In this order I am considering company Application No. 77 of 2013 filed by the Petitioner in company Petition No. 17 of 2013 seeking amendment of the company Petition and pressing further prayers required in the subsequent development in the matter during the pendency of the company petition. I am also considering Company Application No. 144 of 2013 filed by the R -1, 2 & 4 seeking vacation of the ad-interim order dated 13.06.2013.
2. Company Petition No. 17 of 2013 was mentioned by the petitioner on 24.01.2013 alleging oppression and mismanagement under Sections 397 and 39g of the companies Act. 1956 (hereinafter referred to as 'the Act') in the affairs of M/s. Ram Agri-Infra (India) Pvt. Ltd. (R-l Company) Regd at Ahmedabad and engaged in the business of real-estate. Prior to the mentioning of CP No. 17/2013 on 24.01.2013. in an earlier company petition No. 6/2013 another petitioner had alleged oppression and mismanagement in the affairs of the R-l company wherein on 17.01.2013 the company Law Board had passed the following order: Order dated I 7.01.2013.
CP No. 6 of 2013 mentioned. R-1,2, & 4 have not attended despite proper service. The Petitioner presented the petition pointing out the acts of illegal allotments of shares to dilute his shareholding, financial mismanagement and also illegal EGM being held today i.e. at 17.01.2013 at I I a.m. to remove the Petitioner from directorship. My attention was drawn to pages 195 & 196 of the petition recording the Petitioners representation under section 284(4) of the Act regarding his removal as director which reads as under;
" Representation under section 284(4) of the Companies Act, 1956 - My removal as director
I have received on 08th January 2013, two notices purportedly given by Mr. Amit Desai and Mr. Sanju Kashyap under the provisions of section 284(4) read with section 190 of the Companies Act, 1956. The notices are allegedly given to the Company to move a resolution to remove me from the directorship of the Company I have also received the notice of an Extra-ordinary General Meeting (EGM) dated 31-12-2012 convening the said meeting on I7-01-2013 at I1.00 AM at the registered office of the Company. I have also received a letter from the Company informing me to make a representation under section 284(4).
In response to the above notices and letter, I make the following submissions, which make it clear that there is gross violations of the provisions of Company Law and therefore any action taken by the Company and Mr. Amit Desai and Mr. Sanju Kashyap, Directors or any other director pursuant to said illegal and defective notices, shall be illegal and void ab initio.
I. The above referred notices received from Mr. Amit Desai and Mr. Sanju Kashyap are not dated, and there is no official stamp of the Company as to the date and time of its receipt by the Company.
2. The contents of the notices are same and the proposal to move the resolution regarding my removal is a conspiracy. Mr. Amif Desai and Mr. Sanju Kashyap are acting in concert in the whole matter.
3. Mr. Amit Desai is not a member of the Company and is only a director, and he cannot therefore give any such notice. The Notice is illegal and bad in law, as a director cannot give notice.
4. The letter from the Company informing me to make a representation under section 2844) also not dated.
5. The above referred notices are admittedly given under section 190 to move a res
Please Login To View The Full Judgment!
lution removing me as a director. There is no meeting of members which is convened on 17-01-2013, and therefore no such notice could have been given or considered.6. The Notice of EGM is not valid and legal, as no such meeting is authorised by the Board of Directors. The Notice is dated as 3l-12-2012, but I am a director of the Company and I know that no board meeting was held on 31-12-2012. The Notice is therefore illegal and any meeting or resolution passed thereat shall be illegal and invalid.7. There is no compliance of section 284(3) of the Companies Act.8. If the resolution as proposed is passed, it will be illegal, invalid and void ' ad initio.9. I have give one legal notice dated 18-12-2012 raising certain issues relating to violations of various laws and irregularities committed by the Company and therefore, the present proposal to remove me as a director is a revengeful exercise resorted to by Mr Amit Desai and Mr Sanju Kashyap. the directors of the Company. There is mala fide intention behind the proposal to remove me under the shelter of section 284.10. The member have not requisitioned any EGM as required under law, and no meeting is already convened, and therefore the whole matter is concocted and the present notices by the above named members, and the notice of EGIUI are illegal and cannot be proceeded with.1l. The shareholding of the members who have given notice is not mentioned in their respective notices.12. I have not done any harm to the Company so far, which warrants any 'action as contemplated. I am designated as CEO of the Company and know all the illegalities committed by the Company and therefore it is a systematic plot to remove me from directorship.13. I have not been paid my dues from the Company and. therefore also I am conveniently sought to be removed. "2. My attention was drawn to the averments in the Petition and annexures to the Petition to point out the illegalities in proposed removal in directorship in an EGM for which proper procedure has not been followed, there is no proof o/' membership of R-4 whose ledger folio at page Number 192 of CP is shown as being 003 without showing any distinctive numbers and number of shares alleged to be held by R-4, the Colum No. 3 at page 192 which requires type and numbers of equity shares to be shown is blank. My attention was drawn to page 63 of the Petition showing the Annual return to show that ledger .folio 003 belongs to the Petitioner. The notice for EGM is supposed to be given under section 169, provisions of section I 90 require a special notice and that too can be given after the EGM notice is issued. It was pointed out that there cannot be any quorum of EGM being held today as the only members are the petitioner, the R-2 and R-3. The petitioner and R-3 are present in the court the only member left in the meeting would be R-2, the meeting is being held without quorum.3. Further it was pointed out that the R-2 with the sole intention of increasing his shareholding had allotted 5,90,000/- Shares on 25.10.2011 without having held any board meeting in this regard and the shares were allotted at par without any purpose.4. R-3 who is present in the court has also affirmed the contentions of the petitioner pointing out to the alleged acts of oppression and mismanagement. It was pointed out that today in the Registry R-3 has also filed a petition under section 397/ 398 of the Act in the affairs of the RJ Company pointing out further acts of oppression and mismanagement in the Company M/s. Ram Agri-lnfra India Private Limited (RJ Company) having its registered office at Ground Floor, 23-24, Indraprastha, Near Drive-In, Ahmedabad-380 052 incorporated on 17th July, 2009 with the Registrar of Companies, Gujarat State under the provisions of the Companies Act, 1956 (hereinafter referred to as 'the Act') having authorised, issued, and paid-up share capital of Rs. 1,00,00,000/- (Rupees One Crores only) divided into Rs. 10,00,000 (Rupees Ten lakhs only) Equity shares of Rs. 10/- (Rupees Ten only) each. Paid-up capital of the R-I Company was Rs. 1,00,000/- divided in to Rs. 10,000/- equity shares.5. The Petitioner Shri. Manoj Tilakdhari Pandey a director and shareholder of the Company holding equity shares of 3000 of Rs. 10/- each aggregating Rs. 30,000/- in the share capital of the R-l Company sought the following Reliefs and ad-interim reliefs as under:" Reliefs:(i) This Hon'ble Bench may be pleased to declare that allotment of Rs. 5,90,000 equity shares allotted to R-2 is illegal and void ab initio and that two Form No. 2 filed in respect of the said two allotments made on 04-02-2011 and 25-10-2011 be removed by Registrar of Companies, Gujarat from his record and accordingly the R-l Company be directed to rectify the Register of Members of the Company.(ii) This Hon'ble Bench may be pleased remove R-4 as director of the 'Respondent Company.(iii) This Hon'ble Bench may be pleased to order audit of the Financial affairs of the Company by auditor to be appointed by this Hon' ble Bench.(iv) This Hon'ble Bench may be pleased to declare as illegal and invalid. the notice of the extra-ordinary general meeting dated 31-12-2012 through which the Petitioner is sought to be removed under section 284.(v) This Hon'ble Bench may be pleased to cancel the transfer of equity shares, if any, transferred from R-2 to R-4 and offer the said shares to Petitioner.(vi) This Hon'ble Bench may be pleased to pass such other/further order(s) as deemed fit in the interest of justice.Ad. interim order's pending the final decision on the Petition:(i) This Hon'ble Bench may be pleased to stay the Extra-ordinary General Meeting scheduled to be held on 17-01-2013 at 11.00 AM at the registered office to pass a resolution removing the Petitioner as director of the Company.(ii) This Hon'ble Bench may be pleased to suspend the voting rights anil other rights and privilege; on 5,90,000 equity shares illegally allotted to R-2.(iii) This Hon'ble Bench may be pleased to direct that status quo shall be maintained with respect to the appointment of the Petitioner as CEO, and that he shall be paid the remuneration as hitherto.(iv) This Hon'ble Bench may be pleased b appoint an independent secretarial auditor to verify and audit the secretarial records, statutory registers, minutes of meetings, etc. and submit his report to this Hon' ble Bench.(v) This Hon' ble Bench may be pleased to direct the Company to hold the meetings of the board of directors after giving proper notice and agenda papers at least 15 days in advance.(vi) This Hon' ble Bench may be pleased to pass such other/further order(s) as deemed fit in the interest of justice. "6. In view of the foregoing, the petitioner having succeeded in making out a prima facie case of oppression and mismanagement, the balance of convenience being in his favour, irreparable loss would be cawed if ad-interim reliefs are not given. To do substantial justice between the parties, in the facts and circumstances of this case the R-l Company is hereby directed to:I. Not to file the Resolution, if passed, removing the petitioner from Directorship, with the ROC till the disposal of the C.P. The petitioner shall continue to be on the Board of the Directors till further orders.II. No Board Meetings/AGM/ EOGM be held without the prior permission of the CLB.III. All acts of the Respondents shall be subject to the outcome of the CP.IV. The Respondents are hereby required to file Counter Affidavits to the CP within two weeks. Rejoinder within two weeks thereafter.7. CP No. 6 of 2013 to be argued on merits on 20.02.2013 at 2.30 p.m. Petitioner to serve this order on the respondents and file an affidavit for compliance.8. Order Dasti. "Sd/-Vimla YadavMemberPlace: MumbaiDate: 17.01.20133. Company Petition No. 17 of 2013 was mentioned on 24.012013, Parties were heard and in the facts and circumstances of this case the following order was passed on 24.01.2013:-" OrderPetition mentioned. R-1, R-2 and R-4 have not attended despite service. Petitioner made allegations regarding illegal allotments of shares on 4.2. 11 of 4 Lakh shares to R-2, Petitioner was director on that date along with R-2, Petitioner had no notice of the Board Meeting, there could not be any quorum on that date, there was no requirement of funds, my attention was drawn to the Financial Statements/Final A/c annexed to the Petition. It was pointed out that further allotment made on 25.10.11 as alleged in CP No. 6/2013 is also illegal. Further, my attention was drawn to the financial mis-managements as pointed out from paras 6.14 (at page 17 of the CP) to 6.40 (at pages 22 & 23 of the CP) causing prejudice to the stakeholders including the petitioner, R-1' financial position and public at large. It was pointed out that the Petitioner was shown to have ceased to be a director on submission of so-called resignation at page 88. resignation is undated, signatures are not of the Petitioner, Petitioner had no knowledge of his ceasing to be a director of the Company, till recently (three to four months back) he has been signatory to the Bank A/Cs. It was pointed out that the Respondents are avoiding being present in the CLB and are perhaps manufacturing, fabricating, manipulating records, petitioner is not allowed access to R-I's office and records, even SMS was received pre-cautioning not to enter. R-3 has not controverted Petitioner's contentions except relating to R-3's appointment as director and other allegations against R-3. Interim reliefs as at pages 25 & 26 were pressed. In the facts and circumstances of this case, the petitioner has succeeded in making out a prima facie case, the balance of convenience is in his favour, irreparable loss would be caused if interim prayers at least at A & G in para 9 at pages 25 & 26 are not granted.Prayers at A and G are granted as under:l. The R-I Company is hereby required to produce all Statutory Records, Registers, Share Transfer Register, Members Register, etc. including all Minutes of all Meetings (B.M/ AGM/ EOGM) w. e. f. the incorporation of the R-l till date. Attendance Register, Dispatch Register for Notices be also produced.2. Bank Statements of R-I's all a/cs. be produced (or the years 2010-11. 2011-12 and till date). The items at 1 & 2 above be produced by the RJ Company on 2lth January 2013 at 2.30 p.m. failing which the matter shall proceed ex-parte. Petitioner to serve this order on the Respondents who have not attended and file an affidavit for compliance.Order dasti. "Place . MumbaiDate. 24.01.2013Sd/-(Vimla Yada'')Member4. On 29.01.2013 on hearing the parties further order was passed as under: Order dated on 29.01.201" OrderIn the facts and circumstances of this case R-I company is hereby required to produce the requisite records as per order dated 24.1.13 before the ROC Ahmedabad for authentication on Monday 4'n February, 2013 at 10.30 a.m. Sharp at the ROC's Office. Other parties are at liberty to be present. The ROC Ahmedabad shall submit a report within two days enclosing a list of the documents along with page Nos authenticated. The R-l Company is further directed to submit an affidavit to the CLB Mumbai showing compliance and enclosing the remaining requisite documents within a week's time. Adjourned to 27.02.13 at 10.30 a.m. for ad-interim reliefs B.O. to send a copy of this order to the ROC. "5. Further orders passed in this matter on further hearings read as under: Order dated 27.02.2013"OrderRespondents to file reply to the CP within 10 days, rejoinder within two weeks thereafter. Adjourned to 2/4/2013 at 2.30 p.m. for arguments on the CP. Attendance Register and Dispatch Register which records the dispatch of Notices must be produced with a copy along with copies of the Record/ documents already authenticated by the ROC earlier."Order dated 02.04.2013"OrderCA No. 77 mentioned. Respondents to file Counter Affidavit to the CA within ten days. Adjourned to 14/5/2013 at 10.30 am. Order dated 27/02/2013 be complied with. "Order dated 14.05.2013"OrderRespondents are hereby required to annex a copy of the authenticated documents to their forwarding letter to the CLB reporting compliance of the order dated 29.1.2013 whereby certain records were authenticated by the ROC The compliance be done within one week with a copy to all the parties as well. Respondents are also required to comply with the CLB's orders dated 27/02/2013 and earlier order regarding completion of pleadings. R-3 is given last opportunity to give counter the CP within three weeks failing which their right to file counter shall stand closed. Rejoinder to counter be filed within three weeks of receipt of R-3's counter. CA No. 77 to be argued first on 3/07/2013 at 2.30 p.m.Order dasti. "Order dated 13.06.2013"OrderMatter mentioned regarding CA 77 already on record wherein the Respondents have failed to file their Counter Affidavit within ten days which time was over on 12th April 2013. The Respondents have not attended despite service. The Applicant has stated that the Respondents are in the process of creating third party rights (which has already been pointed out as an apprehension in the CA 77 also), however, the urgency of hearing CA 77 has been impressed upon. In the facts and circumstances of this case, CA 77/2013 shall be heard on 3rd July 2013 at 2.30 p.m. as already scheduled, the Respondents' email to the B.O. in this regard is considered and rejected. Applicant to serve this order on the Respondents. Respondents meanwhile are hereby restrained from taking any action including alienation of the assets of R-I Company. Adjourned to 3/7/2013 at 2.30 p.m. for arguments on CA 77/2013."Order dated 03.07 .2013"OrderHeard on CA 77 and 144. Orders are reserved. "6. CA 77 was mentioned by the Petitioner on 02.04.2013. Respondents were to reply within ten days i.e. on or before 12.04.2013. In CA 77 the Applicant had pointed out that the Bank statements of several banks of the R-l Company run into 1400 to 1500 pages but there is no detailed description of the transactions which presumably run into several crores of rupees, there are thousands of cash and cheque transactions, it is necessary to appoint an independent auditor to examine each and every transaction, and to submit his detailed report on the financial transactions as the figures of the balance sheet for 2010 under heading "Current Assets Loans & Advances" aggregating to Rs. 15,39.82,705 and the figures of the same year in balance sheet for 2010-11 under the heading "Current Assets Loans & Advances" aggregating to Rs. 6,19,50,322 are different, which suggest financial irregularities. In the same manner. the figures of the balance sheet for 2010 under heading "Current Liabilities & Provisions" aggregating to Rs. 15,11.34,127 and the figures of the same year in balance sheet for 2010-11 under the heading "Current Liabilities & Provisions" aggregating to Rs. 5.91.01.744 are different. In the balance sheet for the year 2010 under Schedule 10 - Advances for Purchase of Land - the advances are given to various parties for purchase of land parcels, which do not belong to the Respondent Company. For instance in case of "Misc. Farmer 07-08" an amount of Rs. 30,05,250 is shown. It mentioned that the Respondent Company was incorporated on 17-07- 2009, and by no stretch of imagination the advance could be given for the year 2007-08 by the Company which had come into existence in 2009-10. It stated that there is no land acquired by the Company in village Badarkha, Moriaya. Kasindra and Chharodi. It is observed from Schedule 7 -"Land & Staff Development A/c" that huge amount is paid for site development for land at Badarkha, which is not the land in the name of the Company. In CA 77 it has been alleged that the funds belonging to Respondent Company have been used for personal use. There are glaring financial irregularities, which require examination and verification by independent auditor. Further. it was stated thar the balance sheets for years 2010, and 2010-11 are nor signed by two directors as required under the provisions of the Companies Act [section 215(2)). There is no authentication of the annual balance sheet and profit & loss account, and such discrepant Form 23AC [balance sheet] and Form 23ACA [profit & loss account] are filed with ROC. It was apprehended that the R-l company being the owner of huge immovable properties situated at various places in Gujarat and in Maharashtra by pledging, mortgaging, or creating third party rights which will seriously prejudice the rights of the petitioner and other stake holders of the Company. It was further stated that the financial powers to operate several Bank accounts are presently vested in R-2 and R-4 who are likely to misuse the funds of the Company for their personal benefits and the money belonging to the Company, creditors and the other stakeholders including the petitioner will be pocketed by R-2 and R-4. In CA 77 the Applicant has sought appointment of an Independent Auditor to look into the siphoned off amounts and also the appointment of an Administrator having exclusive financial and administrative powers including sole authority to operate all the bank accounts of the Company as there is huge public interest involved in the Company, and immediate intervention by the CLB through appointment of Administrator only will plug the outflow of public funds. It was stated that the huge asset base in form of huge land banks worth Rs. 221 Crore is created out of public funds. The share capital brought in by the shareholders of the Company is meagre Rs. One Crore as against unsold land and immovable properties worth Rs. 221 crores. The asset base of Rs. 220crore is created out of investors' money. In view of the huge public interest involved, the appointment of Administrator is required to be urgently made. The matter was adjourned to 14.05.2013 at 10.30 a.m. On 14.05.2013 the Respondents were required to complete the pleadings and comply with CLB's orders dated 27.02.2013. On that date it was ordered that CA 77 is to be argued first on 03.07.2013 at 2.30 p.m.7. On 13.06.2013 the Petitioner/Applicant in CA 77 mentioned the matter after proper service on the Respondents. The Respondents chose not to be present. The Petitioner/Applicant stated that the Respondents had been directed to complete the pleadings in the matter including filing of reply to CA 77 within 10 days i.e. on or before 12.04.2013 but till 13.06.2013 the Respondents had defied all orders, and had chosen not to be present. It was stated that the R-l Company repeatedly did not allow the Petitioner any access to the R-l Company's registered office. Inspection was refused. It was stated that despite there being stay on holding the board meetings and AGM/ EOGM vide order of the CLB dated 17.01.2013 in CP No.06 of 2013 the Respondents have been holding the board meetings. The copies of the resolution passed by the board of directors of the Respondent Company held on 03.03.2013 were annexed showing defiance of the order of the CLB. Further, it was stated that the Company was in the process of mortgaging its prime property named "Mantra Resorts" which is worth Rs. 30 crores for raising Rs. 20 crores. The Company has total saleable land area of 2,20,093 sq. yards in Bagodara, Dist Ahmedabad. Out of that area. 12,099 sq. yards is already mortgaged to Central Bank of India, and 28,665 sq. yards of land is agreed to be sold by way of Agreement to Sale executed with one party. Against the total saleable land area of 2,20,093 sq. yards in Bagodara, Dist Ahmedabad, the Company has already sold 5.47,000 sq. yards. Most of the plot holders have been issued allotment letters and no sale deeds have been executed. Further, out of total 3341 plots of land sold, only about 200 sale deeds have been executed. Additionally, the Company had land at Vadodara and Mumbai. wherein at least 1900 plots-holders have invested money, but they have no title to the plot of lands. It was stated that all these suggests that gross irregularities are committed by the Company and there is larger scam than could be apprehended. The fate of more than 5000 investors/ owners of plot is hanging in uncertainty and their hard-earned money is likely to find its way into the pockets of the R-2 to 4. It was stated that between January 2013 and March 2013 at least Rs. 15 lakhs have been transferred from Company's various accounts to some Sushma Gupta's account with HDFC Bank. There is also an apprehension that huge amount has been transferred to other bank accounts of said Sushma Gupta and other persons. Further, it was pointed out that Rs. 3,49,75,000 have been paid to Resources & Asset Management (proprietor firm of R-2) in FY 2009-10. The R-l Company has not deposited with the Provident Fund deducted from the employees' salary from January to June 2013. Income Tax deducted at Source (TDS) amounting to appro. Rs. 44 lakhs has not been deposited with Government, Professional Tax deducted from employees' salary has not been deposited with Government for last one year, Service Tax was collected amounting to approximately Rs. 37 lakhs but not deposited with Government. Hence it was prayed that the Respondent Company should be directed to furnish the bank statements of all the bank accounts till date. It was argued that the R-2 have siphoned off huge amounts from the Company's account by Respondent no. 2 and 4 and gross prejudice would be caused to the Petitioner and more than 5000 investors/plot-holders if the prayers are not granted as prayed for in the CA.8. By order dated 13.06.2013 Respondents' prayer for adjournment was rejected considering the conduct of the Respondents which was reflected in delaying tactics and repeated non-compliance of the CLB's orders as already recorded in earlier orders of the CLB, even pleadings in the Company Petition had not been completed. Except R-1, no other Respondent had filed even Counter Affidavit to the Company Petition which was mentioned on24.01.2013" Counter Affidavits which were due to be filed on 9th March 2013 had not been filed. Further. it was noted that the Respondents' reply to CA 77 was due on 12.04.2013 when order dated 13.06.2013 was given. the Respondents had not bothered to reply to CA 77 . The Applicant was permitted to furnish by way of Additional Affidavit the statements made on 13.06.2013. CA 77 was ordered to be argued first on 03.07.2013 at 2.30 p.m. Meanwhile in the facts and circumstances of this matter the Respondents were restrained front taking any action including alienation of the assets of the R-I Company.9. CA77 and CA 144 were heard on 03.07.2013 and orders were reserved.10. ln CA 77 the Applicant/Petitioner has sought amendment to the CP making additional prayers required in the present matter. Amendment is stated to be necessitated in view of the Respondents' attempt to alienate the assets of the R-I Company. In the Petition allegations have been made regarding financial mismanagement and siphoning of funds as well. It is trite law that amendment of' pleadings is not available as a matter of right under all circumstances. Grant of relief will depend upon the factual background involved in each case. The provision of Order 6, Rule 17has been included in the CPC to do justice and nor to shut out justice merely on technicality of pleadings. The general rule is that a party is not allowed by amendment to set up a new case or a new cause of action, parties cannot be allowed to change completely the case made out in the pleadings by amending it subsequently and substitute an entirely different new case. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time. In short. the amendment seeking to introduce a totally new and inconsistent case cannot be allowed. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation. The court would take into consideration the questions of serious injustice or irreparable loss. Ordinarily, effect of an admission made in earlier pleadings shall not be permitted to be taken away. There is no bar on amending the petition or any pleading for that matter if amendments sought for are vital and important for proper, effective and just adjudication of the matter. It is settled by a catena of decisions of the apex court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the large interest of doing full and complete justice to the parties before the court. The apex court has held in the case of Rajesh Kumar Aggarwal v. K.K. Modi reported at AIR 2006 SC 1647 that all amendments which are necessary for determining the real question in controversy between the parties should be allowed provided the same do not cause injustice or prejudice to the other side. It was further held that at the time of allowing the amendment application, the merit of the amendment is not to be considered and a liberal approach is to be adopted. Order 6, Rule 17consists of two parts. Whereas the first part is discretionary and leaves it to the court to order amendment of pleadings, the second part is imperative and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. There is no straight-jacket formula for allowing or disallowing an amendment of the pleadings. If the granting of an amendment achieves the cause of justice and avoids further litigation, it should be allowed.11. On hearing the parties on CA 77 without going into the merits. it is noted that the amendment sought does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts of financial mismanagement and siphonning of funds already alleged in the Petition. The amendments sought are vital and important for proper, effective and just adjudication of the matter and in the large interest of doing full and complete justice to the parties. Amendments sought are necessary for determining the real question in controversy between the parties and should be allowed as the same do not cause injustice or prejudice to the other side. It is noted that even R-3 has prayed that "by way of an alternative measure to safeguard the interest of the company and its shareholders, one neutral person, who should be the person of repute with consent of all the parties or appointed by Hon'ble CLB, may be inducted into the board of directors of the Respondent Company with additional direction to investigate into the allegations made by the respective parties and submit the report to this Hon'ble CLB." The Applicant in CA 77 has also sought similar prayers giving additional approach to the allegations of oppression and mismanagement. ln view of the foregoing, the Company Application for amendment deserves to be allowed. However, since the procedure before the CLB is summary in nature. CLB being not bound to the provisions of the CPC, principles do apply, there is no necessity to file an amended company Petition, CA 77 is taken on record as amendment to the CP and Respondents' reply to CA is also taken on record to be relied upon by the Respondents in their reply arguments to the CP. Parties are given last opportunity to complete the pleadings on the CP. Replies within ten days, rejoinder within ten days thereafter. Company Petition is hereby fixed for final 11:00 a.m.12. The Applicant in CA 144 has interim order dated 13.06.2013. The day today functioning of Company is not impeded by the orders passed so far. It is again clarified that there is no stay or restraint in dealing with the stock-in-trade of the R-l Company. The R-l Company is restrained from alienating/creating third party rights in the assets of the R-I Company.13. It is settled law that ad-interim orders can be passed by the CLB at any stage depending upon the facts and circumstances of the case. It is also settled that the CLB has wide powers under Sections 402 and 403 of the Act. The scope of CLB's powers under Sections 402 and 403 has been recently explained by the Hon'ble Justice Dr. S. Muralidhar at para 26 in the case of Sanjay Gambhir v. D.D. Industries Ltd., (2013)2 Comp LJ 550 (Del) decided on 5th' February 2013, Para 26 reads as under:"26. As far as the power of the CLB to grant interim relief under Section 403 is concerned, it is power incidental to the power to order substantial reliefs as set out in Section 402. The width of the power is indicated by the words "any interim order which it thinks fit" and "such terms and conditions as appear to it to be just and equitable." The power is not limited by other provisions of the statute. section 402 in fact begins with the words "without prejudice to the generality of the powers of the Tribunal...". There is nothing to indicate that while exercising the powers under sections 402 or 403 of the Act the CLB has to necessarily account for the mandatory requirements of other provisions like Sections 169 or 186 of the Act. The language in fact appears to indicate to the contrary. It permits the CLB to pass orders as long as it is in the interests of the proper conduct of the affairs of the company and it is "just and equitable" to pass such order. Whether in fact the order is justified will of course depend on the facts of each case.14. And in the present case in view of repeated non compliance of CLB's orders by the Respondents, in view of practically there being only one validly appointed director (R-2) in the company (Petitioner is allegedly illegally shown to have resigned, R-3 is in the process of settling with R-2 and attempting to withdraw CP No. 6 of 2013, he has left no interest in the R-l Company) Minutes Books and Attendance sheets of Meetings are not produced on the ground that an 'employee has recently run away with the records (which petitioner states is a cock and bull story), in view of huge public interest at stake and in the interest of RJ company, in view of allegations of siphonning off of substantial amounts from the R-l company to R-2's concern, R-2 cannot be left alone to operate the Bank A/cs. and run the Board, hence order dated 13.06.2013 restraining the R-l company from taking any action including alienation of the assets of the R-l company is very much justified in the present matter and hence the Applicant's prayer in CA 144 for vacation of order dated 13.06.2013 is hereby rejected.15. CA77 and CA 144 stand disposed off in the above terms. No order as to cost.16. Adjourned to 5th August. 20 13 at 11 :00 a.m. for arguments on the Company Petition.
"2015 (129) SCL 55" == "2014 (63) RCR(Civil) 260,"