1. The present Company Application has been filed by invoking the provisions of section 167 of the Companies Act, 1956 seeking directions, inter alia, as prayed in para (viii) of the application. Shri Cibi Vishnu, learned counsel for the applicant, submitted that the company was incorporated on 6-5-1994 for the purpose of carrying on Ginning and Spinning of yarn. The learned counsel submitted that the company did not commence its business operation from the date of its inception because of difference of opinion. The respondents 2 and 3 are relatives and were carrying on other businesses jointly. In view of the differences, among the petitioner and the second and third respondents, resulted in stalemate of the affairs of the company. It is further submitted that the Registrar of companies had issued notices dated 28-6-2008 asking to show cause within 7 days why prosecution should not be initiated due to default in filing the annual returns and audited accounts for the period ended 31-3-2006 and 31-3-2007? The applicant on numerous occasions requested the respondents 2 and 3 to attend the board meeting wherein they could fix a date for convening the AGM and adopt the balance sheets, profit and loss accounts, and consequentially filed annual returns and the relevant forms with the Registrar of Companies. But the respondents 2 and 3 did not co-operate and did not attend the board meetings. Due to non-co-operation of the said respondents, the AGMs could not be convened and eventually the petitioner in his capacity as MD of the respondent No. 1-company was prosecuted for non-filing of balance sheets, profit and loss accounts, and annual returns. The applicant had appeared before the concerned Economic Offences Court and the learned Additional Chief Metropolitan Magistrate EO-II, vide his order dated 20-4-2009 imposed a penalty on the applicant as well as the company and also directed to file the balance sheets, profit and loss accounts and annual returns within a period of 60 days from the date of passing of the order.

2. The learned counsel submitted that the applicant had sent notices dated 12-5-2009 calling for a board meeting of the first respondent-company on 24-5-2009 at the registered office of the Company. The respondents 2 and 3 received the notices but did not attend the board meeting proposed to be held on 24-5-2009. The respondents 2 and 3 vide their letters dated 21-5-2009, stated that they are no longer directors of the company. The applicant could not transact any business due to lack of quorum and the board meeting stood adjourned sine die.

3. Due to the recalcitrant behaviour of the respondents 2 and 3, the first respondent-company could not convene the AGM for the year ended 31-3-2005, 31-3-2006, 31-3-2007 and 31-3-2008. He submitted that the applicant being a shareholder and director is adversely prejudice by the first respondent company not having convened the above AGMs and prays this Bench to direct the first respondent to convene the AGMs for the years 31-3-2005, 31-3-2006, 31-3-2007 and 31-3-2008 and also prayed to fix the date, time, venue, chairman and quorum for the above said AGMs.

4. Shri C. Dilip Kumar, learned counsel, for the respondents 2 and 3, filed his detailed counter and submitted that he took a preliminary objection stating that the share capital of the company is below 5 lakhs. As per section 3(5) of the Companies Act, 1956, a public company which fails to enhance its paid-up capital in the manner specified in sub-section (4) shall be deemed to be a defunct company within the meaning of section 560 of the Act and its name shall be struck off from the register by the Registrar. The learned counsel further submitted that as per the provisions of section 260 of the Act, the existing directors, i.e., the applicant herein could appoint additional directors to conduct a valid board meeting and to call for an AGM. In support of his contention, he relied upon decision in the matter of Zimmers Ltd. v