NAVEEN BHATNAGAR Vs. SUDARSHAN CONSOLIDATED LTD.

JUDGEMENT

(1.) IN this case, the petition has been filed under section 614 of the Companies Act, 1956 ('the Act') by the petitioner with the prayer to direct the company to file Form 32 of the petitioner with effect from 17th September, 2010. Precisely speaking, the respondent -company was incorporated on 16th September, 2008 and is maintaining its registered office at Industrial Growth Centre ('ISG'), Phase -I, Samba, J&K -184121. Against the authorised share capital of Rs. 5 crore, the paid -up capital of the company amounted to Rs 4.62 crore. Initially, the company was incorporated by the subscribers to the memorandum, viz., Mr. Joy Prokash Banerjee, Mr. Neeraj Kumar Mehta, Ms. Bhumika Wadhwa, Mr. Lokesh Chandra Rohela, Mr. P. Vishnu, Mr. Naveen Bhatanagar and Mr. M.V. Sadanandan with an initial paid -up capital of Rs 5 lakh. In fact, the petitioner was working as an employee of the respondent -company and getting monthly salary for his employment and he was elevated to the position of director. However, as stated in the petition, without the permission, consent and knowledge of the petitioner, the respondent -company filed Form 32 with the Registrar or Companies ('RoC') for change in designation of the petitioner from merely a 'director' to "whole -time director" of the respondent -company with effect from 16th February, 2010. At this stage, the petitioner, i.e., Mr. Naveen Bhatnagar, resigned from the company vide his resignation letter dated 17th September, 2010 duly received and acknowledged by Shri S.M.Z. Naqvi, director of the company. Further, the company duly accepted the resignation letter of the petitioner vide its acceptance letter dated 21st September, 2010. However, as alleged in the petition, till date the company has not filed the requisite Form 32 with RoC, Jammu, as required under the provisions of the Act, in spite of several requests and reminders of the petitioner through letters dated 8th December 2010, 20th December 2010, 19th January, 2011 and 19th November, 2011 and thereby, the petitioner is still shown as a director on the MCA portal. It has also been mentioned in the petition that RoC (J&K) vide letter dated 31st March, 2011, directed the company to comply with section 303(2) of the Act. As the company failed to do so, vide letter dated 3rd June, 2011, RoC (J&K) served a notice under section 303(2) of the Act to the respondent -company.

(2.) THE petitioner has also filed Company Application No. 84 of 2013 in Company Petition No 1/614/12 staling therein that the respondent -company and its directors/officers drafted a fake resignation letter dated 28th November, 2012 of the petitioner and affixed scanned image of the petitioner's signature in conspiracy with a practising company secretary and illegally filed Form 32 in 'STP mode' for cessation of the directorship of the petitioner. However, the petitioner resigned from the company with effect from 17th September, 2010, which was duly acknowledged and accepted by the respondent -company, but to shift the unseen liabilities of the respondent -company on the petitioner, the respondent created the foul play and frivolously filed fake and forged resignation of the petitioner and filed Form 32 from current date, i.e., 28th November, 2012. Further, it has been stated that the petitioner lodged a criminal complaint dated 26th December, 2012 against the present directors and others for the forgery of documents and signature, etc., before the concerned police station and also, sent a letter dated 31st December, 2012 to Joint Secretary, Ministry of Corporate Affairs, and concerned RoC and requested them to direct the respondent -company to file correct Form 32 of the petitioner for cessation of his directorship with effect from 17th September, 2010.

(3.) IN the rejoinder, the petitioner advocate has submitted that the petitioner, i.e., Mr. Naveen Bhatnagar, ex -director of the respondent -company, resigned from the company vide his resignation letter dated 17th September, 2010 and the company duly accepted the resignation of the petitioner vide its acceptance letter dated 21st September, 2010, duly signed by Mr. S.M.Z. Naqvi, director at that time. After his resignation, the petitioner was neither a director of the company nor associated with the company directly or indirectly and, hence, the burden to follow the provisions contained in the articles of association of the company lies with the company and its directors/officers. The petitioner advocate has also cited the settled principle of "doctrine of indoor management" that an outsider cannot be considered to be aware of the fact that the company has duly complied with all the necessary provisions as contained in its articles of association. The petitioner advocate has also pointed out that the petitioner after receipt of the acceptance of his resignation from the company has served several letters dated 8th December, 2010, 20th December, 2010, 19th January, 2011 and 19th November, 2011, to the company for filing Form 32 with the RoC but has not received any replies thereto. The petitioner advocate has highlighted that alter service of present petition the respondent -company and its directors/officers drafted a fake resignation letter dated 28th November, 2012 of the petitioner and affixed scanned image of the petitioner's signature and filed Form 32 for cessation of the directorship of the petitioner.