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Judgment
JUSTICE YOGESH KHANNA, MEMBER (JUDICIAL)
This is an appeal against an impugned order dated 13.05.2024 passed by the Ld. National Company Law Tribunal, Ahmedabad in CP/07(AHM)2023 and Com.App/2(AHM)2023 whereby the company petition filed by the appellant was dismissed on grounds of maintainability and delay.
Vide the impugned order dated 13.05.2024 the Ld. Tribunal held the petition filed by the appellant was not maintainable per Section 244(b) of the Companies Act, 2013. As per Section 244(b) of the Companies Act, 2013, in case of a Company not having share capital, then the members not less than 1/5th of the total number of members of Company shall have the right to apply under Section 241 of the Companies Act, 2013. The Ld. Tribunal held on the date of filing of this petition the appellant was not a member of the company as had already been removed in the year 2012, which decision was never challenged by the appellant till filing of this petition in 2023, hence the Company Petition was held to be beyond limitation.
It is the argument of the learned counsel for the appellant the impugned order dated 13.05.2024 is liable to be set aside since the Ld. NCLT had miserably failed to appreciate the facts averred in his affidavit dated 12.12.2023, shown to us by the appellant wherein he deposed that at the time of filing of the petition there were 7 original and valid members who were the original founder members and their recognition have since been confirmed by Ld. CLB and uptill the Hon’ble Supreme Court vide order dated 30.07.2014.
It was further argued out of the 7 members alive, the appellant and two other namely Mr Ratin H Desai and Sh Dhansukhlal R Patel have filed consent affidavits, therefore, it cannot be said that the conditions under Section 244 are not met with.
The Ld. NCLT gave the following reasoning to dismiss the Company Petition in its impugned order viz;
19.Having heard the counsel for the parties and having perused the documents, the following summary is relevant in the matter :-
I. Petitioner was the original member of the club. II. The club had two factions, in the earlier round of litigation which started with CLB and ended with orders by Hon'ble Supreme Court, certain orders/judgments were passed by various judicial forums. A summary of same is captured in 18 above.
III. Sufficient to say that as per orders of CLB, a meeting under the chairmanship of ROC was held in the year 2009 where at the present management was duly elected and all challenges to the same failed.
IV. The new management changed the AOA of the company some time in 2012 removing the two-tier structure. Upon intervention of the Hon'ble Gujarat High Court, the old AOA was restored, however after some time the amended AOA were again modified and the two tier structure was restored. The petitioner has not challenged the said decision of the management of the company.
V. The Petitioner and Mr. Ratin Desai were removed as members way back in EGM held on 01.02.2012 and since then the petitioner is not a member of the company. It is to be noted that the petitioner has not challenged the said decision taken by the management of the company.
20.The petitioner is challenging for the first time the actions taken by the new management through this petition.
21.We would mention here that if the petitioner was aggrieved by any of the acts of the new management, he could have approached this Tribunal within reasonable period or The Hon'ble Gujarat High Court with a Contempt Petition/Application, which was never done.
22.In our view the present petition is not maintainable as per Section 244(b) of the Companies Act, 2013. As' per Section 244(b) of the Companies Act, 2013, in case of a Company not having share capital, the members not less than one-fifth of the total number of members of Company shall have the right to apply under Section 241 of the Act. As stated above, on the date of the filing of this petition the applicant is not member of the company and was already removed in the year 2012 and such decision has never been challenged by the petitioner and as such suffers from limitation.
23.In the result Company Appeal No.2(AHM)2023 is hereby allowed. As a consequence of which CP/7(AHM)2023 is hereby dismissed being not maintainable. No order as to cost.
The learned counsel for the appellant has also referred to an additional affidavit dated 06.02.2023 filed in CP 7/2023 wherein he referred to a list of members as on February, 2012 wherein the name of the appellant was included at S.No.12 of the Page No.18 of additional documents handed over to us across the table. Further he has also shown us a list of eligible live members as on 30.06.2013 wherein his name is at Sl.No.10 (this list is though not filed with this appeal). It is argued if the appellant was shown to be a member of the Club on 30.06.2013 then how it could be believed he was removed as a member way back on 1.2.2012 and if he was so removed, his name ought not to have been in the list of eligible members as on June 2013.
Heard.
At the outset this list of 30.06.2013, as alleged by the respondent, is fabricated. Nevertheless, the learned counsel for Respondent rather relies upon a notice dated 05.01.2012, issued for holding an EOGM of the Company on 1.2.2012, to consider expulsion of the appellant and of Mr Ritin H Desai from membership of the company w.e.f. February 1, 2012 in accordance with the provisions of the Companies Act, 1956 and in accordance with the Article of Association of the Company. The said EOGM was ultimately held on 1.2.2012 and the minutes of the EOGM of the members of the respondent 1 are also shown to us wherein it was resolved the appellant alongwith Mr. Ritin H Desai stood expelled from the membership of the company w.e.f. 1.2.2012 in accordance with the provisions of Companies Act, 1956 and also the Article of Association of the Company due to the conduct of the appellant, being to endanger the harmony and interest of the company. A public notice dated 1.2.2012 to this effect was also issued on 2.12.2012 in the newspaper “Times of India” as shown to us.
The appellant has not filed any record of the company wherein he was shown to be a member of the Respondent No.1 between 2012-2013 till the date he had filed Company Petition in the year 2023. Rather if one peruses the additional affidavit filed by the Respondent herein before the Ld. NCLT one would find at the time of the filing of the Company Petition there were 97 members of the Company, the list of which stood uploaded on the website of the ROC and appears to be the correct list. Thus considering this number of members on the date of filing the petition, the Ld. NCLT held the appellant did not meet the threshold for filing the Company Petition. .
Though the Ld counsel for the appellant also made a reference to an order passed on 21.07.2014 in SLP(C) No.8787 of 2013, but a bare perusal of the said order would show the reference of 36 original members was made in the context of 2009 elections and admittedly the appellant was a member during such period and hence cannot take benefit of the said order after the year 2012, when he was ultimately removed.
10.. Considering the fact the appellant was removed in the year 2012 from the list of members in EOGM dated 01.02.2012; such removal having been published in the newspaper; the appellant never took steps to challenge the decision of the EOGM dated 1.2.2012; he never filed any record wherein he could show he was a live member after 2012-13 till 2023, we find no infirmity in the impugned order. We also find no force in the arguments of the learned counsel for the appellant that during these years he always believed he was still a member of the Club. Such an argument cannot be believed by any stretch of imagination. The appeal is thus devoid of merit and is accordingly dismissed.
Pending applications, if any, are also disposed of.