TORRENT POWER LTD. Vs. SURESHCHANDRA V. PAREKH

JUDGEMENT

(1.) IN this order I am considering C.P. No. 71/284/2012 filed by Torrent Power Ltd., against the respondents praying that (a) the petitioner -company be exempted from publication, circulation or reading out at the forthcoming general meeting, the said notice issued by the respondents, as the same seeks to abuse the process of law to secure needless publicity for defamatory matter and that direction be passed permanently restraining the respondents from, sending notices under section 284 of the Act to the petitioner -company raising the same issues; (b) direct the respondents and his/her family members not to indulge in misuse and abuse of the process of law, in future by serving notice under section 284 of the Act, for removal of Mr. Keki M. Mistry, director of the company on the same issue; (c) grant such other reliefs as it may deem proper in the matter; and (d) cost to the petitioner be allowed. C.A. No. 82 of 2012 was mentioned to amend the company petition to incorporate pleadings and prayers to attract the provisions of section 188 of the Act. The respondents' objections were heard and rejected on the ground that the objections are not tenable in law and in the facts of this case, the applicant has rightly attracted the provisions of section 188 of the Act which are applicable in this matter and even if the applicant had failed to attract the correct provisions, the petition is to be considered and adjudicated upon applying the correct provisions of the Act. Hence, C.A. No. 82 of 2012 stands allowed and C.P. No. 71/284/2012 stands amended to that effect incorporating the pleadings and prayers in C.A. No. 82 of 2012 into C.P. No. 71/284/2012.

(2.) THE petitioner's case is that the respondents, have vide their letter dated January 1, 2012, sent a notice purportedly being a special notice within the meaning of section 190 of the Act wherein the respondents have expressed their intention to move, immediately or at the next annual general meeting of the petitioner -company the resolution as ordinary resolution for removal of Mr. Keki M. Mistry, director of the petitioner -company, under the provisions of section 284 of the Act on the alleged/fictitious ground that he is involved in wrong, illegal criminal cases filed at Mumbai against the respondents. It is pointed out that the respondents are holding 76 equity shares of Rs. 10 each representing 0.00001 per cent. of its total issued and paid -up share capital of the petitioner -company, which shareholding is "insignificant holding" and is pertinently below the statutory and numerical requirements of section 188 of the Act for any shareholder(s) to move any such resolution at any annual general meeting. It was argued that under section 188(5) of the Act the company in this matter is not bound to publish and circulate the proposed resolution of the requisitionists. It was pointed out that the respondents have, in the notice stated that the Housing Development Corporation Ltd. (HDFC) made allotment of 10 equity shares of Rs. 100 each under Folio No. N 41567 in the public issue in the year 1991. At the request of the respondents, HDFC split the said certificate of 10 equity shares into 10 certificates of 1 equity share each. The respondents have claimed that they made hand delivery of 8 equity share certificates of the 1 equity share each and 8 transfer deeds which was acknowledged by HDFC on October 8, 1992. Based on the above documents, the HDFC transferred the aforesaid 8 equity share certificates representing 8 equity shares as per the name of buyers in the transfer deeds and issued separate Folio Nos. 51109 to 51116. Subsequently, the HDFC also sent its annual reports for the above buyers under referred folios for the financial year 1992 -93. The respondents have further claimed that the HDFC without any intimation, approval or written communication, unilaterally changed Folio Nos. 51111 to 51116 as Folio No. 51110. The respondents have also alleged that HDFC made corrections subsequently in the register of members of HDFC without any approval of the Registrar of Companies and/or the Company Law Board as envisaged under the provisions of the Act and has thus committed criminal offence. In the year 1994, HDFC promoted HDFC Bank Ltd. (hereinafter referred to as "HDFC Bank") and offered equity shares of HDFC Bank to the equity shareholders of HDFC on the basis of their holding in HDFC as on June 20, 1994. The respondents alleged that in view of the unilateral decision of HDFC of changing the folios, the respondents were deprived of 700 equity shares of HDFC Bank. The respondents have also alleged that HDFC Bank was required to make allotment of Rs. 30.92 crores shares to the members of HDFC. Instead, they allotted equity shares of Rs. 1.55 crores in favour of HDFC thereby depriving the rights of members of HDFC Ltd., and giving undue advantage/benefit to the promoter of the HDFC Bank, viz., HDFC Ltd., at the cost of the minority shareholders. The respondents have also levied various allegations against HDFC, HDFC Bank and its directors in the said notice.

(3.) IT was pointed out by counsel for the petitioner that the notice is issued just because Mr. Keki M. Mistry is an independent director of the company who also happens to be the vice chairman and managing director of HDFC with whom the respondents have long history of litigations. The petitioner -company is engaged in the business of generation, transmission and distribution of power, which is very vital for the infrastructural growth. The publication of such notice shall adversely affect the reputation of the company with its suppliers and clients, without the company being at any fault whatsoever.