1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi COMPANY APPEAL NO. 14 OF 2010 IN CLB COMPANY APPLICATION NO.3 OF 2010 IN CLB COMPANY PETITION NO. 69 OF 2009. WITH COMPANY APPLICATION NO. 10 OF 2010 IN COMPANY APPEAL NO. 14 OF 2010 IN CLB COMPANY APPLICATION NO.3 OF 2010 IN CLB COMPANY PETITION NO. 69 OF 2009. Ares Investment. ..Appellant/ Org. Applicant. vs. Mr. R.S. Sandhu & Ors. ..Respondents. .... Mr. D.D Madan, Senior Advocate, a/w. Zal Ardhyarujina, i/b. ARA Law, for Appellant/ Org.Applicant. Mr. F. Devitre, Senior Advocate, a/w. Rahul Chitnis with Vishal Maheshwari, i/b. Khaitan & Co., for Respondent Nos. 1 to 6. .... CORAM : S.J. KATHAWALLA, J. DATE : 2ND MARCH 2010. P.C. By this appeal, the appellant has impugned the order dated 8th February 2010 passed by the Company Law Board, Mumbai Bench, directing the company to convene a meeting of the Board of Directors after giving due notice to all the Directors 2 of the company as per the law, to transact the business in respect of appointment of statutory auditor of the company. 2. Mr. Madan, the learned Senior Advocate appearing for the appellant submits that the Company Law Board ought not to have passed the said directions under Regulation 44 of the CLB regulations and that the company was always at liberty to call a board meeting for appointment of statutory auditor of the company. Mr. Devitre, the learned Senior Advocate appearing for the respondent nos. 1 to 6 has submitted that M/s. Price Waterhouse, the statutory auditors of the company have by their letter dated 30th October 2009 submitted their resignation to the company and the company therefore, needs to fill in the casual vacancy of the auditor under section 224 of the Companies Act, 1956. Since the appellant was not allowing the company to consider the issue of appointment of statutory auditor of the company at the board meeting/s of the company, the company was compelled to move the CLB and to obtain the said directions. 3. Mr. Madan has drawn the attention of this Court to the notice dated 16th February 2010 issued by the company which reads thus :- “Notice is hereby given as per the direction received from Company Law Board, Mumbai Bench dated 8th February, 2010 that meeting of Board of Directors of the 3 Company will be held at 3.00 p.m., on Wednesday, March 3, 2010 at the registered office of the Company at 2, Swaroop Chambers, Opp AAI Import Warehouse, Sahar Pipeline Road, Andheri (East), Mumbai-400 099 to transact the following agenda. INVESTOR CONSENT a. To appoint M/s. BSR & Company (KPMG) as Auditor of the Company to fill the casual vacancy of the Auditor. b. To approve notice convening Extra ordinary General Meeting of the Company on March 3, 2010 at shorter notice.” Mr. Madan, has submitted that the impression given by the company by issuing the above notice is that the CLB has directed “to approve notice convening the Extra ordinary General Meeting of the company on March 3, 2010 at shorter notice”, though the CLB has not given any such directions. Mr. Devitre on behalf of the respondent nos. 1 to 6 have agreed to delete the words "On March 3, 2010 at shorter notice" from Item (b) of the Agenda. Item (b) of the agenda as amended shall now read as under :- "To approve notice convening Extra ordinary General Meeting of the Company." 4. Admittedly, M/s. Price Waterhouse, the statutory auditor of the company have by their letter dated 30th October 2009 submitted their resignation to the company and the company seeks to appoint a new auditor under section 224 of the Companies Act, 1956. In view thereof, I am not inclined to stay 4 the order passed by the CLB dated 8th February 2010. The said meeting shall therefore, be convened by the company to consider Item (a) of the agenda and Item (b) of the agenda as amended, on 3rd March 2010 at 3.00 p.m at the registered office of the company. 5. Mr. Madan has submitted that this Court should clarify that the appellant under Articles 82, 83 and 84(iv) of the Articles of Association of the company is entitled, not to caste his affirmative vote when the items on the agenda are put to vote at the said meeting of the Board of Directors of the company. Since the CLB has not directed the manner in which the parties should vote at the meeting convened on 3rd March 2010, no such clarification is required to be given. 6. Mr. Madan has also pointed out that the company has not given notice to all the Directors of the company as directed by the CLB. Mr. Devitre, has contended that the company is not required to give notice as alleged by the appellant. In my view, this Court need not deal with this issue in the present appeal. 7. The company appeal is therefore, disposed of. The company application also stands disposed of. [ S.J.KATHAWALLA, J. ]