SRG Altis Healthcare Pvt. Ltd. & Ors vs Akash Bakshi & Ors.

O R D E R

“12.

However, this Tribunal is of the view that Clause 42 of the AoA states that “All general meetings other than annual general meeting shall be called extraordinary general meeting”. Thus, it is clear that AoA keeps an AGM out of the ambit of the definition of ‘General Meeting.” The text of Clause 43(iii) states that “A General Meeting of a Company may be called by giving not less than clear Seven days’ notice…”. Therefore, AGM is not falling within the term ‘General Meeting” under Clauses 42 r/w, 43(iii) of the AoA, and therefore, it can very well be inferred that three is no shorter period prescribed in the AoA for holding an Annual General Meeting. Hence, this Tribunal is of the further opinion that as has been alleged in the instant application conducting AGM on 23.11.2021 is not in compliance with the requirements specified under Section 101 of CA 2013, and is therefore, void ab initio.”

8.

To bring clarity on related provisions of the Companies Act, 2013, Sections 96 & 101 are extracted below with which Learned Tribunal (NCLT) may take to glance through and pass appropriate orders:

“96.

Annual general meeting.- (1) Every company other than a One Person Company shall in each year hold in addition to any other meetings, a general meeting as its annual general meeting and shall specify the meeting as such in the notices calling it, and not more than fifteen months shall elapse between the date of one annual general meeting of a company and that of the next:

Provided that in case of the first annual general meeting, it shall be held within a period of nine months from the date of closing of the first financial year of the company and in any other case, within a period of six months, from the date of closing of the financial year:

Provided further that if a company holds its first annual general meeting as aforesaid, it shall not be necessary for the company to hold any annual general meeting in the year of its incorporation:

Provided also that the Registrar may, for any special reason, extend the time within which any annual general meeting, other than the first annual general meeting, shall be held, by a period not exceeding three months.

(2)

Every annual general meeting shall be called during business hours, that is, between 9 a.m. and 6 p.m. on any day that is not a National Holiday and shall be held either at the registered office of the company or at some other place within the city, town or village in which the registered office of the company is situate:

Provided that annual general meeting of an unlisted company may be held at any place in India if consent is given in writing or by electronic mode by all the members in advance:

Provided that the Central Government may exempt any company from the provisions of this sub-section subject to such conditions as it may impose.

Explanation.—For the purposes of this sub-section, “National Holiday” means and includes a day declared as National Holiday by the Central Government.

101.

Notice of meeting.- (1) A general meeting of a company may be called by giving not less than clear twenty-one days’ notice either in writing or through electronic mode in such manner as may be prescribed:

Provided that a general meeting may be called after giving a shorter notice than that specified in this sub-section if consent, in writing or by electronic mode, is accorded thereto-

(i)

in the case of annual general meeting, by not less than ninety-five per cent. of the members entitled to vote thereat; and

(ii)

in the case of any other general meeting, by members of the company-

(a)

holding, if the company has a share capital, majority in number of members entitled to vote and who represent not less than ninety-five per cent. of such part of the paid-up share capital of the company as gives a right to vote at the meeting; or

(b)

having, if the company has no share capital, not less than ninety-five per cent. of the total voting power exercisable at that meeting:

Provided further that where any member of a company is entitled to vote only on some resolution or resolutions to be moved at a meeting and not on the others, those members shall be taken into account for the purposes of this sub-section in respect of the former resolution or resolutions and not in respect of the latter.

(2)

Every notice of a meeting shall specify the place, date, day and the hour of the meeting and shall contain a statement of the business to be transacted at such meeting.

(3)

The notice of every meeting of the company shall be given to—

(a)

every member of the company, legal representative of any deceased member or the assignee of an insolvent member;

(b)

the auditor or auditors of the company; and

(c)

every director of the company.

(4)

Any accidental omission to give notice to, or the non-receipt of such notice by, any member or other person who is entitled to such notice for any meeting shall not invalidate the proceedings of the meeting.”

9.

After hearing the parties and having gone through the record, we noticed that main petition is pending before the Tribunal for consideration. We dispose of the instant Appeal with a request to the National Company Law Tribunal, Cuttack Bench, Cuttack to expedite the matter and dispose of at an early date by considering all the issues raised by the parties including issue of Annual General Meeting. With these observations, the instant Appeal is disposed of.”