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2018 Supreme(Mad) 4500
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.MANIKUMAR, SUBRAMONIUM PRASAD, JJ.
The Church of South India Trust Association rep. By Rev.Dr.Daniel R.Sadananda Honorary Secretary and Mr.C.Robert Bruce - Appellant
Versus
John Dorai - Respondent
Civil Revision Petition No.3739 of 2016
Decided on : 20-12-2018
Advocate Appeared:
For the Petitioner: Mr.V.Prakash Senior Counsel for M/s. Adrian D.Rozario
For the Respondents: Mr.A.L.Somayaji Senior Counsel for Mr.G.Vasudevan, Mr.Mr.V.Prakash for M/s. Adrian D.Rozario
Headnote:
Companies Act, 1956 - Section 25 - Limitation Act, 1963 - Section 14 - Approached the National Company Law Tribunal - Challenging maintainability of petition filed – Condo nation of delay – Bank - Revision petitioner, on receipt of notice from National Company Law Tribunal, filed an application challenging the maintainability of petition filed for oppression and mismanagement - According to revision petitioner, in a case of a Company not having share capital, a petition under Section 241 of Companies Act for oppression and mis-management is maintainable only when not less than 1/5th of total number of members of Company present such an application to Tribunal. According to them, even one of the petitioners is not a member and therefore application is not maintainable – Held, Judgment in dealt with case wherein orders, under Section 248 (5) of Companies Act were passed by Registrar of Companies removing name of Company from the register, without passing an order under Section 248 (6) of the Act. That was a case wherein it was brought to notice of this Court that Registrar of Companies struck off the names of the Companies, without passing any order, under Section 248 (6) of the Act - This practice was sought to be rectified by exercising powers under Article 227 of Constitution of India. Such is not the scenario here. Efficacious alternate remedy is available to petitioner, by challenging order before National Company Law Tribunal. Petitioner if so advised can approach before the National Company Law Appellate Tribunal, by filing an appropriate appeal - It is needless to say that National Company Law Appellate Tribunal may entertain an appeal even after expiry of said period applying Section 14 of Limitation Act, 1963 - In case on hand, on premise that there is an order striking off company from the register of companies petitioner has filed an application under Section 252(3) of Companies Act, 2013, and orders have been passed in which is impugned in this revision petition - But this Court on perusal of files, has found that there is no order under Section 246(6) of the Act, at all. By inadvertence petitioner company, was of view that there was an order under Section 248(6), of Companies Act, 2013, and proceeded further whether this Court is denuded of power under Article 227 of Constitution of India, to ignore fundamental error committed by Registrar of Companies, and direct petitioner to avail alternate remedy under Section 252(3) of Companies Act, 2013, which admittedly, not availed by petitioner, on premise that there was an order under Section 248(6) of Companies Act – Petition dismissed
ORDER :
Subramonium Prasad, J
Instant revision petition is directed against an order, dated 18/11/2016, passed by the National Company Law Tribunal, Chennai, in C.A.No.12 of 2016 in C.P.No.2 of 2016.
2. Facts in brief are as follows:-
(i) The revision petitioner is a Company incorporated under Section 25 of the Companies Act, 1956. The Company was primarily incorporated to aid, and further the work of the Church of South India in those parts of India where the Church of South India may function and for that purpose to do and carry out or assist in doing or carrying out all such matters and things as are likely to promote the objects of such Church and in particular assist pecuniarily or otherwise all or any of the societies, hostels, Tribunaling houses, hospitals, dispensaries, industries, homes refugees and other charities now existing are to be started in future in connection with the Church.
(ii) Respondents herein approached the National Company Law Tribunal, by filing a petition, under Section 241 of the Companies Act, 2013, alleging several acts of operation and mis-management, on the part of the revision petitioner herein. In short, the allegations in brief are:-
(i). The Managing Committee is acting clandestinely, and is acting against the interest of the stakeholders.
(ii). Large number of financial frauds are happening in the Company.
(iii). Assets worth crores of rupees meant only for the poor beneficiaries or stakeholders are being swindled by the Managing Committee.
(iv). Offices of the Registrar of Companies and the Regional Director, Ministry of Corporate Affairs, has already found that there are serious financial irregularities and have recommended for the enquiry by the Serious Frauds Investigation Office.
(v). Unless protected now, the entire assets will be misused or encumbered by the present office bearers thereby causing irreparable damage to the stakeholders or beneficiaries.
(iii) The revision petitioner, on receipt of the notice from the National Company Law Tribunal, filed an application C.A.12 of 2016, challenging the maintainability of the petition filed for oppression and mismanagement. According to the revision petitioner, in a case of a Company not having share capital, a petition under Section 241 of the Companies Act for oppression and mis-management is maintainable only when not less than 1/5th of the total number of members of the Company present such an application to the Tribunal. According to them, even one of the petitioners (respondents herein) is not a member and therefore, the application is not maintainable.
(iv) According to the revision petitioner, neither the first respondent nor the other applicants who had given their consent authorising the petitioner No.1 to file the petition, under Section 241 of the Companies Act, are members of the petitioner Company and therefore, the requirements of Sections 244 of the Companies Act, are not satisfied.
(v) The National Company Law tribunal, by the impugned order, dismissed the application, challenging the maintainability, stating that under the circumstances, as discussed in the order, the Company Petition cannot be dismissed at the threshold because it requires a detailed enquiry into the matter complained of. The National Company Law Tribunal, in exercise of the powers conferred under proviso to Section 244 of the Companies Act, 2013, waived the requirements of Section 244 (1) (b) of the Companies Act, 2013, by treating the Company Petition as under Order 1 Rule 8 of the Civil Procedure Code, as a representative petition r/w. Section 241 of the Act, 2013, for the purpose of proceeding to enquire into the matter complained of. The National Company Law Tribunal, removed all the Directors and Managing Committee, including the Office bearers and appointed Hon’ble Mr.Justice C.T.Selvam, as the Chairman of the Company.
3. Material on record discloses that since the Hon’ble Mr.Justice C.T.Selvam, has not yet retired, some other retired Judge of the High Court
