In order to harass the petitioner the proceedings under Sec. 138 of
Negotiable Instrument Act 1881 have been initiated in Kathua,J& K..
9. The petitioner
has further alleged that R-3 withdrew Rs.9.40 lakhs fraudulently for giving
consideration for transfer of R-2’ shareholding to Mr. Anil Vaswani. Mr. Anil
Vaswani has not come forward to purchase the shares till date and the amount of
Rs.9.40 lakhs has not been returned to the company. The petitioner apprehends that R-3 in collusion with others may
cause illegal increase of shareholding of his mother (R-2) either by fresh
allotment of shares or by illegal manipulation of transfer of shares.
10. Respondent No.3
misused the provisions of Section 283 of the Companies Act, 1956 and removed the petitioner and his son Mr.
Ravinder Kohli from the directorship of
the company on 26.3.99. The petitioner
has alleged that his removal was illegal.
The notice of the Extra Ordinary General Meeting was issued on 20.2.99
which has not been received by the petitioner as mentioned by him. Although the respondents have filed copies
of the UPC as proof of service. The petitioner has alleged that the UPC’s have
been posted from Shahdara whereas the Regd. Office of the company is at
Pathankot and Head Office at Noida, and hence the UPC’s are procured. The petitioner has further stated he was
required to be given special notice under Sec. 284(2) of the Companies Act,
1956. The respondents have not filed
any proof of having given such special notice under Sec 284(2) to Capt.Kohli
and Mr. Ravinder Kohli before removing them from the directorship of the company. The learned counsel for the petitioner relied his arguments on
the judgement of CLB in the matter of M/s Global Vacations Pvt. Ltd and Mr.
Tarun Berry Vs. Mr. Atul Sharma and Ors. in CP No.93/2000. The learned counsel
referred to para 11 of this judgement to press his point that a meeting of the
Board of Directors held without sending notice to the director was invalid and
the resolution passed therein are also not valid. The relevant portion of para 11 of the judgement reads as
“----------In the absence the copyof the said notice and the postal receipts evidencing
that the notices were duly sent at the right address and was received by the
petitioner, we are of the view that the respondents have failed to discharge
their burden to substantiate that the AGM was validly held and the resolutions
therein was validly passed. It will be
necessary to mention that the Apex Court in the case of Parameshwari
Prasad Gupta Vs Union of India (1973 SC 2389) has held that a meeting
of the Board of Directors held without sending notice to the director was
invalid and the resolutions passed therein are also not valid.”
11. The petitioner
submitted that in a sudden and abrupt development the respondent No.3
manipulated the statutory books and shifted all of them to his residence at
A-8, Sector 17, Noida . The Board
Meeting for shifting of office is purported to have been held on 22.3.99 for
which no notice whatsoever had been issued to the petitioner director. The petitioner has further alleged the
diversion/misappropriation of funds and that
R-3 had projected a profit of Rs.15-20 lakhs whereas the actual
financial results show a zero profit. The R-3 manipulated purchase in such a manner that the said land
was first transferred to his close relatives/associations through general power
of attorney and then sold to the company at a higher price. This has caused substantial legal /financial
loss to the company with corresponding undue illegal benefits to R-3 and his
friends and relatives. He had extended a sum of Rs.17 lakhs to the company by
way of unsecured loan which is not being returned by the company nor any interest
thereon has been paid. The petitioner
has also pointed out that a relative of R-3 was illegally appointed as a consultant on a salary of Rs.25,000 per
month. The petitioner submits that
there is no valid justification for payment of such amounts and R-3 is
siphoning of the funds of the company.
The petitioner also submitted
that he being director of the company was not informed of the meetings of the
Board as well as the Extra Ordinary General Meeting as a result of which
certain important decisions had been taken without his knowledge.
12. The petitioner
has prayed for the following reliefs:-
I.
Direct restoration of the petitioner on the board, who has been
unlawfully removed from the directorship.
II.
The operation of bank account should be made with the joint
signature where atleast one of the signatories should be the representative of
the petitioner.
III.
to direct investigation into the affairs of the company under
Section 235 of the Companies Act, for a period not less than 5 preceding
financial years
IV.
To order to wind up the company on the ground that it is just and
equitable to do so.
13. The other reliefs
asked for are not of much consequence to this petition and as such they have
not been listed.
14. The reply has
been filed by Respondent No.1,2 and 4
together. Respondent N0.3 has filed a
separate reply. In reply of respondent no.1,2 and 4, the learned counsel for
respondent submitted that the petitioner has chiefly made allegations against
R-3 who is neither a member nor a director and nor an employee, nor an agent,
nor any way connected with running of day to day affairs of the company. The counsel for the respondent submitted
that there is misjoinder of parties and R-3 has no locus-standi in the company. There is no continuing act of oppression or
mismanagement alleged. Further there is
no allegation against R-1,2 and 4. All
allegations are against R-3. The petitioner has sought to challenge the past
and completed transactions of the company.
The petitioner has concealed material facts that he has filed numerous
complaints before AFNHB and also with various police stations on the same
grounds. The petitioner is a person of fractious temperament and prone to
making wild allegations. The learned
counsel for respondents has enumerated number of complaints filed with the
police at Gurgaon and Noida. The
respondent have alleged that the petitioner was creating obstructions in smooth
functioning of the company and he was therefore removed from the directorship
of the company. Many other instances of
writing letters to various authorities including Air Force, Naval Housing Board
was also referred to by the learned counsel for the respondent.
15. The learned
counsel for respondent further submitted that the partnership firm which was
started in 1995 with Mr. Ravinder Kohli and Mr S.K. Mutreja as its partners,
was not awarded contract by R-7(AFNHB).
Only a letter of intent was issued to this firm and the same firm was
reconstituted on 26.2.1996. It was this
reconstituted firm which entered into a contract with R-7 for developing 108
farm units for the retired and serving air force and naval personnel. The respondents have also denied that the
bulk of land was purchased at Rs.85,000 to Rs.1,20,000 per acre. The purchase of land was duly signed by the
petitioner and were audited by the independent auditors. The respondents have further submitted that
R-3 did not approach the petitioner and Mr. S.K. Mutreja. In fact the petitioner who did not have
adequate funds for carrying out the project, approached R-2 with a request to
assist the firm by bringing her funds and offered her to become a partner in
the firm. It was only then that R-2 was
inducted as a non working partner in the firm on 26.2.96 which was
reconstituted as Venture India (Regd.).
The respondents have denied the allegation that R-3 offered to maintain
accounts of the firm. It was a mutual
decision of all partners as per partnership deed dated 26.2.1996 under which
M/s Puneet Bhagat and Co. an independent firm of Chartered Accountants was
appointed by the partnership firm and it was decided that all the books of
accounts of the partnership firm shall be maintained by them. The respondents have reiterated that R-3 had
no locus-standi in the erstwhile firm and the petitioner has made wild
allegations which are full of contradiction. Further as the firm has ceased to
exist allegations against the firm cannot be taken into account. The respondents have further submitted that
the company was incorporated with the consent of the petitioner who became a
promoter director and actively participated in its incorporation.
16. The learned
counsel for respondents further submitted that the petitioner and his son were
removed from the directorship in 1999 as per provision s of Sec 283 of the
Companies Act, 1956. The removal was done after meticulously following the
provisions of the Companies Act, by the shareholders of the company which is
clear from the minutes of the Extra Ordinary General Meeting of the company
held on 27.3.99. The respondents
have further mentioned that the
petitioner has admitted that he was guiding the construction of the project of
the company. This admission clearly
demonstrates that the petitioner was in charge of the only project of the company and in fact running
the affairs of the company. The same
person, is now alleging mismanagement without producing any evidence of the
same against present directors. Further
the petitioner and his son were removed as they were acting against the
interest of the company.
17. The counsel for
the respondent also submitted that the company withdrew Rs.9.40 lakhs for
meeting its own needs which is duly accounted for in its books of
accounts. Further the respondent stated
that all the other allegations with regard to siphoning of funds are without
evidence and based on conjectures and apprehensions which cannot form the basis
of oppression and mismanagement.
18. The learned
counsel for respondent referred to the following judgements:-
1. Shanti Prasad
Jain Vs. Kalinga Tubes Ltd 1965 35 Comp. Cases 351(SC).
The Supreme Court
in this case has defined oppression as
“The phrase “oppressive to some part of the members”- suggest that the conduct
complained of “should at the lowest involve a visible departure from the
standards of fair dealing and a violation of the conditions of fair play on
which every shareholder who entrusts his money to a company is entitled to
rely.”
2. Needle Industries
(India) Ltd. and Ors. Vs. Needle Industries Newey (India) Holding Ltd.and Ors.
1981 51 Comp. Cases 743 (SC)
The Supreme Court
in this case has held that “It is clear from these various decisions that on a
true construction of S.397, an unwise, inefficient or conduct of a director in the performance of his duties cannot
give rise to a claim for relief under that section. The person complaining of oppression must show that he has been
constrained to submit to a conduct which lacks in probity, conduct which is
unfair to him and which causes prejudice to him in the exercise of his legal
and proprietary rights as a shareholder. “
3. V.M. Rao Vs. V.L.
Dutt and Ors. and V.M. Rao and Ors. Vs. Rajeshwari Ramakrishnan and Ors. 1987
61 Comp. Cases 20 (Madras High Court)
The Madras High
Court in this case has enumerated the requirements of oppression as “these
decisions are, therefore, clear authority for the position (1) that the
oppression complained of must affect a person in his capacity or character as a
member of the company; harsh or unfair treatment in any other capacity, e.g. as
a director or a creditor is outside the purview of the section;(2) there must
be continuous acts constituting oppression up to the date of the petition; (3)
the events have to be considered not in isolation but as a part of a continuous
story; (4) It must be shown as a preliminary to the application of section 397
that there is just and equitable ground for winding up the company; (5) The
conduct complained of can be said to be “oppression” only when it could be said
that it is burdensome, harsh and wrongful; oppression involves at least an
element of lack of probity and fair dealing to a member in matters of his
proprietary right as a shareholder.”
4. Surinder Singh
Bindra and Ors Vs. M/s Hindustan Fastners Pvt. Ltd. and Ors. AIR 1990 Delhi 32.
In this case the
Delhi High Court has held that the acts of oppression complained of should be
continuous acts, continuing upto the date of petition.
5. Hanuman Prasad
Bagri and Ors. Vs. Bagress Cereals Pvt. Ltd. and Ors 2001 105 Comp. Cases. 493
(SC)
The Supreme Court
in this case has taken a similar view as the Madras High Court above.
The learned
counsel for respondent 1,2 & 4 quoted the above judgements to mention that
the petitioner and his son were working against the interest of the company and
they had lodged complaints at various police stations and to other authorities. They were not functioning as responsible
directors and their removal from the directorship, therefore, was not an
oppression as it was not a continuous act.
Smt. Kanak Lata
Ghose Vs. Amal Kumar Ghose AIR 1917 Calcutta 328.
6. M/s Achamma
Thomas Vs. E.R. Fairman AIR 1970 Mysore 77.
These two cases
deal with dispatch of notices by UPC’s and receipt thereof.
The learned
counsel submitted that they had posted the notices from Shahadara Post Office
as one of their employee was residing in Shahadara and while going to home he
dispatched these letters at Shahadara.
Once the letters have been posted under UPC the presumption should be
made that service of document has been completed in view of above quoted two
judgements.
19. The counsel for
R-1,2 and 4 further submitted that the petitioner has been continuously drawing
salary whereas R-2 was not drawing any salary.
Further with regard to the loan of the petitioner which is only Rs.9
lakhs, he has never asked for it to be returned. Further other directors have also given substantial interest free
loans to the company.
20. The respondents
NO.3, Shri Puneet Bhagat who is son of R-2 Smt. Suneta Bhagat has filed a
separate reply and argued his case in person.
The R-3 submitted that he is neither a member nor a shareholder nor a
director and nor an employee, nor an agent nor any way connected with running
of day to day affairs of the company.
The respondent No.3 has also mentioned that the petitioner has hidden
the material facts that he has filed numerous complaints before the Air Force
Naval Housing Board and also various police station of Gurgaon , Delhi and
Noida while lodging false report with an intention to harass him.
21. The respondent
No.3 submitted that the petitioner
filed complaint with AFNHB stating that Mr. Puneet Bhagat who happens to
be the son of director Suneta Bhagat misappropriated Rs.9.40 lakhs. Again in
March , Oct and Nov. 2000 the petitioner complained with Economic Affairs
Wing of Delhi Police stating that Mr.
Puneet Bhagat with malafide intention took away all the files of the firm to
his office at K-32 Jangpura Extn, New Delhi and he clandestinely got the
company registered under a different name “Venture India Properties Pvt. Ltd.”
etc.
22. The respondent
NO.3 has denied all these allegations and submitted that he was constrained to
file a complaint against the petitioner
with the police for various irregularities and criminal actions of the
petitioner. During the third week of Feb. 1996 at a meeting held at the
residence of Capt. M.S. Kohli, at Sainik Farms, R-3 met the petitioner and Mr.
Sushil Kumar Mutreja and Mr. Ravinder Kohli.
The above named three persons introduced themselves as directors of M/s
Venture India P. Ltd and further informed him that they were going to be
allotted a contract with Air Force Naval Housing Board and would allot him a
majority shares if he would finance their business. A partnership firm was thus
constituted on 26.2.1996 between the petitioner, Mr. Sushil Kumar Mutreja, R-2,
Mr. Hari Kishan Singh Kohli,. Mr. Sameer Mutreja and Mr. Darshan Kumar having
its office premises at E-4, East of Kailash, New Delhi. These premises are owned by the petitioner
where he also runs a guest house.
Accordingly, from Feb 26, 1996 to Apr 30, 1996 R-3 and R-2 paid a sum of
about Rs.53.21 lakhs into the partnership firm
accounts. It is further submitted that after the payments were made, the
petitioner refused to have the business taken over by Venture India Pvt. Ltd as
promised initially. With their money
struck, respondent NO.3 and respondent NO.2 were left with no option. Subsequently, the partnership was reframed
vide an agreement dated 23.8.1996 wherein the petitioner, Mr. Sushil Kumar
Mutreja and respondent NO.2 remained partners with one third share each. From September 1996 to Aug. 1998, the
petitioner and Mr. Sushil Kumar Mutreja maintained a strong hold on the
partnership, and answering respondent as well as respondent No.2 remained
intimidated, in view of the risk of losing the huge investments made by them,
R-2 had handed over some pre-signed blank cheques by her to the petitioner,
through respondent NO.4 to felicitate business operations. On 28.9.98 Mr.
Sushil Kumar Mutreja retired from the partnership firm and respondent NO.5
became a partner in the partnership firm. It was further submitted by R-3 that
it is pertinent to note that no company by name of M/s Venture India Pvt. Ltd.
ever existed and Mr. Ravinder Kohli and the petitioner forged the two letters
to cheat the answering Respondent and R-2 to induce them both to pay a sum ofRs.53.21
lakhs to the partnership firm. The
respondent No.3 has also given instances of various complaints filed by
petitioner against them.
23. The respondent
No.3 has mentioned that he is not a defacto director of the company as alleged
by the petitioner nor he is having substantial power of management, through
remote control. Respondent NO.3 has also denied that he offered to maintain the
accounts of the firm. On the contrary,
it was a mutual decision of all the partners as per clause 7of the partnership
deed dated 26.2.96 under which M/s Puneet Bhagat and Company, an independent
firm of Chartered Accountants was appointed by the partnership firm and it was
further decided that all the books of accounts of partnership firm shall be
maintained by them. The records were
thus kept at the premises of Puneet Bhagat and Company Chartered Accountants at
K-32, Jangpura Extn. New Delhi. The
respondent No.3 denied being in
majority, or that he had in any way
acted to the detriment of the
petitioner since respondent was neither a shareholder nor a director of the
company. He has further stated that a
huge loan outstanding against the firm amounting to Rs.16,64,528 is yet to be
paid to him. This loan was given by R-3 to the firm on a personal guarantee of
the petitioner and it is the petitioner who now wants to escape the liability
towards repayment of the same by filing such frivolous litigations and he
submitted that the petition be liable
to be dismissed.
24. I have carefully
considered the pleadings and arguments of the learned counsels. It is on record that the firm in the name of
M/s Venture India (Regd.), was started by Capt. M.S. Kohli, a distinguished
person with numerous awards including Padma Bhushan and Arjuna Award alongwith
Mr. S.K. Mutreja. This firm entered
into a contract with Air Force Naval Housing Board Subsequently this firm was
converted into a company and incorporated on 1.9.1998 under the name of Venture
India Properties Pvt. Ltd. The shareholding pattern of the company has been as
follows:-
1. Capt. M.S.
Kohli 33.33%(PETITIONER)
2. Mrs. Suneeta
Bhagat 33.33%(Respondent
No.2
3. Col. S.N.
Yadav 33.33%(Respondent
No.5
Besides above
three first directors, two additional directors were appointed namely, Mr.
Ravinder Kohli (son of petitioner) and Yudhisterpal Sharma
25. The petitioners
have prayed for number of reliefs and the main relief is that the petitioner
and his son have been unlawfully removed from the directorship of the
company. The other allegations
regarding misappropriation of funds, non refund of unsecured loan and illegal
appointment of consultant have already been answered by the respondents in
their reply and I need not dwell on them. The petitioners had alleged that
respondent No.3 Shri Puneet Bhagat manipulated the statutory books of the
company and shifted the same to his residence at Noida. It is observed that the firm under the name
of Puneet Bhagat and Company was appointed by a consent resolution dated
22.3.1999. No doubt Shri Puneet Bhagat
(R-3) is an interested party as he lended the money to the firm and obviously
he was looking after his interest through his mother Mrs. Suneeta Bhagat (R-2)
infact she was inducted as a non working director in order to protect the
interest of R-3 as he was neither a director nor a shareholder nor a member nor
an employee nor an agent nor in any way connected with running of day to day
affairs of the company. The argument of
the learned counsel of the petitioner that he was functioning as a defacto
director is not tenable.
26. The only issue to
be decided is the removal of Capt. M.S. Kohli and his son from directorship of
the company. The petitioners have argued that necessary notice of the Board
Meeting was issued as per provisions of the Companies Act, 1956. The notice was also sent to the petitioner
and his son under UPC from Shahadara Post Office. To support their argument the learned counsel for respondent have
relied on two judgements which have been quoted above. The learned counsel for petitioner had
pointed out that while the company has registered office at Pathankot and is
functioning from Noida, the posting of notice from Shahadara Post Office points
to doubts and manipulations. There is nothing on record or in the rules that
the notice of a company has to be ssued from the nearest post office, it is up
to the company to decide from which post office they would like to issue the
notice as per their administrative convenience. In this case the respondents have argued that one of their employee
who is staying in Shahadara who was entrusted this work of
posting notices
from Shahadara. There is nothing on
record to prove that the stamps of the post office is fake or manipulated. As such, I am not inclined to accept the
arguments of the petitioners that the dispatch of notice was bad in law because
it was sent from some other post office which was not situated near to the
company’s registered or working office.
27. The second
point raised by the learned counsel for
petitioner relates to special notice required to be sent to him under Section
284 (2) and (3) has not been complied with in as much as special notice has to
be sent to the director concerned and he is entitled to be heard on the
resolution of his removal at the meeting.
The respondents have failed to point out any special notice sent by
them. As such, the removal of Capt.
M.S. Kohli and his son Shri Ravinder Kohli from the directorship of the company
is bad in law. The respondents have
failed to comply with the provisions of Section 284(2) and (3) of the Companies
Act,1956. I, therefore, set aside the resolution passed in the Extraordinary
General Meeting of the shareholders of Venture India Properties Pvt. Ltd. held
on 27.3.1999 at A-8, Sector 17, Noida being illegal and not in compliance with
the provisions of the Companies Act mentioned above. Consequently, both Capt. M.S. Kohli and Shri Ravinder Kohli are
restored to their original position as directors as on 27.3.1999. All subsequent actions taken by the company
in this regard would also be null and void.
28. The petitioner
having invested a substantial amount in the company feels oppressed, I am of
the view that the 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, then 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 31.3.1999 being
the approximate date of the removal of the petitioner from directorship. In
case the petitioner desires to go out of the company, then on an application
made by him a suitable valuer will be appointed by this board
in consultation
with both the parties. With the above
directions the petition is disposed of.
There are no orders as to costs.
(K.C. GANJWAL)
Member
New Delhi,
Dated: the 15th March, 2004.