2019] 153
On
26. 5. 2005 ,
M/s.
Ashok
Mittal
&
Co.
issued
a
notice
to
Moral
for
repay
ment -
of
Rs. 4 , 91 , 58 , 762 /-
along
with
interest
claiming
that
the
same
was
due
since^
2000
from
running
account
for
share
trading
for
the
years
prior
to
2000.
It^
is
the
case
of
the
appellants
that
Mr.
Ashok
Mittal,
on
realizing
the
bright
prospects^
of
development
of
the
hotel,
because
of
its
location,
in
the
heart
of
capital^
of
India,
turned
dishonest
to
the
R.P.
Mittal
group
and
hatched
a
con
spiracy -
with
preference
shareholder
Hillcrest
to
control
the
management
of
HQRL.^
It
is
alleged
by
the
appellants
that,
in
contravention
of
the
provisions
of^
the
Companies
Act
and
terms
of
issue
of
preference
shares
as
prescribed
in
Articles^
of
Company
and
correspondence
exchanged,
Mr.
Ashok
Mittal
caused
Hillcrest^
to
issue
notice
under
section
169 ( 4 )
of
the
Act
for
EOGM
to
oust
the
duly^
elected
board
of
HQRL
and
to
appoint
their
nominee
on
the
ground
of
non-payment^
of
dividend
on
the
redeemable
preference
shares
as
provided
under^
section
87 ( 2 )(
b)
of
the
Companies
Act.
Section
87
of
the
Companies
Act
is^
extracted
below:
“Sec.
87- ( 1 )^ Voting rights
Subject
to
the
provisions
of
section
89
and
sub-section
( 2 )
of
section
92
:
(
a
)
every
member
of
a
company
limited
by
shares
and
holding
any
equity
share
capital^
therein
shall
have
a
right
to
vote,
in
respect
of
such
capital,
on
every
resolution^
placed
before
the
company
;
and(b) (^) ehiqs (^) uivtoyting right on a poll shall be in proportion to his share of the paid-up
capital of the company.
( 2 ) **
(a) Subject as aforesaid and save as provided in clause (b) of this sub-section,
every member of a company limited by shares and holding any preference share
capital therein shall, in respect of such capital, have a right to vote only on reso-
lutions placed before the company which directly affect the rights attached to his
preference
shares.
Explanation
:Any
resolution
for
winding
up
the
company
or
for
the
repayment
or
reduction^
of
its
share
capital
shall
be
deemed
directly
to
affect
the
rights
attached
to^
preference
shares
within
the
meaning
of
this
clause.
(
b
)
Subject
as
aforesaid,
every
member
of
a
company
limited
by
shares
and
holding
any^
preference
share
capital
therein
shall,
in
respect
of
such
capital,
be
entitled
to
vote^
on
every
resolution
placed
before
the
company
at
any
meeting,
if
the
dividend
due^
on such capital or any part of such dividend has remained unpaid:
(i) irni (^) otdhe case of cumulative preference shares, in respect of an aggregate pe-
mee^ toinf^ gn;ot^ less^ than^ two^ years^ preceding^ the^ date^ of^ commencement^ of^ the^
and
(ii) irni (^) otdhe case of non-cumulative preference shares, either in respect of a pe-
imm^ eofd^ inatoetl^ lyess^ than^ two^ years^ ending^ with^ the^ expiry^ of^ the^ financial^ year^
an^ preceding^ the^ commencement^ of^ the^ meeting^ or^ in^ respect^ of^
en^ daingggregate^ period^ of^ not^ less^ than^ three^ years^ comprised^ in^ the^ six^ years^
with the expiry of the financial year aforesaid.
Ram Parshotam Mittal
v.
Hotel Queen Road (P.) Ltd. (SC)