High Court of Judicature at Bombay
R.D. DHANUKA, J.
Jer Rutton Kavasmaneck @ Jer Jawahar Thadani & Another
Versus
Gharda Chemicals Limited & Others
Company Appeal (L) No. 41 of 2012 in CLB Company Application No. 85 of 2012 in CLB Company Petition No. 87 of 2010
Decided on : 20-12-2012
1. Admit. By consent of the parties, the present appeal was heard finally at the admission stage and is disposed of by this Judgment.
2. The appellants have formulated following questions of law for determination of this Court :
A. Whether the CLB does not have the power to review its earlier Order when the earlier order was not obtained on fraud or fabricated documents?
B. Whether the CLB could not have entertained an application filed by the 1stRespondent, which was in effect and even stated to be for review of an earlier order passed by the CLB?
C. Whether the CLB could not have vacated its Order dated May 21, 2012 on the same grounds on the basis of which the Order dated May 2012 was passed?
D. Whether the CLB is required to “pronounce” its orders and whether an order merely posted by speed post without its being “pronounced” is not a judicial order in the eyes of law?
E. Whether the CLB could not have permitted the 1st Respondent from implementing a resolution purportedly passed at its Extraordinary General Meeting when :
(i) the CLB itself permitted amendment of the Company Petition impugning the convening of the said EOGM, and
(ii) the CLB had adjourned another Company Application for further amendment of the Company Petition questioning the conduct at the impugned EOGM?
F. Whether the CLB could not have permitted the 1st Respondent to implement the resolution purportedly passed at the impugned EOGM when the conduct of the impugned EOGM was under serious dispute and challenge and without even considering the prima facie case made out by the Appellants?
G. Whether the abrogation of the vested right of preemption from the Articles of Association itself amounts to oppression?
H. Whether the majority rights cannot be abused for amending the Articles of Association of a Company in a manner that is oppressive to the minority shareholders?
I. Whether the Appellants are entitled to challenge the conduct of the impugned EOGM as well as the rulings given by the Chairman on the ground that the same were patently illegal, mala fide and a part of the preconceived deliberate oppressive design?
J. Whether the CLB could not have permitted the 1st Respondent to implement the resolution deleting Article 57 on the ground that it was invalid when the challenge to the validity of the said Article was itself pending in the Hon'ble Supreme Court?
3. Some of the relevant facts which have bearing on various issues raised by the parties and which emerge from the pleadings and documents filed by the parties are as under.
This appeal filed under Section 10F of the Companies Act, 1956 is directed against an order dated 13th August 2012 passed by the Company Law Board, Mumbai (for short CLB) allowing Company Application No.85 of 2012 which was filed by the first respondent in Company Petition No.87 of 2010. By the said order, the CLB has allowed Company Application No.85 of 2012 by which the first respondent had applied for vacating and/or modifying ad interim order dated 21st May 2012 passed by the CLB. By order dated 21st May 2012 in C.A.No.73 of 2012 filed by the appellants, the CLB allowed the first respondent company to proceed with the Extra Ordinary General Body Meeting (EOGM) on 22nd May 2012 and ordered that the resolutions passed if any, in the EOGM on 22nd May 2012 shall be kept in abeyance till further orders. The said C.A. (73/12) was filed by the appellants in Company Petition No.87 of 2010 under Sections 397, 398 read with 402 of the Companies Act, 1956 alleging oppression and mismanagement in respondent No.1 company by respondent No.2. In the said Company Petition (87/10) filed by the appellants, the appellants sought injunction against holding of EOGM then proposed to be held on 12th November 2010 to consider resolutions to delete certain Articles including Art.57 which provides for a right for preemption to the shareholders of the first respondent company.
4. Jer Rutton Kavasmaneck @ Jer Jawahar Thadani (herei
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