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2023 Supreme(Online)(NCLT) 895
KOCHI IN CP/13/KOB/2022 (Under Section 242(4) of the Companies Act, 2013 read with Rule 11 of the NCLT Rules, 2016)
In the matter of:
1. Mr. K.C.Thomas, Residing at Kanichai, Palayamparambu, Vynthala, Kallur, Vadakkummuri, Thrissur, Kerala- 680 741;
2. Fijo Jose, 171, Nehru Nagar, Kuriachira, Thrissur, Kerala- 680 006;
3. Mathew M S, Mannummel House, Kandasaankadavu P.O, Kanjani, Karamuck, Thrissur, Kerala – 680 613;
4. France P J, Padinjarethala House, Puthenpeedika, Thrissur, Kerala — 680 642;
5. Mr. Tony Joseph, Kanjiraparambil House, Kunnath, Kuriachira, Thrissur, Kerala-680006;
6. Jose C George, 201, Unity Nagar, Kuriachira, Thrissur, Kerala - 680 006;
7. Suma Fijo,171, Nehru Nagar, Kuriachira, Thrissur, Kerala - 680 006;
8. Mary Joffee, 193, Nehru Nagar, Kuriachira, Thrissur, Kerala - 680 006;
9. Joffee Jose, 193, Nehru Nagar, Kuriachira, Thrissur, Kerala - 680 006;
10. Jacob Thomas Kanichai, Kanichai House, Vynthala, Palayamparambu, Kallur, Vadakkummuri, Thrissur, Kerala - 680 741;
11. Sebastian Thomas Kanichai, Kanichai House, Vynthala, Palayamparambu, Kallur, Vadakkummuri, Thrissur, Kerala - 680 741;
CP/13/KOB/2022 In re: Mr. K.C. Thomas Vs. M/s Casino Hotels Limited
12. Shali Thomas, Kanichai House, Vynthala, Palayamparambu, Kallur, Vadakkummuri, Thrissur, Kerala - 680 741;
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13. Jancy Jose, Kanichai House, Vynthala, Palayamparambu, Kallur, Vadakkummuri, Thrissur, Kerala - 680 741;
14. Jacob Jose, Kanichai House, Vynthala, Palayamparambu, Kallur, Vadakkummuri, Thrissur, Kerala - 680 741;
15. Joseph Jose, Kanichai House, Vynthala, Palayamparambu, Kallur, Vadakkummuri, Thrissur, Kerala - 680 741;
16. Ammini K J, Kanichai House, Vynthala, Palayamparambu, Kallur, Vadakkummuri, Thrissur, Kerala - 680 741;
17. Antony John, Ambooken, Rose House, Near Ephraim Church, Poyya P O, Thrissur, Kerala - 680 733;
18. Latha Sankaranarayan, Velekkat House, Vadookara, Thrissur, Kerala - 680 007;
19. Nidheesh Narayanan, Velekkat House, Vadookara, Thrissur, Kerala - 680 007;
20. Rajesh Narayanan, Velekkat House, Vadookara, Thrissur, Kerala - 680 007;
21. 1) Latha 2) Rajesh 3) Nitheesh, Velekkat House, Vadookara, Thrissur, Kerala -
680 007;
22. Joseph France, Padinjarethala House, Puthenpeedika, Thrissur, Kerala - 680 642; 23. Milly Mathew, Chittilapilly House, House#195, Fathima Nagar, Thrissur, Kerala - 680 613;
24. Antony P David, Pellissery House, Kanippayyur, Kunnamkulam, Thrissur, Kerala- 680 503;
CP/13/KOB/2022 In re: Mr. K.C. Thomas Vs. M/s Casino Hotels Limited
25. Geetha Antony, Pellissery House, Kanippayyur, Kunnamkulam Thrissur, Kerala-
680 503;
26. Sabu Davis, Panachery House, 14, Nehru Nagar, Kuriachira, Thrissur, Kerala -
680 006;
27. Vavachan | Kodenkandath, Kodenkandath House, 9th Street Kizhakkumpattukara, Thrissur, Kerala- 680 005;
28. Joju Antony Manjila, Nirmala Gardens, P.D.Road, Lourdpuram, Thrissur, Kerala- 680 005;
29. Gilsy Joju Manjila, Manjila Bhavan, Nirmala Gardens, P.D.Road, Lourdpuram, Thrissur, Kerala- 680 005;
30. Anish Davis, Kattukaran House, 215, Nehru Nagar, East End Street, Thrissur, Kerala- 680 006;
31. Sigy Anish, Kattukaran House, 215, Nehru Nagar, East End Street, Thrissur, Kerala- 680 006;
32. Johnson P J, Pellissery House, Pradhitha Road, Providence Garden, Thrissur, Kerala - 680 006;
33. Kavitha Johnson, Pellissery House, Pradhitha Road, Anchery, Kuriachira, Thrissur, Kerala- 680 006;
34. Alphy Jose, Pudukaden House, Behind Devamatha Hospital, Koratty, Thrissur, Kerala- 680 308;
35. Jose P P, Pudukaden House, Behind Devamatha Hospital, Koratty, Thrissur, Kerala- 680 308;
CP/13/KOB/2022 In re: Mr. K.C. Thomas Vs. M/s Casino Hotels Limited
36. Joseph Alexander, Mappilachery Estate, Kailasanadu, Nedumkandam, Idukki, Kerala- 685 553;
37. Rosily Joseph, Mappilachery Estate, Kailasanadu, Nedumkandam, ldukki, Kerala-685 553;
38. Bindu Majo, 201, Unity Nagar, Kuriachira, Thrissur, Kerala- 680 006.
… Applicants -Versus-
1. M/s. Casino Hotels Limited, CIN: U55101KL1980PLC003184 Having its registered office at Casino Complex, T. B. Road, Trichur, Kerala - 680 021;
2. Jose Paul Chandy, Residing at Chandys House, Chandys Lane, Erinjery Angady, Thrissur, Kerala - 680 001;
3. Rema Jinadevan, Residing at Sreevalsam, Pazhayanadakavu, Thrissur, Kerala-
680 001;
4. E P K Balakrishnan, Residing at Krishnabhavan, Francis Road, Chembukkavu, Thrissur, Kerala- 680 020;
5. Varghese Kakku Anchery, Residing at Anchery House, Erinjery Angadi Thrissur, Kerala- 680 001;
6. Kesavan Namboothiri Kodakkattu Mana, Residing at Panchami, Kodakkattu Mana, Near Mundayur Siva Temple, Peramangalam P.O. Thrissur - 680 545;
7. Kodakkattu Kesavan Madhu, Residing at Panchami, Kodakkattu Mana, Near Mundayur Siva Temple, Peramangalam P.O. Thrissur- 680 545;
8. Jacob Anchery Varghese, Anchery House, Church Circle,Thrissur, Kerala- 680
001;
CP/13/KOB/2022 In re: Mr. K.C. Thomas Vs. M/s Casino Hotels Limited
9. Mr.Peppin Thomas, Mundassery House, 36/4327, Marath Lane, Thrissur, Kerala- 680 001;
10. Mr.Xavi Thekkath Devassy, S/o.Mr.Devassy Lazar Brahmakulam Thekkath, Oman- 1896. Email:- xavithekkath@psc-llc.com.
11. Mr. Ernezhath Balakrishnan Bipin, Residing at Krishna bhavan, Francis Road, Chembukkavu, Thrissur, Kerala- 680 020;
12. Mr.Nilayattingal Antony Lonappan, Nilayattingal House, Latin Church Road, Thrissur, Kerala- 680 001.
… Respondents In the matter of:
Mr. K.C. Thomas and Others, … Petitioners -Versus-
M/s Casino Hotels Limited and Others.
… Respondents Coram:
Shri. P. Mohan Raj : Member (Judicial)
Shri. Satya Ranjan Prasad : Member (Technical)
Parties/Counsel present (through video conference):
For the Applicants : M/s. KSR & Co. Company Secretaries LLP.
For the Respondent Nos. 1, 4 to 9 & 11 & 12 : M/s. Menon & Pai, Advocates.
For Respondent Nos. 3 & 10 : None appeared.
Order reserved on: 17.02.2023 Order pronounced on:26.04.2023 CP/13/KOB/2022 In re: Mr. K.C. Thomas Vs. M/s Casino Hotels Limited
For the Petitioner:K S RAVICHANDRAN
ORDER
1. This is an application filed under Section 242(4) of the Companies Act, 2013 read with Rule 11 of NCLT Rules, 2016 by the Petitioners in the main Company Petition CP/13/KOB/2022 seeking inter alia relief to appoint a senior company secretary in practice repute as a commissioner to take custody of all proxy forms, registers and records with a direction to him/her to verify all the forms, documents, registers and records with respect to the 41st AGM held on 27th May 2022 including but not limited to
(a) proof of service of notices;
(b) attendance registers;
(c) proxy forms received; revoked; rejected; cancelled;
(d) proxy registers; ballots; and direct the independent professional to submit a report thereon pointing out any invalidity, infirmity, fabrication; manipulation or any other defects with respect to each one of those records.
2. The facts as narrated in the application and explained by the Applicant are summarized hereunder:
i. The Applicants are Shareholders of the 1st Respondent Company, holding 1437 shares of Rs.5,000/- each aggregating to 23.01% of the total issued share capital of the Company. Applicants 1 to 4 and Respondents No.2 to 6 have been the directors of the Company with a proper balance between the directors representing shareholders providing and proving to be an equilibrium. It is only when acts of Respondents were grossly unfair, oppressive, fraudulent, unconscionable, and illegal, the Petitioners have raised objections and demanded bringing back an order to protect the interests of the shareholders. They further stated that Respondents No. 7 to 12 were added to the Board, two of them immediately after the fraudulent AGM 2020 held on 23rd December 2020, one of them just before the due date for AGM 2021 in September 2021, and two more of them just before the actual date of AGM 2021 held on 27th May 2022. By this act the Respondents have been working overnight in every aspect to perpetuate the material change they have brought about in order to ensure that the Board is at the disposal of Respondent No.2 and it consists of persons of his choice. While AGM 2020 is under challenge in the Company Petition CP/13/KOB/2022, the AGM 2021 was held on 27th May 2022 and it has come to the knowledge of the Applicants/Petitioners that even at this AGM 2021, there have been several material irregularities. The Petitioners No.1 to 3 along with others have also filed police complaints against the discrepancies and illegality in the conduct of the rescheduled 41st AGM dated 27th May 2022. Hence there is an urgent need to take custody of the entire records and registers pertaining to AGM 2021. The irregularities at the AGM 2021 perpetrated by the Respondents will bring about the extent to which they are inclined to going so as to perpetuate a Board of their choice. Even though there was a communication titled 864th Board Meeting to be held on 25.04.2022, no Board Meeting was held on that day. The said notice sent to the Respondents and Petitioners 1, 2 and 4 was contrary to the interim order of this Tribunal passed on 23.05.2022. Another Board Meeting notice was also issued to the shareholders on 16.08.2022 including Petitioner No. 4. It has clearly excluded Petitioners 1,2 and 3 who were styled as directors liable to retire by rotation at the AGM 2021 and who have offered themselves for re-appointment. This implies that the Respondents have treated the above persons as persons who are no longer directors. This notice was issued arbitrarily and in an illegal manner to the selected persons eliminating Petitioner Nos. 1,2 and 3. Thus the entire Board Process has been hijacked from the Petitioners’ side and the affairs of this Company have been successfully converted into their personal property and that too, without any compunction, unmindful of contempt, they have to suit their own agenda, interpreted the protective Order of this Tribunal passed on the 23rd May, 2022. Hence, it is necessary to constitute an Interim Board
