The main legal point established in the judgment is the exclusive jurisdiction of the Company Law Board (CLB) to entertain applications under section 398 of the Companies Act, post the amendment in the Act.

JUDGMENT

Sujoy Paul, J. :-

In this company petition filed under section 284 read with section 2(11) of the Companies Act, the petitioners have prayed for a declaration that the impugned Board Meeting and the impugned resolutions passed at the meeting claimed by respondents No. 1 to 5 and 7 as non-existent, fictitious, illegal, void and are of no effect. It is further prayed to restrain respondents No. 2 to 5 from holding out as Directors of respondent No. 1-company and from interfering in any manner in the management and affairs of the company. A direction is prayed for against the respondent No. 6, the Registrar of Companies (ROC) to deregister the two forms 32 filed by respondent No. 7 and to restore the names of petitioners as Directors oh the MCA Portal.

2. However, at the threshold, the respondent No. 1 entered appearance on a caveat and took a primary objection, regarding maintainability of this matter. I.A. No. 1318/2013 is also filed questioning the maintainability and praying for dismissal of the petition.

3. Thus, parties are heard on this I.A.

4. The pivotal question for decision of this I.A. is whether in the facts and circumstances of the case and in view of relief prayed for, whether this petition can be entertained ?

5. Brief facts necessary for adjudication of this aspect are as under : -

The case of the petitioners is that they are Directors of the company M/s. Vishwa Organics Pvt. Ltd. as per the annual returns as on 30-9-2011. On the said date respondent No. 2 was neither a first Director nor a Director as on 30-9-2011 as per the annual returns filed before the ROC. Previously, a general meeting of respondent No. 1-company was held on 3rd September, 1998 and another company M/s Gwalior Polypipes Limited (GPL) had been given the power to control the composition of the Directors of respondent No. 1-company for a brief period of less than six months. This was done by insertion of sub-clauses (a) and (b) at the end of clause 39 of Article of Association (AOA) of respondent No. 1-Company. However, in another extraordinary general meeting of respondent No. 1 held on 22nd February, 1999, the AOA of the respondent No. 1 was again amended and aforesaid clauses 39 (a) and (b) so inserted on 3-9-1998 were deleted. Resultantly, the company Gwalior Polypipe Limited ceased to have any power to change or control the composition of the management of the respondent No. 1. Statutory Form No. 23 was filed by the company with the ROC on August 29, 2002. Resolutions and receipt thereof are filed as Annexure P-4.

As per the annual returns as on 30-9-2011, the petitioners constituted the Board of Directors but during the inspection of the company on MCA Portal, they noticed that respondent No. 7 Laxman Soni, on the instruction of respondent No. 2 Mr. Harish Sahu, has prepared and filed two Forms 32 on behalf of the respondent No. 1-company before the ROC for removing the names of petitioners from the Board of respondent No. 1-company w.e.f. 3-9-2012. In lieu thereof, he showed appointment of respondents No. 3, 4 and 5 as Directors of the company. It is stated that the aforesaid act of the respondents was with an intention to gain control over the management and affairs of the respondent No. 1-company. It is the case of the petitioner that no notices of the Board Meeting allegedly held on 3-9-2012 or the said resolution passed therein were given to the petitioners who were still Directors of the company. The petitioners are aggrieved with the action of respondent No. 6, wherein without verifying the correctness, truthfulness and genuineness of information filed on line by respondent No. 7, he removed the names of the petitioners from MCA Portal. Petitioners lodged the complaint, Annexure P-5, before respondent No. 6. The aforesaid action was challenged on the ground that removal of petitioners from the Office of Directors runs contrary to the provisions of section 284 of the Companies Act, 1956 (hereinafter called as the “Act”). Mandatory