MUMBAI BENCH, COURT-II

CONTEMPT PETITION NO.09 of 2023

IN

COMPANY APPLICATION NO. 79 OF

2021

IN

TCP No. 31/MB/2014

Under Section 425 of the Companies

Act, 2013

In the matter of

Mr. Suraj T. Nanda

(Authorised Representative of the

Petitioner Shareholder)

Flat/Unit No. 03, Manju, 286-A, Sher-

E-Punjab, Opp. Maratha Sahkari Co-

operative Bank, Near Tolani Naka,

Mahakali Road, Andheri (East),

Mumbai-400 093.

… Applicant/ Petitioner

V/s.

1. Allwyn Colour and Construction

Pvt Ltd.,

2. Kalicharan D. Makhijani

3. Malini K. Makhijani

All having their address at: Neelam Apartment, Flat No.1202, Mount Mary Road, Bandra West,

Mumbai-400 050.

4. H.R. Joshi,

M/s. H.R. Joshi & Co., Chartered Accountants, Shop No. 09, 01^st Floor, Hi-Life Mall, P.M. Road, Santacruz (West), Mumbai-

400 054.

5. Dinesh Rajgor, M/s. Dinesh Rajgor & Co., Chartered Accountants, Shop No. 02, Tiwari House, Prabhat Colony, Road No.01, Santacruz (East), Mumbai-400 055.

6. The Registrar of Companies, Maharashtra, Mumbai, having its address at: Everest Building, 100, Marine Lines, Mumbai-400 002.

Order delivered on 12.04.2024.

Coram:

Hon’ble Shri Kuldip Kumar Kareer, Member (Judicial)

Hon’ble Shri. Anil Raj Chellan, Member (Technical).

Appearance (through video conferencing):

For the Applicant : Mr. Anuj Anekar a/w Anuj Bhattad.

For the Respondent : Counsel Mr. Nausher Kohli.

ORDER

Per: Anil Raj Chellan, Member (Technical).

1. The present Petition has been filed under Section 425 of the Companies Act, 2013 (hereinafter as “the Act” for the sake of brevity) by “Mr. Suraj T. Nanda”, seeking to prosecute the Respondents No. 01 to 06 named hereinabove for their contempt of the Order passed by this Tribunal dated 16.04.2021 in Company Application No. 79/2021. 2. Case of the Applicant (in brief):

a. The Applicant is a shareholder of the Respondent No.01-

Company. In Company Application No. 79/2021, this Tribunal vide its Order dated 16.04.2021, had directed that the Company shall not hold any AGM/EOGM without serving proper notice to the shareholders and all other parties and will follow the procedures prescribed under the Companies Act.

b. It is the case of the Applicant that despite the aforesaid Order, the Respondents No. 02 and 03, being the Directors of Respondent No.01, held an AGM dated 30.11.2021 of the Respondent No.01-Company, without giving proper notice of AGM to its shareholders including the Applicant herein. Thus, the Applicants allege that the Respondent Nos. 02 and 03 have totally disregarded the Order dated 16.04.2021, thereby committing the contempt of this court. Hence this application/petition against the Respondents No. 02 and 03 u/s 425 of the Companies Act, 2013.

3. Reply filed on behalf of Respondent Nos. 02 and 03: An Affidavit-in-reply dated 21^st June, 2022 has been placed on record by and on behalf of the Respondents No. 02 and 03 contesting the above-captioned contempt petition on the following grounds:

a. Order dated 16.04.2021, which is alleged to be in contempt by the Respondent Nos. 02 and 03, was passed ex-parte when neither the respondents nor their advocates were present. Respondent further submits that it is only subsequently sometime in August-September of the year 2021 that the Respondents became aware that an ex-parte order was passed and this Tribunal had directed meetings to be held only after issuing notice to the other shareholders. Therefore, the respondents were not aware of the said Order at the relevant point in time and thus, there is no question of any wilful disobedience to the order of the court resulting in contempt.

b. The Respondent states that the AGM held on 30.11.2021 was held only for the limited purpose of compliance with the provisions of the Companies Act, 2013 and ensure that financial statements of Respondent No.01 are filed. Therefore, the Respondent states that the Petitioner has failed to show the prejudice, if any, occasioned by non-service of such notice.

c. The present application is misconceived and is nothing but an attempt to delay the hearing of th