Neeraj Gupta And Ors vs A-1 Equipments Pvt. Ltd. And Ors

Ch. Mohd. Sharief Tariq, J

Ld. Counsel for the Applicants/Petitioners is present. Ld. Counsel for the Respondents is present.

Under consideration is an Application that came to be filed under Section 244 of the Companies Act, to seek waiver of the requirements for filing the Company Petition under Section 241 read with Section 242 of the Companies Act, 2013. The Applicant No.1 has alleged that he fell ill during the year 2010, as he was suffering from paralysis. The Applicant No.2 i.e. Mr. Naresh Gupta has been the Director and Shareholder in 1st Respondent Company viz; M/s. A-1 Equipments Private Limited and both the directors as per the record, had resigned from the directorship on 26th October, 2013. Mr. Neeraj Gupta, the 1st Applicant/Petitioner is contesting that his Signature is forged on the resignation Letter. However, the 2nd Applicant/Petitioner is not denying the resignation given from the directorship of 1st Respondent Company.

It is alleged in the accompanying Petition that the removal of Mr. Neeraj Gupta, the 1st Applicant/Petitioner is not in accordance with the law and the Shares are allotted to Respondents No. 2 & 3 with a view to reduce the Shareholding of the Applicants/Petitioners from 50% to 3.12% as reflect from the Notes on the Financial Statement for the year ending 31st March, 2014. It is submitted by the Ld. Counsel for the Applicants/ Petitioners that persons, namely, Mr. Navin Walia and Mr. Sandeep Aggarwal, both were appointed as additional directors on 05.11.2011 till the AGM dated 27th September, 2012. However, in the AGM, the Agenda for their permanent appointment was not placed. Therefore, R-2 & R-3 ceased to be director of the 1st Respondent Company from the date of the AGM. But, the Respondents 2 & 3 continued to be the directors of the 1st Respondent Company and used to do all the filings with their Signatures on behalf of the 1st Respondent Company.

It is contended by the Counsel for the Applicants/Petitioners that the 1st Applicant, now has been recovering from the illness and has inspected the record during the year 2016 & 2017 and found that Respondents 2 & 3 are continuing as the directors, without being appointed as per the procedure laid down. It is further alleged that the allotment was made in their favour on 31st March, 2014 due to which the shareholding of the Applicants/Petitioners has been reduced. It is noted that the Authorized Capital of the 1st Respondent Company was increased during the tenure [during the year 2011] of the Applicants/Petitioners, when they were directors in the 1st Respondent Company.

The Ld. Counsel for the Respondents submitted that there are two Applicants/Petitioners i.e., Mr. Neeraj Gupta and Mr. Naresh Gupta, both are brothers. Assuming that Mr. Neeraj did not resign, he ought to have fulfilled the responsibilities of the director of the 1st Respondent Company, but he did not do for more than three years, due to which he ceased to be the director of the 1st Respondent Company by operation of law.

The Ld. Counsel for the Respondents further submitted that the cause of action arose during the year 2013 and March, 2014 and the Application alongwith the accompanying Petition has been filed on 8th June, 2018, which is beyond the period of limitation and not maintainable. Consequently, the Application filed for seeking waiver of the requirements under Section 244 is also not maintainable. The Counsel for the Respondent has also referred the document, which is the Balance Sheet pertaining to M/ s. Janak Cranes Private Limited for the year ending 31st March, 2013 and 2014 being signed manually by the Applicants/Petitioners as Directors of the said Company which is not disputed by the Applicant/Petitioners. During the Course of hearing, they have admitted their signatures.

Thus, it is seen that the Applicant No.1/Petitioner has been performing the duties in other Company as director. Then, he cannot contend that being ill, he was not aware about the activities of the 1st Respondent Company. It has become clear that the Applicants/Petitioners have not engaged themselves in the affairs of the 1st Respondent Company, particularly, 1st Applicant/Petitioner was not performing the duties as Director in relation to 1st Respondent Company, then they have to suffer for their inactions. However, the 2nd Applicant/Petitioner has not taken any plea that he was not aware about the activities of 1st Respondent Company, whereas, every information of the 1st Respondent Company was in Public domain. Thus, the Applicants cannot take plea that they were not aware about continuation of Respondent No.2 & Respondent No.3 as directors of the 1st Respondent Company and allotment made in favour of the said Respondent No.2&3.

It has further been noted that due to the resignation of the 2nd Applicant/ Petitioner, there remained one director viz; Mr. Neeraj Gupta i.e., the 1st Applicant/Petitioner, he could have proceeded to appointed Addl. director of the 1st Respondent Company. But he has been performing duties being the director in M/s. Janak Cranes Private Limited, as is noted herein above.

In view of the facts & circumstances, as recorded hereinabove, and the submissions made by the Counsels for both sides, it becomes clear that the Application alongwith accompanying petition filed for seeking waiver of the requirements under Section 244 of the Companies Act, 2013, is time-barred. Therefore, the Application is dismissed along with Petition. There is no order as to costs.

The Order is dictated and pronounced in the Open Court in the presence of the Ld. Counsels for the parties.