"This is a mandatory provision as it used the word 'shall'. The mandatory notice for the meeting held in 2016 wasn't served. This is not in compliance of the provision. "
He refers to note 1 again and reads out
The provision talks about minutes of proceedings of general meeting, board of directors and other meetings and resolutions passed by postal ballot.
Divan now refers to Sec. 118 of the Act.
CJI: Is there any evidence of compulsion?
Shyam divan agrees. He will refer to that afterwards.
"if you are not a director. You cannot breach or abet the breach of statutory provision. You can suggest or advise but can you dictate,compel etc.. The Answer is no. " he said
"whenever the law or articles require you to apply your mind. You cannot delegate the duty and assign it to someone else as per sec. 166. He can consult but independent judgment has to be his own. You cannot yield on your independent judgment. Articles are subject to the Act" he argued.
Divan now moves on Sec. 166 which provides for the duties of directors.
"Directors must act in accordance of articles and shall act in good faith for the benefit of its members as a whole, it's employees, shareholders and community" he continues
CJI: What does chairman emeritus mean?
Divan: This is an honor bestowed on someone who has done phenomenal service. Tata sons agree to the service and honor of Mistry.
CJI: it's not mentioned in the Act. This is why we asked
Adv Sundaram: reading the definition from the oxford dictionary.
"Forner holder of an office, specially a university professor having retired but allowed to retain their title as honor. "
Divan now argues on Sec. 149 of Companies Act, 2013 signifying the importance of Board of Directors.
"Every company shall have a board of directors. Reason is because the duties of directors have statutory duties.
"We have the Executive Chairman,Cyrus Mistry in our case. If his tenure has to be terminated for any reason, this has to be don in compliance of the article which is not done" he argues.