Memorial For Petitioner

RGNUL SEMESTER MOOT COURT COMPETITION, 2021
RGNUL SEMESTER MOOT COURT

COMPETITION, 2021
BEFORE THE HON’BLE

NATIONAL COMPANY LAW TRIBUNAL, CHANDIGARH
COMPANY PETITION NO. ___________/2021
KAMLESH SHARMA …………………………………………………………. PETITIONER
Versus
KIRORI LAL & SONS LIMITED AND ORS. ……………………………………... RESPONDENTS
~ Memorial for the Petitioner ~

TABLE OF CONTENTS
TABLE OF CONTENTS I
LIST OF ABBREVIATIONS III
AUTHORITIES CITED IV
STATEMENT OF JURISDICTION VI
STATEMENT OF FACTS VII
STATEMENT OF ISSUES IX
SUMMARY OF ARGUEMENTS X
ARGUMENT ADVANCED 1
THAT THE PETITION FILED IN THE INSTANT CASE IS MAINTAINABLE 1

A. THE PETITIONER HAVE THE RIGHT TO APPLY U/S 241 OF THE COMPANIES ACT, 2013
1
B. THE TRIBUNAL HAS DISCRETION TO GRANT THE WAIVER IN INSTANT PETITION 1
THE ACT OF THE RESPONDENTS AMOUNTS TO OPPRESSION OR MISMANAGEMENT
UNDER SECTION 241 AND 242 OR ANY OTHER PROVISIONS OF COMPANIES ACT, 2013 2
A. THAT THE BOARD MEETING WAS CONVENED TO UNFAIRLY PREJUDICE THE
INTERESTS OF THE PETITIONER. 3
B. THAT THE REMOVAL OF THE PETITIONER FROM THE DIRECTORSHIP OF THE COMPANY
WAS OPPRESSIVE QUA THEIR INTEREST AS SHAREHOLDERS. 3
a) That the removal of the petitioner was oppressive and prejudicial to the minority
shareholders. 4
b) That the removal of the petitioner was in violation of their legitimate expectations
as shareholders. 5
THAT THE REMOVAL OF MR. KAMLESH SHARMA WITHOUT GIVING ANY
PRIOR NOTICE AND WITHOUT CONSTITUTION OF SELECTION COMMITTEE IS
AGAINST THE PROVISIONS OF COMPANIES ACT, 2013 5
A. THAT REMOVAL OF PETITIONER FROM DIRECTORSHIP WAS UNFAIR. 6
a) That the respondents did not give petitioner a reasonable opportunity to be heard.
6
MEMORIAL FOR THE PETITIONER
I
b) That The Condition Precedent To The Removal Has Not Been Complied With. 6
B. THAT THERE WERE NO SUFFICIENT GROUNDS FOR THE REMOVAL OF THE
APPELLANTS. 7
PRAYER/RELIEF IX
II
LIST OF ABBREVIATIONS
ABBREVIATIONS EXPANSION
§ Section
¶ Paragraph Number
AIR All India Reporter
Anr. Another
Art. Article
CLB Company Law Board
CC Company Cases
Hon’ble Honourable
Ltd. Limited
NCLT National Company Law Tribunal
NCLAT National Company Law Appellate Tribunal
Ors. Others
Pvt. Private
Pg. Page No.
Res. Resolution
SC Supreme Court
SCALE Supreme Court Almanac
SCC Supreme Court Cases
SCR Supreme Court Report
U/S Under Section
UOI Union of India
V. Versus
III
AUTHORITIES CITED
~SUPREME COURT CASES~
A.K. Kraipak v. U.O.I., AIR 1970 SC 150 ................................................................................ 6

Bhagwati Developers Pvt. Ltd. v. Peerless General Finance Investment Co. Ltd., AIR 2013
SC 1690 .................................................................................................................................. 1
Ebrahimi v. Westbourne Galleries Ltd, (1973) AC 360 ............................................................ 5
Kamal Kumar Dutta v. Ruby General Hospital Ltd., (2007) 7 SCC 613 .............................. 2, 6
Rajahmundry Electric Supply Corpn. Ltd. v. A. Nageswara Rao & Ors., AIR 1956 SC 213 ... 1
Ramabhadran Shivaraman v. M/s. Star Quarry and Aggregate Pvt. Ltd. & Ors., CP
No.31/2016 ............................................................................................................................. 3
S.P. Jain v. Kalinga Tubes Ltd., AIR 1965 SC 1535 ................................................................. 2
Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad, (2005) 11 SCC 314 .......................... 3, 4
Saraswati Devi Sharma v. M/s. Sharma Ayurved Pvt. Ltd. & Ors., (2011) SCC OnLine CLB
23 ............................................................................................................................................ 4
Scottish Co-op Wholesale Society Ltd. v. Meyer, (1959) AC 324............................................ 2
Uma Nath Pandey v. State of U.P., AIR 2009 SC 2375 ............................................................ 6
V.S. Krishnan v. Westfort Hi-tech Hospital Ltd. & Ors, (2008) 3 SCC 363............................. 4
~HIGH COURT CASES~
Bhankerpur Simbhaoli Beverages Pvt. Ltd. v. PR Pandya, (1996) 86 CompCas 842 (P&H) ... 6
~NCLAT CASES~
Cyrus Investments Pvt. Ltd. v. Tata Sons Ltd., (2017) 144 SCL 122 (NCLAT) ...................... 1
~NCLT CASES~
Anup Kumar Aggarwal v. Crystal Thermotech Ltd., 2017 Indlaw NCLAT 1 .......................... 2
Cyrus Investments Pvt. Ltd. v. Tata Sons Ltd., 2017 Indlaw NCLT 1755 ................................ 2
O.P. Achuthankutty & Anr. v. M/s Aswini Hospital Ltd. & Ors., (2018) 1 CompLJ 140
(NCLT) ................................................................................................................................... 3
Vikram Bakshi & Anr. v. Cannaught Plaza Restaurants Ltd. & Ors., 2016 Indlaw NCLT 1297
~CLB CASES~
IV
A company, Re, (1986) BCLC 376 ........................................................................................... 5

A.H. Ahmed Jaffer v. Ace Rubber and Allied Products Pvt. Ltd., (2005) 124 CompCas 309.. 3
Amrik Singh Hayer v. Hayer Estate Pvt. Ltd., (2008) 82 CLA 355 (CLB) .............................. 4
B.V. Thirumalal v. Best Vestures Trading P. Ltd. , (2004) 4 Comp LJ 519 (CLB) .................. 6
Homer District Consolidated Gold Mines, Re, (1888) 39 ChD 546 .......................................... 3
Manmohan Singh Koli v. Venture India Properties Pvt. Ltd., (2005) 123 CompCas 198
(CLB) ..................................................................................................................................... 5
Mohanraj v. Mylapore Hindu Permanent Fund, (1990) 1 CompLJ 73 (Mad) ........................... 6
Naresh Trehan v. Hymatic Agro Equipments Pvt. Ltd. (1999) 97 CompCas 561 (CLB) ......... 3
Rajendra Kumar Tekriwal v. Unique Construction P. Ltd., (2009) 147 CompCas 737 (CLB) 3
S.B.P. Anand Mohan v. Graphic Impressions Ltd., (2004) 120 CompCas 265 (CLB) ............. 4
Sanjay Paliwal v. Paliwal Hotels P. Ltd., (2008) 141 CompCas 270 (CLB)............................. 6
Sikkim Bank Ltd. v. R.S. Chowdhury, (2000) 102 CompCas 387 (Cal)................................... 3
Sunil Kumar Agarwal v. Shiv Sakthi Sugar Mills (India) Pvt. Ltd., (2009) 148 CompCas 457
(CLB) ..................................................................................................................................... 4
Tenneco Mauritius Ltd. v. Bangalore Union Services Ltd., (2004) 122 CompCas 199 (CLB) 3
V. Natarajan v. Nilesh Industrial Products Pvt. Ltd., (2002) 51 CLA 149 (CLB) .................... 5
Vijay Krishan Jaidka v. Jaidka Motor Co. Ltd., (1997) 1 CompLJ 268 (CLB) ........................ 4
~STATUTES AND RULES~
§115, the Act r.w. Rule 23, Companies (Management and Administration) Rules, 2014 ........ 6
Companies Act, 2013 [Act 18 of 2013] ..................................................................................... 1
~FOREIGN CASES~
Cooper v. Wandsworth Board of Works, (1863) 143 ER 414 ................................................... 6

O’Neill v. Phillips, (1999) 1 WLR 1092 ................................................................................... 4
Queens Kuries & Loans Pvt. Ltd. v. Sheena Jose, (1993) 76 Com Cases 821 (Ker) ................ 6
V
STATEMENT OF JURISDICTION
With reference to the circumstances that have been presented in the instant case, petitioner
have approached this Hon’ble National Company Law Tribunal, under section 2411 and 242
of the Companies Act, 2013 against the Directors of the Company and Trustees of the Trusts.
1
241. Application to Tribunal for relief in cases of oppression, etc.— (1) Any member of a company who
complains that—
(a) the affairs of the company have been or are being conducted in a manner prejudicial to public interest or in a
manner prejudicial or oppressive to him or any other member or members or in a manner prejudicial to the
interests of the company; or
(b) the material change, not being a change brought about by, or in the interests of, any creditors, including
debenture holders or any class of shareholders of the company, has taken place in the management or control of
the company, whether by an alteration in the Board of Directors, or manager, or in the ownership of the
company‘s shares, or if it has no share capital, in its membership, or in any other manner whatsoever, and that
by reason of such change, it is likely that the affairs of the company will be conducted in a manner prejudicial to
its interests or its members or any class of members,
may apply to the Tribunal, provided such member has a right to apply under section 244, for an order under this
Chapter.
VI
STATEMENT OF FACTS
1. Kirori Lal & Sons Limited (hereinafter referred to as the “respondent”) is a private limited
company, established by Mr. Rajneesh Kirorilal in 1956, is engaged in the business of
ironworks, steelworks, cotton mills and hydroelectric power plants. Mr. Rajneesh Kirorilal
has also established a trust in the name of the Kirori Lal & Sons (hereinafter referred to as
the “co-respondent”) for carrying on philanthropist activities like maintaining and
supporting schools and hospitals, amongst others.
2. Mr. Kamlesh Sharma was a member of the Board of Directors of the respondent company
(hereinafter referred to as the “petitioner”) and was appointed as its Executive Chairman
for a period of four years (2017-2021) by the selection committee of the respondent
company. He also represents a group of shareholders holding 18% shareholding
(hereinafter referred to as the “co-petitioner”) in the respondent company.
SHAREHOLDING SPLIT
3. The co-respondent holds 27% shareholding in the respondent. The combined shareholding
of the co-respondent and other Kirorilal Family trusts is 40%. The shareholders,
represented by the petitioner, own 18% equity shareholding in the respondent company.
DISPUTE
4. One year after being appointed as the Executive Chairman and being assured a free hand
in discharging his duties, the petitioner was removed from the directorship of the
respondent company on the ground of loss of confidence in his leadership, in a Board
meeting in the “Other items”.
5. Additionally, it was alleged that the petitioner was believed to have leaked confidential
information relating to the respondent company and its group companies, to outside third
parties.
6. The petitioner also openly criticised the Directors of the respondent company, its group
companies and trusts, which was detrimental to the smooth functioning of the respondent
company.
7. The petitioner and the group of shareholders represented by him have challenged the
removal of the petitioner from the position of Executive Chairman on the ground of the
VII
affairs of the respondent being conducted in an oppressive manner, prejudicial to public

interest and the interest of the Petitioners.
VIII
STATEMENT OF ISSUES
ISSUE-I
WHETHER THE PETITION FILED BY KAMLESH SHARMA IN THE INSTANT CASE IS
MAINTAINABLE?
ISSUE-II
THE ACT OF THE RESPONDENTS AMOUNTS TO OPPRESSION OR MISMANAGEMENT UNDER

SECTION 241 AND 242 OR ANY OTHER PROVISIONS OF COMPANIES ACT, 2013
ISSUE-III
THAT THE REMOVAL OF MR. KAMLESH SHARMA WITHOUT GIVING ANY PRIOR NOTICE AND
WITHOUT CONSTITUTION OF SELECTION COMMITTEE IS AGAINST THE PROVISIONS OF
COMPANIES ACT, 2013
IX
SUMMARY OF ARGUEMENTS
THAT THE PETITION FILED IN THE INSTANT CASE IS

MAINTAINABLE
It is submitted that the instant petition is maintainable as firstly, the petitioners have the right
to apply under Section 241 Of The Companies Act, 2013. Further, it is submitted that
petitioners satisfy the requirements of §244, given the fact that A group of shareholders,
represented by Mr. Kamlesh Sharma, who hold 18% equity in the shareholding of the company.
Secondly, the tribunal has the discretionary power to grant the waiver in the instant case.
THE ACT OF THE RESPONDENTS AMOUNTS TO OPPRESSION OR

MISMANAGEMENT UNDER SECTION 241 AND 242 OR ANY OTHER
PROVISIONS OF COMPANIES ACT, 2013
It is humbly submitted before the Tribunal that conduct of the Respondents has been unfairly
prejudicial and oppressive to the interests of the petitioner members and the companies,
thereby, falling squarely within the grounds of oppression mentioned u/s 241 of the 2013 Act
as are firstly, the Board meeting was convened to unfairly prejudice the interests of the
petitioner. Furthermore, the meeting was convened not to transact any urgent business, rather
to remove petitioner from the Directorship of the company.
Secondly, removal of the petitioner from the Directorships of the company was oppressive qua
their interest as the shareholders.
THAT THE REMOVAL OF MR. KAMLESH SHARMA WITHOUT GIVING

ANY PRIOR NOTICE AND WITHOUT CONSTITUTION OF SELECTION
COMMITTEE IS AGAINST THE PROVISIONS OF COMPANIES ACT, 2013
It is humbly submitted before the Hon’ble tribunal that the removal of Mr. Kamlesh Sharma
from the Directorship of the company was unfair and against the provisions of companies act
as firstly, petitioner was removed from the Directorship of company of in an arbitrary and
unfair manner.
secondly, there were no sufficient grounds for the removal of the petitioner. Further, serious
allegations have been levied against the petitioner for the first time and that too without
sufficient proof or inquiry.
X
ARGUMENT ADVANCED
THAT THE PETITION FILED IN THE INSTANT CASE IS MAINTAINABLE
¶ 1. It is humbly submitted to the Hon’ble Tribunal that the petition filed by the petitioner
in the instant case is maintainable because of the following reasons. Firstly, the
petitioners have the right to apply u/s 241 of the Companies Act, 2013 [A] and secondly,
the tribunal has discretion to grant the waiver in instant petition [B].
A. THE PETITIONER HAVE THE RIGHT TO APPLY U/S 241 OF THE COMPANIES ACT, 2013
¶ 2. The petitioners have the right to apply under section 241 of The Companies Act, 2013.
It is submitted that §241 of the Companies Act, 20132 [hereinafter, “the Act”]2, confers
the right on the shareholders to approach the Tribunal against acts of oppression and
mismanagement if they satisfy the criterion provided u/s 244.3
¶ 3. Further, it is submitted that petitioners satisfy the requirements of §244, given the fact
that a group of shareholders, represented by Mr. Kamlesh Sharma, who hold 18%
equity in the shareholding of the company,4 therefore, meeting the stipulation of §244.
Moreover, the relevant date to ascertain maintainability is the date on which petition is
filed.5 Thus, since all the petitioner were members of the Company on the date of filing
of the petition, the petition was held to be maintainable.
B. THE TRIBUNAL HAS DISCRETION TO GRANT THE WAIVER IN INSTANT PETITION
¶ 4. Admittedly, certain stipulations as to shareholding or number of member-petitioners

are to be met in order to maintain a petition u/s 241,6 which petitioner has fulfilled in
the instant case. However, the Act gives complete discretion to the Tribunal to waive
the requirements under § 244.
¶ 5. Further, the scope of the provision has been examined by this Tribunal in Cyrus
Investments Case7, wherein the National Company Law Appellate Tribunal Hon’ble
2
Companies Act, 2013 [Act 18 of 2013] (“the Act”).
3
S.P. Jain v. Kalinga Tubes Ltd., AIR 1965 SC 1535.
4
Factsheet, para 5.
5
Rajahmundry Electric Supply Corpn. Ltd. v. A. Nageswara Rao & Ors., AIR 1956 SC 213; Bhagwati Developers
Pvt. Ltd. v. Peerless General Finance Investment Co. Ltd., AIR 2013 SC 1690.
6
§244, the Act.
7
Cyrus Investments Pvt. Ltd. v. Tata Sons Ltd., (2017) 144 SCL 122 (NCLAT).
1
has held that the questions which are to be considered whilst deciding on grant of waiver
are-
• Whether the applicants are a member(s) of the company in question?
• Whether application under Section 241 pertains to ‘oppression and mismanagement’?
• Whether there is an exceptional circumstance made out to grant ‘waiver’?
¶ 6. Hon’ble Appellate Tribunal has also enumerated the various facts which cannot be
taken into account whilst deciding on an application for waiver, and these facts include,
inter alia, merits of the case, the conduct of the party, whether it is a case of arbitration,
or whether the petition is a directorial complaint.8
¶ 7. It is submitted that in the present case, it is undisputed that the petitioners were members
of the company and the petition, prima facie, pertains to oppression and
mismanagement. Furthermore, exceptional circumstances exist which justify the
waiver. These circumstances arise out of the fact that the Mr. Kamlesh Sharma, through
a Board meeting in the “Other items” and without giving any prior notice, was removed
from the Directorship of the company on the ground that “the Board of Directors have
lost Confidence in his leadership” and Mr. Piyush Kirorilal was appointed as Interim
Chairperson of the company. It is settled law that in such circumstances, the petition is
maintainable9 and waiver u/s 244 is warranted.10
THE ACT OF THE RESPONDENTS AMOUNTS TO OPPRESSION OR MISMANAGEMENT

UNDER SECTION 241 AND 242 OR ANY OTHER PROVISIONS OF COMPANIES ACT, 2013
¶ 8. It is humbly submitted before the Tribunal that conduct of the Respondents has been
unfairly prejudicial and oppressive to the interests of the petitioner members and the
companies, thereby, falling squarely within the grounds of oppression mentioned u/s
241 of the 2013 Act and satisfies the conditions prescribed by the Apex Court in S.P.
Jain Case11. It is submitted that in the instant case grounds establishing the veracity of
abovementioned claims12 are firstly, the Board meeting was convened to unfairly
prejudice the interests of the petitioner [A]; secondly, removal of the petitioner from
the Directorships of the company was oppressive qua their interest as the shareholders
[B].
8
Id.
9
Anup Kumar Aggarwal v. Crystal Thermotech Ltd., 2017 Indlaw NCLAT 1.
10
Cyrus Investments Pvt. Ltd. v. Tata Sons Ltd., 2017 Indlaw NCLT 1755.
11
S.P. Jain v. Kalinga Tubes Ltd., AIR 1965 SC 1535.
12
Scottish Co-op Wholesale Society Ltd. v. Meyer, (1959) AC 324.
2
A. THAT THE BOARD MEETING WAS CONVENED TO UNFAIRLY PREJUDICE THE

INTERESTS OF THE PETITIONER.
¶ 9. Humble reliance is placed on Kamal Kumar Dutta Case13, wherein the Apex Court held
that if the Board meeting had been convened without proper service of notice on
Kamlesh Sharma i.e. petitioner in the instant case by Directors of the Company and
Trustees of the Trusts then such Board meeting cannot be said to be valid.14 It evinces
the lack of probity and fair play on the part of the in charge.15
¶ 10. In the instant case, the meeting was called without giving any prior notice16 contrary to
the mandate of seven days.17 Furthermore, the meeting was convened not to transact
any urgent business, rather to remove petitioner from the Directorship of the
company.18
¶ 11. Admittedly, the agenda of the meeting was very serious and it was unfair to take a
decision of that kind in the absence of the petitioner, without giving prior notice.19
B. THAT THE REMOVAL OF THE PETITIONER FROM THE DIRECTORSHIP OF THE

COMPANY WAS OPPRESSIVE QUA THEIR INTEREST AS SHAREHOLDERS.
¶ 12. It is submitted that the removal of petitioner from the directorship of the company, is
unfair and oppressive qua their interest as shareholders of the companies. Moreover, it
is well-settled that directorial complaints can be entertained u/s 241 when the company
is in the nature of a family company, as is the case presently. 20 The veracity of the
claims is substantiated hereunder.
13
Kamal Kumar Dutta v. Ruby General Hospital Ltd., (2007) 7 SCC 613.
14
O.P. Achuthankutty & Anr. v. M/s Aswini Hospital Ltd. & Ors., (2018) 1 CompLJ 140 (NCLT); Ramabhadran
Shivaraman v. M/s. Star Quarry and Aggregate Pvt. Ltd. & Ors., CP No.31/2016.
15
Sikkim Bank Ltd. v. R.S. Chowdhury, (2000) 102 CompCas 387 (Cal).
16
Moot proposition
17
§173(3), the Act.
18
Homer District Consolidated Gold Mines, Re, (1888) 39 ChD 546.
19
Tenneco Mauritius Ltd. v. Bangalore Union Services Ltd., (2004) 122 CompCas 199 (CLB).
20
Rajendra Kumar Tekriwal v. Unique Construction P. Ltd., (2009) 147 CompCas 737 (CLB); Naresh Trehan v.
Hymatic Agro Equipments Pvt. Ltd. (1999) 97 CompCas 561 (CLB).
3
a) That the removal of the petitioner was oppressive and

prejudicial to the minority shareholders.
¶ 13. In the instant matter, Kirori Lal & Sons Limited is a family company. The majority of
shares are held by Kirori Lal & Sons with other family trust since its incorporation.
Reliance is placed on A.H. Ahmed Jaffer Case21, wherein the CLB held that:
“The removal of the petitioner (Managing Director) is oppressive of the

minority shareholders, especially when the Company is found to be a
family company and always managed by both groups. The act of the
second respondent may be lawful, but I s oppressive of the minority
shareholders.”22
¶ 14. Thus, it is submitted that petitioner was one of the members of board of directors and
the company through its selection committee appointed him to hold the position of
Executive Chairman of the Company for four consecutive years (2017-2021). Ousting
such person from the company strictly suggests the wrongful motive of the
Respondents. According to CLB in Saraswati Sharma Case.23
“The sensitivities of family structure are strained, though it is the

company law that governs, in the case of a family company, it must be
seen who is considered as head of the family, what the role is played by
him, what place others given to him, are the underlying causative factors
to be taken into consideration...without considering these subtle aspects
in a family company, if I take compliance or noncompliance with
provisions of law alone into consideration, I afraid I may not able to do
equitable justice to the parties.”
Thus, the Company being a closely held family company, any proposal for removal of a
Director who is also member of Board of Director, in his absence, will be oppressive qua such
director, who is sought to be removed from the directorship of the Company.24
21
A.H. Ahmed Jaffer v. Ace Rubber and Allied Products Pvt. Ltd., (2005) 124 CompCas 309 (CLB); Sangramsinh
P. Gaekwad v. Shantadevi P. Gaekwad, (2005) 11 SCC 314.
22
Vijay Krishan Jaidka v. Jaidka Motor Co. Ltd., (1997) 1 CompLJ 268 (CLB); S.B.P. Anand Mohan v. Graphic
Impressions Ltd., (2004) 120 CompCas 265 (CLB).
23
Saraswati Devi Sharma v. M/s. Sharma Ayurved Pvt. Ltd. & Ors., (2011) SCC OnLine CLB 23.
24
Sunil Kumar Agarwal v. Shiv Sakthi Sugar Mills (India) Pvt. Ltd., (2009) 148 CompCas 457 (CLB); Amrik
Singh Hayer v. Hayer Estate Pvt. Ltd., (2008) 82 CLA 355 (CLB).
4
b) That the removal of the petitioner was in violation of their

legitimate expectations as shareholders.
¶ 15. The Hon’ble Tribunal enjoys the power to do equity u/s 241, 25 and consequently, the
doctrine of legitimate expectations can be invoked to protect the rights under this
Section.26 The House of Lords has held that where shareholders have entered into an
association upon the understanding that ‘each of them who has ventured his capital will
also participate in the management of the company’,27 such a member has a legitimate
expectation to participate in the management of the company.28 Exclusion from
management will be unfairly prejudicial to such a shareholder.29
¶ 16. In the instant case, the petitioner i.e. Kamlesh Sharma, representative of group of
shareholder having 18% equity in the shareholding of the company, was the director
and also a member of Board of directors of the company30. Hence, he had substantial
role in the management of company and thereby, they had a legitimate expectation of
continuing to participate in the management of the company’s affairs.
Furthermore, legitimate expectations may arise outside the terms of agreements 31 if the
company is a quasi-partnership.32 The Apex Court has held that the principles of quasi-
partnership can be invoked for granting relief against oppression and mismanagement.33
Therefore, in light of these averments, it is submitted that the conduct of the Respondents
violates the petitioners legitimate expectations and is thus, oppressive.34
THAT THE REMOVAL OF MR. KAMLESH SHARMA WITHOUT GIVING

ANY PRIOR NOTICE AND WITHOUT CONSTITUTION OF SELECTION
COMMITTEE IS AGAINST THE PROVISIONS OF COMPANIES ACT, 2013
¶ 17. It is humbly submitted before the Hon’bl tribunal that the removal of Mr. Kamlesh
Sharma from the Directorship of the company was unfair and against the provisions of
companies act as no notice has been served and no reasonable opportunity of hearing
was given. It is submitted that in the instant case, grounds establishing the veracity of
25
Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad, (2005) 11 SCC 314.
26
V.S. Krishnan v. Westfort Hi-tech Hospital Ltd. & Ors, (2008) 3 SCC 363.
27
O’Neill v. Phillips, (1999) 1 WLR 1092.
28
Id.
29
A company, Re, (1986) BCLC 376.
30
Factsheet, para 5.
31
V. Natarajan v. Nilesh Industrial Products Pvt. Ltd., (2002) 51 CLA 149 (CLB).
32
Ebrahimi v. Westbourne Galleries Ltd, (1973) AC 360.
33
Sangramsinh P. Gaekwad, supra note 25.
34
Manmohan Singh Koli v. Venture India Properties Pvt. Ltd., (2005) 123 CompCas 198 (CLB).
5
abovementioned claims are, firstly, the removal of petitioner from Directorship was
unfair [A]; secondly, there were no sufficient grounds for the removal of the petitioner
[B].
A. THAT REMOVAL OF PETITIONER FROM DIRECTORSHIP WAS UNFAIR.
¶ 18. It is pleaded that petitioner was removed from the Directorship of company of in an
arbitrary and unfair manner. The claims are substantiated hereunder.
a) That the respondents did not give petitioner a reasonable

opportunity to be heard.
¶ 19. The petitioner was voted out from Directorship of the Company behind his back without
providing him the opportunity to hear and revert to the charges alleged.35 It is an
outright violation of the principle of ‘audi alteram partem’.36 Furthermore, no notice
has been served to the petitioner by the contrary to the mandate of 7 days prior notice.
It evinces the oppression and fraud meted out against the appellants by the respondents.
b) That The Condition Precedent To The Removal Has Not Been

Complied With.
¶ 20. It is submitted that according to §169(2) a special notice shall be required for any
resolution to remove a director.37 Thus, the law mandates that in order to initiate
proceedings to remove any director the Board must act only on the special notice38
given by a member of the company and not suo moto.
¶ 21. However, in the instant case, no such special notice was received by the Board and the
resolution stands vitiated by such omission. Evidently, any resolution passed
intentionally to oust the main promoter from directorship constitutes the “grossest act
of oppression”39. Therefore, non-compliance with the provisions of §169 is
oppressive,40 and the removal of the petitioner is therefore void.
35
Uma Nath Pandey v. State of U.P., AIR 2009 SC 2375; Cooper v. Wandsworth Board of Works, (1863) 143
ER 414.
36
A.K. Kraipak v. U.O.I., AIR 1970 SC 150.
37
Bhankerpur Simbhaoli Beverages Pvt. Ltd. v. PR Pandya, (1996) 86 CompCas 842 (P&H).
38
§115, the Act r.w. Rule 23, Companies (Management and Administration) Rules, 2014.
39
Queens Kuries & Loans Pvt. Ltd. v. Sheena Jose, (1993) 76 Com Cases 821 (Ker).
40
B.V. Thirumalal v. Best Vestures Trading P. Ltd. , (2004) 4 Comp LJ 519 (CLB).
6
B. THAT THERE WERE NO SUFFICIENT GROUNDS FOR THE REMOVAL OF THE

APPELLANTS.
¶ 22. It is submitted that there were no sufficient grounds for the removal of the Directorship
of the company. The petitioner was the one of the member of Board of directors and
have been instrumental in their tremendous growth of company. Further, serious
allegations have been levied against the petitioner for the first time and that too without
sufficient proof or inquiry. Placing reliance on Vikram Bakshi Case,41 it is pleaded that
these allegations have been made merely to wrongly oust the petitioner from the
management of the Companies.
41
Vikram Bakshi & Anr. v. Cannaught Plaza Restaurants Ltd. & Ors., 2016 Indlaw NCLT 129.
7
PRAYER/RELIEF
Wherefore in the light of arguments advances, authorities cited and facts mentioned herein,
may this Hon’ble Court be pleased to adjudicate by issuing an appropriate writ, direction or
order and hold that:
1. The petition in the instant case is maintainable;

2. The conduct of the Respondents has been unfairly prejudicial and oppressive to the
interests of the Appellant members and the companies, thereby, falling squarely within the
grounds of oppression and mismanagement mentioned u/s 241 of the 2013 Act;
3. The removal of mr. Kamlesh sharma without giving any prior notice and without
constitution of selection committee should be declared null and void.
And/or
Any other relief that the Hon’ble Court may be pleased to grant in the interest of
Justice, Equity and Good Conscience.
All of which is humbly submitted.
Sd/-
COUNSEL FOR THE PETITIONER
IX

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RGNUL SEMESTER MOOT COURT COMPETITION, 2021

RGNUL SEMESTER MOOT COURT

BEFORE THE HON’BLE

COMPANY PETITION NO. ___________/2021

KAMLESH SHARMA …………………………………………………………. PETITIONER

KIRORI LAL & SONS LIMITED AND ORS. ……………………………………... RESPONDENTS

~ Memorial for the Petitioner ~

LIST OF ABBREVIATIONS III

STATEMENT OF FACTS VII

THAT THE PETITION FILED IN THE INSTANT CASE IS MAINTAINABLE 1

MEMORIAL FOR THE PETITIONER

MEMORIAL FOR THE PETITIONER

MEMORIAL FOR THE PETITIONER

~SUPREME COURT CASES~

A.K. Kraipak v. U.O.I., AIR 1970 SC 150 ................................................................................ 6

~HIGH COURT CASES~

MEMORIAL FOR THE PETITIONER

A company, Re, (1986) BCLC 376 ........................................................................................... 5

~STATUTES AND RULES~

Cooper v. Wandsworth Board of Works, (1863) 143 ER 414 ................................................... 6

MEMORIAL FOR THE PETITIONER

MEMORIAL FOR THE PETITIONER

MEMORIAL FOR THE PETITIONER

affairs of the respondent being conducted in an oppressive manner, prejudicial to public

MEMORIAL FOR THE PETITIONER

THE ACT OF THE RESPONDENTS AMOUNTS TO OPPRESSION OR MISMANAGEMENT UNDER

MEMORIAL FOR THE PETITIONER

THAT THE PETITION FILED IN THE INSTANT CASE IS

THE ACT OF THE RESPONDENTS AMOUNTS TO OPPRESSION OR

THAT THE REMOVAL OF MR. KAMLESH SHARMA WITHOUT GIVING

MEMORIAL FOR THE PETITIONER

THAT THE PETITION FILED IN THE INSTANT CASE IS MAINTAINABLE

B. THE TRIBUNAL HAS DISCRETION TO GRANT THE WAIVER IN INSTANT PETITION

¶ 4. Admittedly, certain stipulations as to shareholding or number of member-petitioners

MEMORIAL FOR THE PETITIONER

THE ACT OF THE RESPONDENTS AMOUNTS TO OPPRESSION OR MISMANAGEMENT

MEMORIAL FOR THE PETITIONER

A. THAT THE BOARD MEETING WAS CONVENED TO UNFAIRLY PREJUDICE THE

B. THAT THE REMOVAL OF THE PETITIONER FROM THE DIRECTORSHIP OF THE

MEMORIAL FOR THE PETITIONER

a) That the removal of the petitioner was oppressive and

“The removal of the petitioner (Managing Director) is oppressive of the

“The sensitivities of family structure are strained, though it is the

MEMORIAL FOR THE PETITIONER

b) That the removal of the petitioner was in violation of their

THAT THE REMOVAL OF MR. KAMLESH SHARMA WITHOUT GIVING

MEMORIAL FOR THE PETITIONER

A. THAT REMOVAL OF PETITIONER FROM DIRECTORSHIP WAS UNFAIR.

a) That the respondents did not give petitioner a reasonable

b) That The Condition Precedent To The Removal Has Not Been

MEMORIAL FOR THE PETITIONER

B. THAT THERE WERE NO SUFFICIENT GROUNDS FOR THE REMOVAL OF THE

MEMORIAL FOR THE PETITIONER

1. The petition in the instant case is maintainable;

All of which is humbly submitted.

MEMORIAL FOR THE PETITIONER

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