In Re Sindhri Iron Foundry P LTD 19091963 CALHCW630218COM59820

MANU/WB/0307/1963
Equivalent Citation: 68CW N118
IN THE HIGH COURT OF CALCUTTA

Company Petition No. 63 of 1963
Decided On: 19.09.1963
Appellants: In Re: Sindhri Iron Foundry (P) Ltd.
Hon'ble Judges/Coram:
B.C. Mitra, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Ranadeb Chaudhuri, S.C. Sen and S. Mukherjee
For Respondents/Defendant: Sankar Ghosh, Advocate General, R.C. Nag for the
Company, S. Chaudhuri, A.C. Mitra, Salil Roy Choudhury, and B. Bachawat
JUDGMENT
B.C. Mitra, J.
1 . This is an application under sections 397 and 398 of The Companies Act, 1956.
The Sindhri Iron Foundry (Private) Ltd. (hereinafter referred to as the Company) was
incorporated under the Companies Act, 1956 as a Private Company on September 10,
1957 The authorised capital of the Company is Rs. 10,00,000/- divided into 10,000
equity shares of Rs. 101/- each. The paid up capital of the Company is Rs.
8,66,000/-. The objects the company inter alia are to carry on the business of iron-
founders, iron-masters, iron-mongers, iron-smiths, steel makers, steel converters
and other similar objects. Prior to January 24, 1962 Ramasankar Prosad and
Radhakissen Pro-sad respondents Nos. 2 & 3 and one Biswanath Prosad were the
Directors of the Company and in control of the Company's affairs. Sometime in
January 1962 the petitioners came into the Company as shareholders and later on
became Directors. The petitioners and their group acquired 5010 equity shares and
paid over Rs. 5,00,000/- for the shares. The respondents other than the Company,
hereinafter referred to as the Prosad group held 3,606 shares as against the said
5010 shares held by the petitioners. The petitioners, therefore, controlled the
majority of shares of the Company.
2. On or about February 25, 1962 all the three petitioners were elected Directors of
the Company along with respondents Nos. 2 and 3. The petitioners thus came to
control not only the majority of shares of the Company but they were also in a
majority in the Board of Directors. For about a year the Company carried on its
business without any apparent sign of discord between the petitioners and the Prosad
group. At a Board meeting held on January 24, 1962 resolutions were passed
whereby Murlidhar Jhunjhunwala, the petitioner No. 1 was authorised to operate on
the Company's banking accounts either severally or jointly with either of the two
Directors, Champalal Saraogi, the petitioner No. 2 or Mahendra Kumar Saraogi, the
petitioner No. 3 along with either of the two Directors, Rama Sankar Prosad, the
respondent No. 2 or Radha Kissen Prosad, the respondent No. 3. The power to
operate on the Company's banking accounts put the petitioners in control of the
Company's affairs. The Board meeting also accepted the resignation of BiswaNath
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Prosad from Directorship of the Company. At another Board meeting held on March
31, 1962 it was resolved that a Head Office of the Company be started at 132/1,
Mahatma Gandhi Road for the convenience of the business of the Company. Those
premises are the residence of the petitioners. It is thus clear that the petitioners were
put in complete control of the affairs of the Company and its management. The
resolutions passed at the Board meeting held on February 22, 1963 appear to have
precipitated matters. At this meeting, which according to the petitioners was attended
by the respondent No. 2, several important resolutions were passed. A resolution was
passed that all dealings with East India Metal Syndicate of No. 9, Waterloo Street,
Calcutta be made by the petitioner No. 1 severally or by either of the two Directors
namely, the petitioner No. 2 and petitioner No. 3 jointly along with either the
respondent No. 2 or the respondent No. 3. The object of this resolution appears to
have been to put a curb on the activities of the Prosad group. Another resolution was
passed that no cash payment is to be made to Hindustan Steel Ltd., Rourkela and
Bhilai Steel plants and the Tata Iron & Steel Co. Ltd. for supply of goods to the
Company and the said suppliers were to be advised accordingly. The suppliers were
further to be advised that they would be paid by cheque only drawn by the Company
on the Central Bank of India Ltd., 33, Netaji Subhas Road, Calcutta-1; in the
alternative the suppliers were to send the documents directly to the said Bank for
collection. The third resolution of importance was that Champalal Saraogi the
petitioner No. 2 was elected Chairman of the Board of Directors of the Company and
was to preside over all Board meetings. This resolution is alleged to have been
proposed by Rama Sankar Prosad the respondent No. 2. The next resolution of
importance was that 10 fully paid up equity shares were allotted to each of five
persons of the petitioners' group. But the most important resolution passed at this
Board meeting, was to shift the registered office of the Company from 52/1, Dr.
Abani Dutta Road, Howrah, to 22, Jogendra Nath Mukherjee Road, Howrah, with
effect from the date of the Board meeting, namely February 22, 1963. A
consequential resolution was also passed for sending intimation about the change of
the registered office to the Registrar of Companies and all customers and parties
concerned.
3. The resolutions passed at the Board meeting held on February 22, 1963 appear to
have caused a very serious reaction in the Prosad group. It is from this date that the
two contending groups of Directors started holding rival Board meetings separately,
and passing various resolutions, to neutralise the actions of the rival group. It is
quite clear that the petitioners for one reason or another were not pulling on well
with the Prosad group, and being in a majority of shares, they aimed at excluding all
interference by the Prosad group in the business and administration of the Company.
The Board resolution relating to payment by cheque only to the suppliers, suggests
that cash transactions were carried on in purchase of materials and this the
petitioners did not approve of. The shifting of the registered office of the Company
was also intended to remove any interference in the Company's affairs from the
Prosad group.
4. It is alleged by the Prosad group that on May 7, 1962 an Annual General Meeting
of the Company was held at which the balance sheet for 1960-61 signed by only the
respondents Nos. 2 and 3 was purported to have been passed. The balance sheet was
not signed by any of the three petitioners. The petitioners contend that no Board
meeting was held to consider or approve the balance sheet and profit and loss
account purported to have been passed at the alleged annual general meeting held on
May 7, 1962. It is further contended by the petitioners that no Board meeting was
held authorising the issue of notices to the share-holders for the general meeting to

be held on May 7, 1962. Further the petitioners contend that no notice was served on
any of them or on any other share-holder of their group of the alleged Annual
General meeting of May 7, 1962. In effect the petitioners contend that no general
meeting was actually held on May 7, 1962 and the documents relating to the Annual
General Meeting purported to have been held on May 7, 1962 have been
manufactured and fabricated. The petitioners contend that as they controlled a
majority of shares of the Company there could be no justification for their abstaining
from attending the Annual General Meeting alleged to have been held on May 7,
1962.
5. The events that happened after the alleged Annual General Meeting of May 7, 1962
are very startling in nature. The resolutions including the resolutions for changing the
registered office of the Company were passed at the Board Meeting held on February
22, 1963. Immediately on the preceding day, i.e., February 21, 1963 the Pro-sad
group is alleged to have held an Extraordinary general meeting of the Company at
52/1, Dr. Abani Dutta Road, Howrah. The business that was alleged to have been
transacted at this Extraordinary general meeting had a devastating effect on the
petitioners' majority in the Board of Directors of the Company as also in majority of
the shares held by them.
6 . The Extraordinary general meeting is alleged to have altered Clause 19 of the
Articles of Association of the Company by reducing the minimum number of Directors
to two and increasing the maximum number of Directors to seven. The authorised
capital of the Company was purported to have been raised from Rs. 10,00,000/- to
Rs. 15,00,000/- and the paid up capital of the Company was increased from Rs.
8,61,600/- to Rs. 10,72,900/-. The next thing that was done is somewhat amazing.
2113 equity shares are alleged to have been issued. The issue of the shares was not
only authorised by the extraordinary general meeting, but curiously enough the
meeting also allotted the shares to various parties who are alleged to be the creditors
of the Company and who are alleged to have been pressing for payment of their
dues. The respondent No. 4 Kedar Nath Bhagat and BiswaNath Prosad are alleged to
have been appointed Directors.
7. Assuming that the extraordinary general meeting of February 21, 1963 was validly
held, the effect of the business put through at the meeting, was that the petitioners,
who undoubtedly held the majority of the equity shares of the Company and were
also in a majority in the Board, ceased to control the majority of shares and were
also reduced to a minority in the Board of Directors.
8 . A notice under section 146 of the Companies Act, 1956 about the change in
address of the registered office of the Company, was filed with the Registrar of
Companies on or about February 27, 1963. Advertisements were issued in the
"Jugantar" and the "Statesman" about the removal of the registered office of the
Company to No. 22, Jogendra Nath Mukherjee Road, Howrah. The Prosad group
immediately retaliated by publishing advertisements in the "Statesman", denying that
the registered office of the Company had been removed and maintaining that it
continued to be at the same address namely, 52/1, Dr. Abani Dutta Road, Howrah.
The result is that the two groups of Directors are setting up two different registered
offices of the Company at two different addresses. It has thus become impossible for
the creditors and customers of the Company and others having anything to do with
the Company, to know where the registered office of the Company is situated.
9. The petitioners allege that the respondents Nos. 2 and 3 were in possession of the

books of account, documents, statutory books etc. of the Company prior to January
24, 1962 and have wrongfully retained the same with the result that the balance
sheets for the years 1960-61 and 1961-62 could not be prepared and the accounts
for those years could not be audited. According to the petitioners, the reason for
withholding the books of account is to avoid detection of the various wrongful acts
alleged to have been committed by the Prosad group. Several letters have been
exchanged between the parties relating to the books of account prior to January 24,
1962.
10. The petitioners alleged that on March 13, 1963 the respondents Nos. 2 and 3
with a large number of goondas forcibly entered into the Company's factory at
Chasnala and wrongfully took possession and charge of the factory, business and
properties of the Company including the current books, documents and papers and
cash moneys of the Company. It is further alleged that the petitioners who were in
lawful charge, possession and control of the Company's factory and business were
unlawfully ousted from such possession and control. A complaint in writing was
lodged with the police and a copy of the complaint is annexed to the petition.
11. According to the petitioners, the Prosad group are purporting to hold meetings of
the Board of Directors at the former registered office of the Company which they are
not entitled to do. The petitioners have started new books of account from January
1962. The petitioners allege that investigation into the affairs of the Company will
disclose that large sums of money have been misappropriated by the Prosad group.
12. The Prosad group on the other hand, allege that all books of account, papers and
documents including the statutory books of the Company were in the registered office
of the Company at 52/1, Dr. Abani Dutta Road and were in joint possession of the
petitioners and the Prosad group. They further allege that up to April 1962 the
Company's business was carried on smoothly and thereafter the petitioners started
mismanaging the affairs of the Company at its factory and at the Calcutta office. They
deny that the registered office of the Company was removed to No. 22, Jogendra
Nath Mukherjee Road, Howrah. They say that the parties agreed to start a Calcutta
office at No. 132/1, Mahatma Gandhi Road which is the residence of the petitioners
Nos. 2 and 3. According to them, the notice to the Registrar of Companies under
section 146 of the Act, regarding the removal of the registered office is invalid and
illegal. They further allege that the books of account and documents of the Company
remained at its registered office at 52/1, Dr. Abani Dutta Road and also at the factory
at Chasnala. On or about December 20, 1962 the petitioners are alleged to have
wrongfully removed the books and documents from the registered office of the
Company. According to the Pro-sad group the balance sheet and accounts for the
year 1960-61 have been duly passed at an Annual General Meeting of the Company
alleged to have been held on May 7, 1962 which was attended by the petitioners and
the accounts have been filed with the Registrar of Joint Stock Companies. In spite of
demands the petitioners have failed to return the books, papers and documents of the
Company to its registered office at 52/1, Dr. Abani Dutta Road.
13. According to the Prosad group a Board meeting was held on January 22, 1963, of
which notice is alleged to have been given to the petitioners. This meeting
considered the question of removal of the statutory books and common seal of the
Company from its registered office. It also considered the question of increasing the
number of Directors from 5 to 7 and decided to call an extraordinary general meeting
for that purpose. This Board meeting also considered the question of increasing the
authorised capital of the Company from Rs. 10,00,000/- to Rs. 15,00,000/-. This

petitioner, however, deny having received the notice of this meeting of the Board. A
notice was purported to have been issued to the share-holders for an extraordinary
general meeting of the Company to be held on February 21, 1963, at 52/1, Dr. Abani
Dutta Road to consider and pass the resolutions relating to the following matters:--
(a) Alteration of Clause 19 of the Articles of the Company to reduce the
minimum number of Directors to two and increase the maximum number of
Directors to seven.
(b) Allotment of shares to several creditors in satisfaction of their loans and
dues from the Company.
(c) Increase of the authorised capital of the Company from Rs. 10 lakhs to
Rs. 15 lakhs.
(d) Appointment of Kedar Nath Bhagat and BiswaNath Pro-sad as Directors of
the Company.
1 4 . The petitioners, however, deny having received notice of the extraordinary
general meeting alleged to have been held on February 21, 1963. They further deny
the legality and validity of the meeting itself and of the resolution purported to have
been passed at the said meeting.
15. According to the Prosad group the said extraordinary general meeting was duly
held and the resolutions were also duly passed. The said meeting issued and allotted
2113 equity shares to several alleged creditors of the Company in full satisfaction of
their dues from the Company. Kedar Nath Bhagat and BiswaNath Prosad are alleged
to have been appointed Directors of the Company.
16. On March 4, 1963 a Board meeting held by the Prosad group passed a resolution
whereby Kedar Nath Bhagat was solely empowered to manage the Company's factory
and workshop at Dhanbad. He was also directed to discharge three employees at the
factory, of the petitioners' group. Further he was to be in exclusive charge of the
factory and the other Directors were deprived of the authority to take part in the
direct management of the affairs of the Company. The other Directors were to
exercise their control only through the Board meeting. The authority of the
petitioners to operate on the Company's bank accounts was revoked and Bhagat was
authorised to operate on the said bank accounts.
17. The version of the Prosad group relating to the raid on the factory on March 13,
1963 is that, Bhagat discharged several employees from the factory, and the said
employees left the factory premises peacefully. But suddenly at about midnight of
March 13, 1963 these discharged employees appeared in the factory premises with
police officers and it then transpired that they reported to the local police that looting
was going on in the factory and applied for police help.
18. What Bhagat is alleged to have done thereafter is something extraordinary. It is
alleged in paragraph 31 of the affidavit affirmed by Rama Sankar Prosad on March
25, 1963, that Kedar Nath Bhagat who took charge of the Company's factory under
the authority of an alleged resolution, found it impossible to carry on the business
without raising a loan. In order to meet the situation Bhagat decided to lease out the
factory to one Shibnath Sinha and hypothecate the raw materials to raise a loan of
Rs. 25,000/-. This lease was executed on March 15, 1963. It is further alleged that
the lease was surrendered on March 18, 1963 and the loan of Rs. 25,000 raised on

hypothecation of raw materials was returned and a surrender of the lease was
accepted. I must at once point out that the conduct of Bhagat in granting the alleged
lease is extraordinary. The entire undertaking of the Company was leased out without
any reference to the shareholders of the Company. No reference appears to have
been made even to the Board of Directors. It appears that the Prosad group, having
regard to their wrongful conduct in forcibly taking possession of the Company's
factory were anticipating that the petitioners would move this Court and get
appropriate orders which might interfere with their possession and it is to anticipate
such a situation that the lease of the entire undertaking of the Company was created.
But when they found that a Receiver was appointed only of all the immovable
properties and their possession and control of the business was not taken away by
the order of this Court, a surrender of the lease was brought about, as the purpose of
setting up the lease was over. No doubt if a receiver was appointed to take charge of
the Company's business, such an order would have been frustrated by the purported
lease alleged to have been created by Bhagat.
19. It is alleged that the petitioners came to know of this lease; and to oust the
Prosad group completely from the Company's business and management, the
petitioners started the present proceedings and got a Receiver appointed who took
possession of the Company's assets in terms of the order dated March 15, 1963. It is
further alleged that on March 18, 1963 the lessee surrendered the lease as he found
that disputes had started between the Directors of the respondent-Company. The
lessee demanded return of the loan of Rs. 25,000/- and the loan was thereupon
returned. The Prosad group also asks for an investigation into the affairs of the
Company.
20. Several letters have been exchanged between the parties relating to the affairs of
the Company. The petitioners allege that they had written to the Prosad group asking
for return of the books and documents of the Company. The Prosad group on the
other hand, alleges that they had in their turn written several letters to the petitioners
complaining about various acts of omissions relating to the affairs of the Company. It
is alleged that several of the letters have never been received by the party to whom
they were addressed and copies have been produced only for the purpose of this
application. There are one or two letters, however, to which I ought to refer.
21. On March 6, 1963 the respondent No. 2 wrote a letter to all the three petitioners
and this letter was sent by registered post. It is to be noted that before this letter was
written the alleged extraordinary general meeting of February 21, 1963 and the
alleged Board meeting of March 4, 1963, at which Bhagat was put in exclusive charge
of the Company's factory, had already taken place. But strangely enough there is no
reference either to the fact of Bhagat's appointment or to the fact that the
extraordinary general meeting had completely changed the picture regarding the
control of the Company's affairs, as the Prosad group had become a majority in the
Board. On the other hand, the letter charges the petitioners with mismanagement of
the affairs of the Company and also with illegal withdrawal of the Company's funds
from the bank account, on the assumption that the petitioners were still then in
charge and control of the Company's business and factory. This does not seem to me
to be a letter from persons who were in control of the majority of shares and also
constituted the majority in the Board of Directors of the Company.
22. There is one other letter to which I should refer and that is the letter of March 8,
1963 which was also sent by registered post with acknowledgment due. This letter
was written on behalf of the Company to the respondent No. 2. In this letter it is

stated that it was surprising that the respondent No. 2 should be denying the removal
of the registered office of the Company from 52/1, Dr. Abani Dutta Road to 22,
Jogendra Nath Mukherjee Road as the Board meeting held on February 22, 1963 at
which the resolution for removal of the Registered office was passed, was attended
by the respondent No. 2. It is also stated in the letter that at the said Board meeting
the respondents Nos. 2 and 3 were requested to hand over all books of accounts,
papers and documents for preparation of the balance sheets for the years 1960-61
and 1961-62. It was further pointed out in this letter that No. 52/1, Dr. Abani Dutta
Road had ceased to be the registered office of the Company. It is extremely
surprising that this letter was not answered by the respondent No. 2. If his allegation
is true namely that no Board meeting was held on February 22, 1963 at which the
resolution for removal of the registered office of the Company was passed, one would
expect the respondent No. 2 to have made very strong protest against the statements
made in the said letter. But he kept completely silent and this silence on his part is
significant and can be justified only on the ground that the statements in the letter
are true.
23. It is on the happening of the above-mentioned events that the petitioners made
this application on March 15, 1963. On that day the Official Receiver of this Court
was appointed Receiver of the immovable properties, fixed assets, books, papers and
documents of the Company. The Receiver was directed to make an inventory of the
goods manufactured or in the process of manufacture. But he was not to take
possession of the said goods of either description and was not to interfere with the
normal course of the Company's business. On March 18, 1963 a further interim
orders were made directing that no movables or raw materials or manufactured
articles or articles in course of manufacture were to be removed from the factory until
they were included in the list which was being prepared by the Receiver. Bhagat was
to carry on the business and proper accounts were to be maintained in respect of
such business. On March 20, 1963 a further order was made directing that instead of
Bhagat, the respondent No. 2 should carry on the Company's business. Separate
accounts were to be maintained and such accounts were to be supplied to the
Receiver. Champalal Saraogi and Ramnibas Sarma, two persons of the petitioners'
group, were to be employed in the Official Receiver's staff. They were to be treated
as additional members of the Official Receiver's staff. Liberty was given to the
respondent No. 2 to open overdraft account with banks but no moneys were to be
drawn from the Company's then existing bank accounts. The Official Receiver was
also appointed Receiver of certain imported goods. Directions were given for making
an inventory of books and documents maintained by the Company. Various other
directions were given to which it is not necessary to refer.
24. On April 9, 1963 a further interim order was made restraining Satyanarayan Modi
and Kedarnath Bhagat from entering or remaining in the factory premises. Liberty
was given to the Official Receiver to hire a godown in Calcutta for storing goods.
Thereafter on May 16, 1963 and May 31, 1963 certain further orders were made for
clearance by the Central Bank of India Ltd. of certain imported materials. It is not
necessary to refer to those orders for the purpose of this application.
25. The main charges in the petition are that the books of accounts and statutory
books are being held back by the Prosad group and have not been made over to the
petitioners in spite of being repeatedly called upon to do so. By reason of such
wrongful acts the balance sheets and profit and loss accounts for 1960-61 and 1961-
62 could not be prepared by the Company. The next charge is that the petitioners
have invested in and contributed towards the capital of the Company, large sums of

money and by reason of such investment they were in charge and control of the
Company's business but have been wrongfully ousted by the Prosad group. The next
charge in the petition is that the Company's registered office was duly removed from
52/1, Dr. Abani Dutta Road to No. 22 Jogendra Nath Mukherjee Road, Howrah. Notice
of such removal as required by the Act was duly given to the Registrar of Companies.
But the Prosad group are wrongfully contending that the registered office of the
Company has not been removed and have published advertisements in newspapers
that the registered office of the Company continues to be at No. 52/1, Dr. Abani
Dutta Road, Howrah. It is alleged that the publication of the notice in the newspaper
by the Prosad group is illegal and wrongful and not binding on the Company or its
share-holders.
26. The next charge in the petition is that the Prosad group of Directors forcibly
trespassed into the Company's factory and workshop at Chasnala and wrongfully took
possession of the Company's workshop, factory, business and assets. Further the
Prosad group wrongfully and illegally ousted the petitioners who were lawfully in
charge of the management and control of the Company. It is alleged that a complaint
was lodged with the police about the illegal and wrongful acts of the Prosad group.
The charge is that the business, property, and assets of the Company are in control
of persons who are not authorised to carry on the Company's business. The next
charge is that KedarNath Bhagat, the respondent No. 4 has been purported to be
appointed a Director of the Company illegally and in violation of the Company's
Articles. It is alleged that no such appointment was made and the purported
appointment is not binding on the Company. It is further alleged that the respondent
No. 4 has wrongfully and illegally usurped the functions of a Director. The next
charge is that the operation of the Company's Bank accounts have been unlawfully
and wrongfully stoppled by the Prosad group of Directors. The next charge is that the
Prosad group of Directors are illegally purporting to hold meetings of the Board of
Directors at the previous registered office of the Company. Besides the above charges
there are other minor and general charges in the petition.
27. At the outset it is to be noted that there is no charge in the petition about the
alleged annual general meeting purported to have been held by the Prosad group on
May 7, 1962. Again there is no charge in the petition about the alleged Extraordinary
general meeting of the Company purported to have been held on February 21, 1963
or with regard to any of the business alleged to have been transacted at the said
meeting. Nor is there any charge in the petition about the authority given to the
respondent No. 4 to be in exclusive charge of the Company business and to operate
on the bank accounts of the Company. It has been contended on behalf of the
petitioners that they came to know about the annual general meeting alleged to have
been held on May 7, 1962 and the Extraordinary general meeting alleged to have
been held on February 21, 1963 from the affidavit-in-opposition filed in those
proceedings and therefore, it was not possible for them to include those matters in
the petition.
2 8 . On the allegations mentioned above the petitioners are seeking to obtain
appropriate orders under sections 397 and 398 of the Companies Act, 1956, to put to
an end to, what according to them, are acts of oppression to them and also
mismanagement of the affairs of the Company.
29. It is clear to me that a very serious situation has arisen in the administration of
the Company's affairs. By reason of the activities of the rival groups of Directors the
normal method of administration have come to an end. Two rival groups of Directors

have set up two different registered offices of the Company and are holding meetings
at these two different places with the object of nullifying the resolutions passed at
the rival meetings of the Board of Directors. The two rival groups have set up two
rival Boards of Directors who are holding meetings at the said two different
addresses and are purporting to carry on the Company's business. No body knows
who are the lawful Directors of the Company. The Company's bank accounts have
become practically frozen because the authority to operate upon the accounts has
been purported to be revoked. The lawfully constituted Board of Directors have been
ousted from possession, control and management of the Company's factory and
workshop. Furthermore, one group of Directors has purported to call Annual General
Meeting at which accounts of the Company are alleged to have been passed, which is
disputed. The extraordinary general meeting of the Company purported to have
transacted business which has a devastating effect on the control and management of
the Company's affairs. A large block of new shares have been purported to be issued
and allotted. New Directors have been appointed, Articles of Association of the
Company have been altered with the object of completely upsetting the control and
management of the Company's affairs. Serious allegations have been made, and not
without substance, that notices of Board meetings and general meetings of the
Company have been deliberately suppressed. In this state of affairs intervention of
the Court is sought under Sections 397 and 398 of the Companies Act, 1956. There is
no doubt in my mind that the Company cannot carry on its business as things stand
at present, unless remedies are imposed by this Court by appropriate orders. The
question is, what should be the method by which such remedies are to be provided?
30. Mr. R. Chaudhuri appearing for the petitioners contended that ample grounds
have been made out in the petition for appropriate orders under Sections 397 and
398 of the Companies Act, 1956. According to him, the allegations that have been
made in the petition, are by themselves sufficient for making suitable orders. Mr.
Chaudhuri contended that his clients had come into the Company after investing over
Rs. 5 lakhs with a view to obtain control over the management of the affairs. They
were induced to invest this large sum of money only on the basis that they would be
in sole control of the Company's affairs. Apart from the other allegations in the
petition, Mr. R. Chaudhuri contended that his clients who were in lawful control have
been definitely ousted from control, possession and management of the Company's
factory, business and assets. It is admitted that the petitioners are no more in control
and that the Prosad group have taken charge of the Company's affairs. Mr. R.
Chaudhuri contends that this is an act of oppression which entitles his clients to an
order under section 397 of the Act. The petitioners have not only been ousted but as
things stand at present, there is no chance of their being re-instated except through
an order of Court. This act according to Mr. R. Chaudhuri, is a continuing and
persistent act of oppression.
3 1 . As against this it has been urged by Mr. S. Chowdhury appearing for the
respondents other than the Company, that an act of oppression contemplated by
section 397 of the Act is not a single wrongful act but a continuous and persistent
oppressive conduct and before the Court can make any order under this Section, this
Court must be satisfied that the act complained of is not a single isolated wrongful
act but a persistent and continuous course of wrongful conduct. Mr. A.C. Mitra, the
learned Standing Counsel also appearing for the respondents supported Mr. S.
Chowdhuri's arguments.
32. In my view, the respondents' contention that in order to attract Section 397 of
the Act, the oppressive act complained of, must be wrongful conduct which continues

over a period of time, is not tenable. The wrongful act complained of in this case, is
a single act of raid, but its effect, as I see it, is continuous and persistent oppression
of the petitioners by the Prosad group. The claim of the Prosad group to have held an
Extraordinary General Meeting, to have authorised issue and allotment of new shares,
to have altered the character and composition of the Board, unmistakably indicate its
aim and object. The law in my view, does not contemplate that a petitioner who is
otherwise entitled to relief under this section must be able to show that there has
been continuous course of oppressive conduct over a period of time before he can
obtain relief under this section.
33. If a petitioner is required to prove continued oppression for a period he must
wait and remain dispossessed for a period of three months, six months or a year or
more. But is that what is contemplated by section 397 of the Act? If that is what is
required by this particular section, it may very well be that by the time the petitioner
becomes eligible to come to Court for relief, there may be nothing left in the assets
of the Company and this Court will be completely powerless to give him any relief
whatsoever. In my view, the Section neither contemplates nor requires a continuous
course of oppressive wrongful conduct over a period of time. If that is so namely if it
is required that the complainant must be able to prove that there was oppressive
conduct over a long period of time, other questions would arise namely what would
be the period of time before the expiry of which he cannot come to Court? Is it three
months or six months or a year or more? It is not possible for the Court to lay down
any standard with regard to the period of oppression, before which it is to be held
that the party cannot come to Court. If the Court is satisfied that the conduct arising
from a single wrongful act is such, that its effect will be a continuous course of
oppression and there is no prospect of remedying the situation by the voluntary act
of the party responsible for the wrongful act, this Court is entitled to interfere by
appropriate order under section 397 of the Act. In this case, it is true that so far as
dispossession is concerned, there is one single wrongful act by which the petitioners
have been dispossessed. But is there any prospect of the factory being restored to
the petitioners' possession? There is none. And that being so, if the other conditions
are fulfilled, appropriate orders should be made to provide for remedies to bring to
an end to matters complained of.
34. The next point to be considered is whether the application is maintainable by the
petitioners who claim to control a majority of shares of the Company, It has been
strenuously argued by learned Counsel for the respondents that this application is not
maintainable, as according to the petitioners themselves, they are in a majority and
sections 397 and 398 contemplate applications only by a minority. It has been argued
that the Sections were never intended to give relief to a majority who at any time are
entitled to take such actions as they think fit for preventing the wrongful and
oppressive act. In support of his arguments Mr. S. Chowdhury referred to Form No.
43 which is the form prescribed under Rule 88 of the Companies (Court) Rules, 1959,
for an application under section 397 of the Companies Act, 1956. He submitted that
the heading of the Form is "Petition by minority shareholders under section 397".
According to him, this clearly shows that the section was intended only to apply to
the case of application by a minority only and it cannot apply to an application by a
majority. The learned Standing Counsel, however, contended that the heading
mentioned above is not a part of the form, but apart from that, he also contended
that the application must be by a minority. It was argued by both Mr. S. Chowdhury
and Mr. A.C. Mitra that both the sections 397 and 398 contemplate applications by
the minority group. But it is to be noted, however, although in Form No. 43 which is
a Form for an application under section 397 the heading is as mentioned above, there

is no such heading in the Form No. 44 which is the Form prescribed for applications
under section 398. Therefore, although it can be contended that an application under
section 397 must be by a minority, the same argument cannot apply, on the basis of
the forms prescribed, to an application under section 398.
35. It is true that in the case of Companies functioning normally under the doctrine
of majority rule, it is the oppressed minority who comes to Court for relief. The
majority seldom, if ever, has the occasion to come to Court for relief because it can
always have things done in its own way. But there may be cases, as in the instant
case, when the real majority is rendered ineffective by the wrongful acts and
maneuvers of a minority. The situation may be such, as in the instant case, that
remedy cannot be obtained by the operation of the machinery in the domestic forum.
Can it be said that even in such cases the Court is powerless to intervene and provide
a remedy in exercise of its jurisdiction under section 397 and section 398? I think
not. This Court has not only the jurisdiction, but it is the duty of the Court to
intervene, if it finds the situation to be such as it is, in this case.
3 6 . Mr. R. Chaudhuri appearing for the petitioners contended that there is no
substance in the contention of the respondents that applications under the said two
sections can be made only by a minority. He further contended that even assuming
that was so, the Prosad group have, by what they have alleged in their affidavits-in-
opposition, made it clear that the petitioners are now in a minority and therefore,
they are entitled even on the basis of the argument of Mr. S. Chowdhury to maintain
this application. In my opinion, however, Mr. R. Chaudhuri cannot rely upon the
statements in the affidavit-in-opposition unless he accepts them as representing the
true state of affairs. But he does not accept them to be such and contends that what
was done at the extraordinary general meeting is illegal and invalid. That being so, I
cannot accept his contention that the petitioners are in a minority and they have
applied as such.
37. The learned Advocate-General who appeared for the Company and supported the
petitioners contended that the opening words of both the sections 397 and 398 are
"any members of a Company, who complain etc.". He argued that there was nothing
in the two sections which could justify this Court's holding that the two sections
applied to applications by the minority group only. He further argued that it is not
open to the Court to read into the sections something which was not there. The
sections nowhere say that in an appropriate case, a majority cannot come to Court
and seek redress for oppressive acts or for acts prejudicial to the interest of the
company.
3 8 . At this stage I should point out that in this case the company is being
represented by the two sets of Counsel. Orders were made giving leave to
representation of the Company by two sets of Solicitors and Counsel. Mr. Sankar
Ghose also appearing for the company and supporting the respondents, contended
that the two sections apply only to applications by minority.
39. It seems to me that there is a good deal of substance in the contentions of the
learned Advocate-General. The sections nowhere prescribe that the applications
under the two sections can be made only by a minority group. Nor do they prescribe
that a majority group can under no circumstances come to Court for redress,
whatever may be the nature and extent of the oppressive acts of rival group and
whatever may be the extent of the injury suffered by the company as a result of the
activities of such a group. Both the sections are in Chapter VI of the Act and the

heading of the Chapter is "Prevention of oppression and mismanagement". Thereafter
the sections give, to any members of a Company the right to come to Court for the
acts complained of. Section 399 of the Act lays down conditions to ensure that the
application is made or supported by a minimum number. But while the minimum has
been fixed by section 399 there is nothing about the maximum. Mr. S. Sen who was
appearing with Mr. R. Chaudhuri contended and I think rightly, that to say that the
application can never be made by a majority, would amount to reading into the
section 399 something which is not there. The Legislature intended by these sections
that the application must be moved or supported by a minimum number, which in the
opinion of the Legislature is substantial for the purpose of an application under
sections 397 and 398. It never intended to impose any limit on the maximum. And I
see no reason why in an appropriate case, if the court is satisfied about acts of
oppression or mismanagement, relief cannot be granted even if the application is
made by a majority, who have been rendered completely ineffective by the wrongful
and ultra vires acts of a minority group. If the court finds that the company's interest
is being seriously prejudiced by the activities of one or other group of shareholders,
that two different registered offices at two different addresses have been set up, that
two rival Boards are holding meetings, that the Company's business property and
assets have passed into the hands of unauthorised persons who have taken wrongful
possession and who claim to be shareholders and Directors, that the bank accounts
of the company have been practically frozen, there is no reason why the Court should
not make appropriate orders to put an end to such matters.
4 0 . So far as this company is concerned, things as they stand to-day cannot be
allowed to continue. The company's interest must be protected. The activities of the
rival group of Directors in this company have put the creditors, customers and
anybody else having anything to do with this company in an absolutely helpless
position. They do not know, and they would not know, where the Company's
registered office is situated. They do not know who among the Directors are duly
authorised to act on behalf of the company. Such a state of things must come to an
end and the sooner the better. Sections 397 and in particular 398 were introduced to
put an end to such things.
41. Mr. S. Sen next contended that there is authority for the proposition that in an
appropriate case the court should make an order even if the application is moved by
the majority group. He referred to the judgment of Mullick, J. in Re Albert David Ltd.
(1). In this case similar questions arose for consideration. Mullick, J. had already
heard and decided a suit in which he had declared that Albert Judah was entitled to a
block of 26,752 shares and by reason of the decree made by him in the suit, Judah's
group constituted a clear majority. In this case also the situation was such that no
general meeting of the Company could be held, the company was made the party to a
long drawn litigation and there was a prospect of further litigation. Judah's wife held
more than 90 per cent, of the ordinary shares of the company when it was converted
into a public company in 1948. It was alleged that fresh shares were issued by the
rival group of Directors and this was followed by forcible taking over of the
possession of the company's factory, as in the instant case. Finally a block of 26,752
shares belonging to Judah were sold by his rival group. Thereafter a suit was
instituted by Judah which was disposed of by Mullick, J. as mentioned above. The
notice of the application under section 397, 398 of the Act was taken out by Judah.
Judah came to a settlement with one D.N. Bhattacharyya, the admitted holder of the
largest of block of new shares, so that Judah's group along with Bhattacharyya were
the owners of the overwhelming majority of shares. But this majority group was
unable to obtain management and control of the company's affairs by reason of the

improper conduct of the rival group of Directors. In this case also the Directors who
were in a minority managed to remain in control of the management, after wrongfully
taking possession of the company's business and factory and it was the majority
group who came to court for relief under sections 397 and 398. In this case also the
same point was raised in argument namely that the persons in control and
management of the company's affairs do not represent the majority of shareholders. I
set out below portions of the judgment of Mullick, J.:
The broad fact established in this case is that ever since September 1954, the
persons in management do not represent the majority of the share-holders.
This is a unique case in which the affairs of the company are being carried
on by men who represent a very small minority of share-holders. Until then
new shares were issued in September 1954, Judah and his wife were holding
more than 90 per cent of the ordinary shares which carried voting rights.
Even after the issue and allotment of new shares Judah and his wife
continued to hold the majority of shares, if the bunch of 32,000 share of
D.N. Bhattacharyya is left out of account. Bhattacharyya, though originally
belonged to the Mukherjee group, subsequently settled with Judah and
joined hands with him, so that ever since against the Judah group
constituted the overwhelming majority. To prevent the majority from taking
up the management through their own representatives, as Directors and to
maintain themselves in office, the Mukherjee group acted in a very high
handed manner in selling the entire bunch of 26,752 ordinary shares
belonging to Judah to Rampada Gupta, Mukherjee's nomine". Then again in
another portion of judgment it was held: "If the situation is such that no
proper election of Directors can take place, then in my judgment a deadlock
is created in the management of the company and a case is made out for
winding up, on the ground that it is just and equitable to do so. It is against
the fundamental principle of Company Law that the minority should carry on
the management without any election, as provided for in the Act and the
majority of shareholders should be kept out of management. Such an
unnatural state of affairs is continuing in the company ever since 1954. And
to keep this unnatural state of affairs continuing the acts done in the name of
the company by the present management are liable to be challenged and in
fact have been challenged as illegal. Meetings are held by rival parties and
different sets of Directors are declared to be elected in the different
meetings. The legality of the present Board of Directors has been challenged
with good reason and the company is being involved in ruinous litigation. On
the facts of this case, I hold that the company is liable to be wound up on
the ground that it is just and equitable to do so.
42. It is quite clear that the facts in Judah's case bear a very close resemblance to
the facts of the instant case. Rival Board meetings are being held, conflicting
resolutions passed, general meetings not called and those alleged to be held are
challenged being illegal, accounts not passed, and two registered offices have been
set up. Besides notices of meetings are being suppressed by the rival groups as was
done in Judah's case.
Mullick, J. further held: In my judgment conditions that prevent proper
functioning of the Company, according to the provisions of the Indian
Companies Act, uncertainty as to the de jure character of the present Board
and difficulty of having this state of affairs rectified in the usual way, the
patent fact that the Company is being run by the present Board in their own

interest, overriding the wishes and interest of the majority of share-holders
which inevitably involves the Company in costly litigations are facts from
which I am bound to conclude that the affairs of the Company are being
conducted in the interest of a group and certainly not in the interest of the
company, these acts do bring the instant case within section 398 of the
Indian Companies Act. By reason of the change in management after
September 1954 the affairs of the company have been proved to have been
conducted in a manner prejudicial to the interest of the company". Then
again it was held: "The mischief in the instant case lies in allowing a Board
of Directors to continue, the legality of whose appointment is open to serious
question and who in any event, do not represent the majority of shares. As
stated before, the petitioners' group represented the majority of shares. Even
if the bunch of 26,752 shares belonging to Judah is left out of account the
petitioner's group represent the majority of shares". From the different
portions of the judgment of Mullick, J. quoted above it would be quite clear
that the petitioners in that case represented the majority; but even though
they represented the majority the minority managed to oust them both from
possession of the company's factory and business and also from the
management and it was in these circumstances, that Mullick, J. held that the
court should make an order under sections 397 and 398 of the Act and
accordingly an Administrator was appointed.
In the instant case also it is contended that the application is by a majority
and therefore, it is not maintainable. I respectfully agree with the views
expressed by Mullick, J. in Albert David's case and also his conclusions.
The learned Standing Counsel referred to the case of K.R.S.N. Iyenger and
ors. v. T.A. Mani & ors. (2) MANU/TN/0155/1960 : A.I.R. (1960) Mad. 338 in
support of his proposition that it is only the minority who can apply for relief
under section 397 of the Act. In that case Ramaswami, J. held that section
397 provides for a remedy for the oppression of minority on the lines of
section 210 of the English Act. This case is not an authority for the
proposition that an application under section 397 and section 398 must be
made by a minority and the majority can never come to court for relief under
the said sections. The observation referred to above, is purely in the nature
of an obiter. The question whether a majority can apply was not in issue at
all in that case because the application in that case was by a minority, the
petitioners holding only eight out of seventy-four shares. But in so far as the
learned Judge said, even as an obiter, that section 397 provides for a remedy
for the oppression of minority on lines of section 210 of the English Act. I
respectfully disagree with his views. In section 210 of the English Act, the
word minority is clearly mentioned at the head of the section itself. But there
is no such limitation in the Companies Act, 1956. I prefer to follow the
decision of Mullick, J portions of which I have set out earlier in this
judgment, on the question of maintainability of an application by the
majority group.
Learned Counsel for both parties referred to two English cases reported in
(1958) 3 All England Reports. The first case is the Scottish Co-operative
Wholesale Society Ltd. v. Meyer & Anr. (3) (1958) 3 A.E.R. 66. In this case
both parties pooled their resources and started manufacture of rayon cloth.
The respondents provided the technical knowledge and experience and
obtained a licence for purchase of yarn and manufacture of rayon cloth. A

private company was formed as a subsidiary of the appellant. Out of total
share capital of this private Company the appellants held 4000 shares and
the respondents held 3900 shares. The company had five Directors of whom
the respondents were two and three were nominees and Directors of the
appellants. The company carried on business successfully. On the question of
issue of fresh shares, dispute started between the parties. The appellants
started starving the company of supplies of rayon cloth on which the
company was depending. The nominee Directors of the appellant supported
the appellant company, with the result that the trading activities of the
company declined considerably and thereupon an application was made
under section 210 of the English Act. It was held that the conduct of the
appellant was oppressive and in view of the facts that three of the Directors
on the Board of the company were nominated by the appellants, the conduct
of these nominated Directors was also oppressive although the misconduct of
the nominee Directors was negative being passive neglect of the company's
interest The last paragraph of the speech of Lord Denning at page 89 of the
report is significant. It is as follows: "True it is that in this, as in other
respects, Your Lordships are giving a liberal interpretation to section 210.
But it is a new section designed to suppress an acknowledged mischief.
When it comes before this House for the first time it is, I believe, in
accordance with long precedent--and particularly with the resolution of all
the Judges in Heydon's case --that Your Lordships should give such
construction as shall advance the remedy. And that is what "Your Lordships
do to-day.
43. So far as the sections in the Companies Act 1956, are concerned they are also
new although they were preceded by the amended section 153-C and 153-D of the
Indian Companies Act 1913. In interpreting these sections, therefore, this Court
should take a liberal view, and try to remedy the mischief for which it was intended,
subject of course, to the conditions imposed by the sections themselves.
44. The next case referred to is re H.R. Harmer Ltd. (4) (1958) 3 A.E.R. 689. In this
case Harmer had promoted a private company the shares of which were held by
himself and his two sons. Harmer had a larger voting strength on the basis of the
shares held by him. But his two sons together had the larger beneficial interests. The
father thought that he could disregard the resolutions of the Board as he held the
voting control and assumed powers which he did not possess. He exercised powers
arbitrarily against the wishes of his sons who had the major beneficial interest but a
minority of votes. It was held that the word 'oppressive' meant "burdensome, harsh
and wrongful". In this case the Court of Appeal upheld the relief which was granted
under section 210 and it was held that the conduct of the father was oppressive to
the sons. Relying on this case Mr. Sen contended that even in that case the court did
not hesitate to give relief under section 210 to the applicants who had the majority of
beneficial interest in the shares but the minority of voting strength.
45. Mr. S. Chowdhury argued that the petitioners should be relegated to a suit. All
the relief which they claim can be properly granted in a suit. Evidence should be
taken in a regular action and appropriate reliefs should be granted to the petitioners.
I cannot accept this contention of Mr. Chowdhury. The possibility of a protracted
litigation in which the company should be a party between rival groups of Directors,
is itself a matter of serious prejudice to the company and is one of the major
considerations for which this court should exercise its powers under sections 397 and
398. The purpose and object of the sections is to put an end to acts of oppression

and mismanagement promptly and speedily rather than allow the parties and the
company to be involved in a costly and protracted litigation. If the facts justify
interference by the court in exercise of its powers under the two sections and if the
conditions of the two sections are fulfilled, in my view the court ought not to relegate
the parties to a series of protracted and costly litigations. Such litigation is a mischief
which is bound to be prejudicial to the interest of the company, to prevent which
section 398 have been brought into existence, and the court ought not to allow such
litigation, if it can be stopped, in exercise of its powers under the two sections.
46. In my opinion, in an appropriate case, if circumstances justify and the requisite
conditions are fulfilled, there is nothing in the two sections, which prevent the court
from making an order under those two sections even though the application is moved
on behalf of the majority group which ceased to be an effective majority by reason of
the improper acts and manipulations of the minority. It is quite clear that a majority
of shareholders and also a majority in the Board of a company may become
absolutely powerless and ineffective by reason of the wrongful and ultra vires acts of
the rival group of minority share-holders. To hold that in such a case the court is
powerless to interfere, would be to defeat the very purpose for which the two
sections have been introduced in the Companies Act.
47. In this connection I should point out that sections 397 and 398 of the Companies
Act, 1956 correspond to section 210 of the English Companies Act, 1948. In the
English section substantially the same powers have been given to court. The heading
of the English section, however, is "Minorities". That seems to indicate that the
English section 210 was intended to be invoked in the case of minorities only. The
comments made in English textbooks that section 210 can be invoked only by
minorities seems to me to arise from the heading of the English Section. There is,
however, no such indication in sections 397 and 398 of the Companies Act 1956. Mr.
S. Sen argued that the comments in the English textbooks, to which reference was
made by learned counsel appearing for the respondents, arise because of the heading
in section 210 of the English Act. There is good deal of substance in Mr. Sen's
contention.
4 8 . Mr. R. Chaudhuri next referred to Buckley's notes in the 13th Ed. under
Regulation 98 of Table A. He argued that every Director is entitled to sufficient notice
of a meeting of the Board. But in this case it has become impossible to ascertain who
the Directors are because the Prosad group have purported to appoint two new
Directors at the Extraordinary general meeting of the company and are claiming that
they have been validly appointed. According to the petitioners, the appointment of
the two new Directors is wholly illegal and the alterations of the Articles is void.
Therefore, it is practically impossible to give notice to the properly appointed
Directors of the company. In my view Mr. R. Chaudhuri is right in his contention.
49. The whole object of the Prosad group was to deprive the petitioners of their
control and possession of the company's assets and also of their management of the
company's affairs. It was to realize this object that the alleged extraordinary general
meeting of the company was held. For reasons into which I need not go, for the
purpose of this application, the Prosad group wanted by some means or other to
obtain control of both the business and the management of the company. The scheme
which was put into effect for this purpose, was as diabolical in conception as it was
devastating in its effect and daring and swift in execution. By a single stroke of pen
the majority of the petitioners was reduced to a minority. The Extraordinary general
meeting not only authorised the issue of fresh shares but took the amazing step of

itself allotting the shares to different persons in complete disregard of the Articles of
the company. Under clause 5 of the Articles the shares of the company shall be under
the control of the Directors who may allot or otherwise dispose of the same. The
extraordinary general meeting had no right to allot the shares and its act in allotting
the shares is ultra vires of the Articles of the company, and is not binding on the
company. By another stroke of pen clause 19 of the Articles was altered by the said
meeting. The minimum was reduced to 2 so that the Prosad group can act to the
exclusion of the petitioners and the maximum was raised to 7 so that they may make
2 new appointments which they purported to make and thus become a majority of 4
to 3 in the Board. It is also noteworthy that the allottees of the new issue are all
alleged to be creditors of the company who were pressing for payment of their dues,
and because the company had no funds, it decided to discharge its debts to the
creditors by allotment of equity shares. One of these allottees, who was a creditor
pressing for payment of dues from the company, is no other than Rama Sankar
Prosad himself, the respondent No. 2, a share-holder and Director of the company. It
is indeed a strange transaction strangely executed. No application for shares made,
no consideration passed, but allotments made by adjustment of alleged dues. The
address of five out of nine of the allottees of new shares is the previous registered
office of the company namely 52/1, Dr. Abani Dutta Road, Howrah.
5 0 . The next question is why should the petitioners who were in the undoubted
position of majority shareholders and also of a majority in the Board, agree to be
reduced to a hopeless minority both in shareholding and also in the Board? Did they
put in more than Rs. 5 lakhs, only to be placed in the situation where their voice will
never be heard in the affairs of the company or did they put in their money to acquire
control of the company's affairs and management? Why should they abstain from
attending the extraordinary general meeting of which notices are alleged to have
been sent to them knowing quite well the nature of the business that was going to be
put through? In course of the arguments this question was put by me to the learned
counsel appearing for the respondents, but the explanation offered was that the
petitioners who are already in control of the business wanted to create an excuse, to
be able to say later on, that the extraordinary general meeting was illegal. This
explanation hardly bears scrutiny. Disputes had arisen between the two groups
before the extraordinary general meeting was alleged to have been held. Letters were
written accusing the petitioners of the acts of omissions. It is impossible to believe
the respondents' case that the petitioners in control of an absolute majority of shares
would deliberately stay away from an extraordinary general meeting which was going
to transact business in which the petitioners were vitally interested.
51. In these circumstances I cannot hold that the extraordinary general meeting of
the company was a lawful meeting. Nor can I hold that the business which was
purported to have been transacted and the resolutions passed, bind either the share-
holders or the company. Indeed Mr. S. Chowdhury quite rightly conceded that the
allotment of shares at the extraordinary general meeting was illegal. The motive for
the allotment is quite clear. I have no hesitation in holding that there was no
allotment of shares and the meeting that was purported to be held on February 21,
1963 was not an extraordinary general meeting of the company. The company is not
bound by the allotment of shares purported to have been made, nor have the
allottees acquired any rights by reason of the unlawful allotment of share by the
extraordinary general meeting.
5 2 . It was next contended on behalf of the respondents that nothing has been
alleged in the petition relating to the extraordinary general meeting and no relief can

be granted to the petitioners relating to anything done at the said meeting. Mr. R.
Chaudhuri contended that even though the allegations relating to the said meeting
have not been made in the petition he is entitled to appropriate relief. He referred to
the judgment of the Supreme Court in Srinibas Ramkumar v. Mahabir Prosad & Ors.
(5) (1951) II S.C.R. 277. In this case it was held that though the court would not
grant relief to the plaintiff on a case for which there was no averment in the
pleadings and which the defendant was neither called upon nor had any opportunity
to meet, yet if the alternative case which the plaintiff could have made, was not only
admitted by the defendant in his written statement but was put forward as an answer
to the plaintiff's claim, the court is entitled to give the plaintiff a decree upon the
case which the defendant himself makes. Mr. Chaudhuri relying upon this decision
contended that he is entitled to all reliefs relating the extraordinary general meeting
of the company as the Prosad group has set out all the facts relating to the meeting
in their affidavits-in-opposition. But Mr. S. Chowdhury contended that the judgment
of the Supreme Court is of no assistance to the petitioners. The Supreme Court
proceeded on the footing that the plaintiff could have made an alternative claim in
the plaint but they have not done so yet the defendant had admitted this alternative
claim. In the first place it is to be noted that the relief relating to the extraordinary
general meeting is by no means an alternative claim of the petitioners and in the
second place there is no question of admission of the petitioners' claim by the Prosad
group. The question of admission arises only when certain claim has been made or
could be made against a party. It is only in such a case that the party against whom
the claim is made or could be made, may admit that particular claim. But in the
instant case it cannot be said that the petitioners could have made any claim with
regard to the extraordinary general meeting in their petition as they were not aware
of it. In my view Mr. S. Chowdhury is right in his contentions and the Supreme Court
judgment does not assist Mr. R. Chaudhuri's clients.
53. In my opinion, this court cannot give any relief to the petitioners with regard to
the matters connected with the extraordinary general meeting. But I should at once
point out that although no relief can be granted to the petitioners regarding the
business alleged to have been transacted at the said meeting, this court is bound to
take notice of, and in fact it is the duty of the court to take notice of the allegations
made in the affidavits-in-opposition filed on behalf of the respondents, relating to the
said meeting. This court's notice having drawn to the circumstances in which the said
meeting has been held and the nature of the business that was sought to be
transacted, this court cannot shut its eyes to those allegations made to repel the
petitioners' claims. I have already expressed my views about the extraordinary
general meeting and also the legality and validity of the business sought to have
been transacted at the said meeting. The company may take such further action with
regard to the business purported to have been transacted as it may be advised. A
prayer was made that I should make an order in this application for rectification of
the share register of the company. But in my view such an order cannot be made in
this application. The Companies Act lays down the procedure for rectification of the
share register and the procedure should be followed.
54. Mr. S. Chowdhury next contended that an order under sections 397 and 398 can
be made only if the facts justify an order for winding up the company. Mr.
Chowdhury contended that an order under section 397 cannot be made unless a
winding up order is justified. In my opinion Mr. Chowdhury is right in his contentions
that an order under section 397 can be made only if the facts would justify a winding
up order.

55. In the facts of this case however I have no doubt that the situation is such that
but for sections 397, 398 of the Act, winding up would have been the only other
alternative. From the facts which I have discussed at length in the earlier portions of
this judgment, there can be no doubt that in this case deadlock is complete. There is
no doubt also that there is total lack of confidence of one group in the other and this
lack of confidence arises from commercial probity in the conduct of the company's
affairs. Being a private company the law relating to dissolution of partnership
applies. The law has been well settled since Loch v. John Blackwood (6) (1924) A.C.
783. The principles in Loch's case were approved and accepted by the Supreme Court
in Rajah-mundry Electric Supply Corporation Ltd. v. A. Nageswara Rao & Ors. (7)
(1955) 2 S.C.R. 1066. There can be no doubt that the lack of confidence of one
group of directors in the other group in this case arises from what Lord Shaw has
said, to be a lack of probity in the conduct of the company's affairs. That being so
there is no doubt that this is a case fit for a winding up order on the ground that it is
just and equitable to wind up the company. But such an order should not be made
having regard to the fact that the trading prospects of company are bright and
difficulties have been created only by the wrongful conduct of Directors of the
company. To make an order for winding up would certainly unfairly prejudice the
petitioners, who have put in over Rs. 5 lakhs in the company.
56. In the Rajahmundry Electric Supply Corporation's case the grounds on which the
relief was claimed were that the affairs of the company were being mismanaged, that
large amounts were owing to the Government for electricity charges, that Directors
had misappropriated the company's funds, that the Directors controlling the majority
were ignoring the rights of the other shareholders. The main prayer was for winding
and an alternative prayer was made under section 153-C of the Indian Companies Act
1913. The learned Trial Judge of the Andhra High Court held that it was a fit case for
winding up but also held that under the circumstances an order should be made
under section 153-C of the said Act and accordingly appointed Administrators. In
appeal, a Division Bench of the same High Court upheld the order of the learned Trial
Judge. The Supreme Court also upheld the order of the Division Bench of the Andhra
High Court. One of the grounds on which the Supreme Court upheld the orders of the
High Court was that the affairs of the company "were in a state of confusion and
embarrassment". The facts of the instant case disclose that confusion in the affairs of
this company is more serious and there is no prospect at all of the confusion being
cleared up by the conduct of the parties.
57. In the Great Indian Motor Works Ltd. v. Chandidas Nandi (8) 57 C.W.N. 220 a
Division Bench of this Court held that in the case of winding up of a private company
the court follows the same principle in winding up of a partnership. In the case of a
partnership a dissolution order is made if one partner acts dishonestly towards the
other or acts unfairly. Similarly if in a private company it appears that the Directors
of the company are more concerned with benefits to themselves than for the interest
of the company and are acting unfairly to the other Director and are seeking to
deprive him of all power and influence, a winding up order should be made. It was
also held in that case that if it appears to be impossible for the company to carry on
the business in future fairly and honestly and if there are prospects of disputes and
litigation and it had little ready cash in hand it would be just and equitable to wind
up the company.
58. It is now well settled that in the case of a private company, the law relating to
dissolution of a partnership applies, and therefore, the complete lack of confidence of
the two groups of Directors in each other taken together with all the other events

which have happened, would justify a winding up order being made on the just and
equitable ground.
5 9 . Mr. S. Chowdhury contended that this court should consider if the petition
discloses sufficient grounds for making a winding up order and that for this purpose
the court should look at the allegations in the petition. Mr. S. Chowdhury is right in
his contentions that this court will have to decide upon the allegations in the petition
only to see if a winding up order on the just and equitable ground is justified.
60. It appears from the petition that by reason of the raid at the company's factory
and the taking over of possession of its factory, business and assets and substratum
of the company is altogether gone. The only business of the company at Chasnala
has passed out of the hands of the persons who were duly authorised by the
company to be in charge and control of its business. It is also clear that there is no
prospect at all, of the company's recovering all its business and assets without
intervention of court. If the only business of the company is lost and there is no
prospect of recovery, then that by itself would be a sufficient ground for winding on
the just and equitable ground. Besides it is alleged in the petition, that the registered
office of the company has been duly transferred from one address to another, and a
rival group of Directors are openly denying that the registered office has been so
transferred and published advertisements in newspapers that the registered office
continued to remain at the old address namely 52/1, Dr. Abani Dutta Road. This state
of things discloses a complete lack of confidence of one group of Directors in the
other, and also discloses utter confusion and chaos in the company's affairs. In my
view this state of affairs would be enough to justify a winding up order on the just
and equitable ground.
61. Before proceeding to consider the other authorities that were cited, I should at
this stage refer to the statements in the affidavit of Ramasankar Prosad, the
respondent No. 2 affirmed on March 25, 1963. In paragraph 20 of the said affidavit
the respondent has stated, that after having failed to obtain redress of his alleged
grievances against the petitioners, the extraordinary general meeting was called, at
which the Articles were altered for increasing the number of Directors and 2113 new
shares were allotted to various parties. These averments in the affidavit make it quite
clear that the Prosad group wanted to tilt the balance of control in the Board in is
favour and also to deprive the petitioners of their majority. On the case made by the
respondents in the affidavits-in-opposition, quite clearly a material change has taken
place in the management and control of the company's affairs by reason of the
alterations sought to be made in the composition of the Board of Directors and also
in the ownership of the company shares as contemplated by section 398(1) (b) of the
Act. Therefore, on this ground also this court is entitled to make appropriate orders
on this application.
62. Mr. R. Chaudhuri next referred to the case of Chiranjitlal v. Union of India (9)
MANU/SC/0009/1950 : A.I.R. (1951) S.C. 41 in support of his contention that the
court can give relief to a party, although an appropriate prayer for the relief has not
been made. But that decision in my view, does not help Mr. R. Chaudhuri because
that was a case under Article 32 of the Constitution and it was held that under that
Article the court had very wide discretion in the matter of framing writs to suit the
exigencies of a particular case and an application cannot be thrown out because the
appropriate writ or direction has not been prayed for. Those observations were made
in connection with Article 32, which deals with enforcement of fundamental rights. In
my view those observations do not help Mr. R. Chaudhuri's clients in considering a

question of relief under the Companies Act 1956. If the necessary averments have not
been made in the petition under the Companies Act and the facts relating to the claim
have not been pleaded, this court in any event, is not entitled to grant relief with
regard to the matters which have not been pleaded at all.
63. Mr. Sankar Ghose also appearing for the company submitted that the words 'any
person' in sections 397 and 398 do not mean any and every person but certainly
mean a specified minority and none else. In support of this argument he referred to
the case of Metropolitan Board of Works v. London and N.W. Railway Co. (10) (1880)
14 Ch. 521. In this case it was held that the words "any person" in the Metropolis
Management Amendment Act 1862 must be construed to mean any person entitled to
the benefits of the Act and was limited to owners or occupiers within a certain area.
This case in my view has no application firstly because the construction was given
with reference to a particular statute and secondly because the point involved in the
instant case is whether the words "any person" includes a majority of shareholders
and there is no question in this case of any particular group or class or persons.
64. Mr. Ghose next referred to the judgment of the Supreme Court in the workmen of
Dimakuchi Tea Estate v. The Management of Dimakuchi Tea Estate, (11) (1958)
S.C.R. 602. In this case the question of the construction of the words "any person"
arose in connection with the Industrial Disputes Act 1947. It was held that "any
person" should be construed subject to two limitations namely, the dispute must be a
real dispute between the parties capable of settlement or adjudication and secondly
the person regarding whom the dispute is raised must be one in whose employment
or non-employment or conditions of labour the parties have a direct interest. In this
case again the words "any person" were construed with reference to the particular
statute and the interpretation was given with reference to workmen in an industrial
undertaking. This case also is of no assistance to Mr. Ghose.
65. Then next case cited by Mr. Ghose is Seth Kanahaya Lal v. The National Bank of
India Ltd., (12) 40 I.A. 56. This case was referred to in connection with the point of
demurrer argued by Mr. Ghose. He contended that the petition is demurrable and
therefore, no relief should be granted. His argument was that there are not sufficient
averments in the petition for relief under sections 397 and 398. I have already dealt
with the charges in the petition earlier in this judgment and it is not necessary for me
to deal with this point again except saying that the petition is not demurrable as
urged by Mr. Ghose.
66. Mr. Ghose next referred to the case of Motabhoy Mulla Essabhoy v. Mulji Haridas
(13) 42 I.A. 103. This case was referred to in support of Mr. Ghose's contention that
if the averments in the affidavits-in-opposition are to be treated as admission they
are to be accepted as a whole. I have already rejected Mr. R. Chaudhuri's contention
that the averments in the affidavit of the Prosad group should be treated as
admission and relief should be granted to the petitioners on that basis. It is
therefore, not necessary for me to deal with this question again.
67. Mr. Ghose next referred to the case of S.A. Hawken Ltd. (14) (1950) 2 A.E.R.
408 in support of his proposition that on a demurrer only the petition can be looked
at. That proposition is not disputed.
68. Mr. Ghose next referred to the case of Antigen Laboratories Ltd. (15) (1951) 1
A.E.R. 110 for the proposition that a petitioner seeking relief ought to state in the
prayer of the petition in clear terms the general nature of the relief sought. This very

question was considered by a Division Bench of the Madras High Court in Syed
Mohamad Ali v. R. Sundaramoorthy & Ors. (16) A.I.R. 1958 Mad. 587. This was an
application under section 397 and 398 of the Companies Act 1956.
69. In this case also the question had arisen whether relief could be given to the
petitioners because no appropriate prayer had been made. It was held at page 591 of
the report: "We are, therefore of opinion, that notwithstanding the omission in the
petition to pray for relief against the delinquent Directors, an enquiry to the charges
against them was properly within the scope of the petition". A similar question was
condered by the Supreme Court in Kedar Lal Seal v. Harilal Seal (17)
MANU/SC/0064/1951 : A.I.R. (1952) S.C. 47/52. In that case also one of the
questions was whether a relief could be granted because of inadequacy of pleading.
It was held at page 52 of the report: "I would be slow to throw out a claim on a mere
technicality of pleading when the substance of the thing is there and no prejudice is
caused to the other side, however clumsily or inartistically the plaint may be worded.
In any event, it is always open to a court to give a plaintiff such general or other
relief as it deems just to the same extent as if it had been asked for, provided that
occasions no prejudice to the other side beyond what can be compensated for in
costs." In that view of the matter I am of the opinion that if the allegations in the
petition contained all the material facts for an order, the absence of a prayer in the
petition would not debar this court from granting the appropriate relief. In this case,
however that question does not strictly arise inasmuch as all the necessary prayers
have been made in the petition.
70. I shall now refer to a few cases referred to by Mr. S.C. Sen. Mr. Sen referred to
the case of Rameswara Pro-sad Bajoria v. S.C. Law (18) MANU/WB/0208/1947 : 52
C.W.N. 188 in support of a proposition that to get redress for a wrong the share-
holders can sue in their own name only if the majority of shares are controlled by
those against whom relief is sought, and also for the proposition that majority of
shareholders can always come to court for relief. Mr. Sen's argument was that even
though the petitioners are in a majority they are not debarred from coming to Court
for relief.
71. The next case referred to by Mr. Sen is in the matter of Richardson v. Cruddas
Ltd. (19) MANU/WB/0194/1959 : 63 C.W.N. 439. In this case P.B. Mukharji, J.
directed the Special Officer appointed in an application under sections 397 and 398
of the Act, to take charge of the affairs of the company and remove all the members
of the Board of Directors and Managing Agents. This case was cited by Mr. Sen in
support of his proposition that the court can make any order to bring to an end the
matter complained of.
72. The next case cited by Mr. Sen is the case of Rai Charan Mondal v. Biswanath
Mondal (20) 20 C.L.J. 107. In this case Sir Ashutosh Mukherji held that a suit is to be
tried on the cause of action as it existed at the date of its commencement. There is
an exception to this Rule namely, that a court may take notice of events which have
happened since the inception of the suit and afford relief to the parties on the basis
of an altered condition. It was held that this doctrine applied in cases where it was
shown that the original relief claimed has, by reason of the subsequent change of
circumstances become inappropriate or that it was necessary to base the decision of
the court on the altered circumstances. Mr. Sen contended that this proposition of
law has been recently approved by a Division Bench of this court in Vidyasagar
Cotton Mills Ltd. v. Musst. Nazmunnessa Begum, (21) [unreported decision of the
Division Bench (Bachawat, J. & Arun Kumar Mukherjee, J.) in Appeal of 1962.] Mr. S.

Chowdhury contended that the proposition laid down in these two cases have no
application, to the instant case because in the two cases mentioned above the events
had happened subsequent to the filing of the suit. But in the instant case the events
had happened before the commencement of the proceedings and therefore, this
exceptional doctrine could not be applied to the facts of this case. In my view Mr.
Chowdhury is right and this court cannot give any relief to the petitioners on the
basis of the allegations in the affidavit-in-opposition. I have already dealt with this
subject earlier and it is not necessary for me to go into this matter again.
73. There is, however, one other case which was cited by Mr. S. Chowdhury to which
I should refer, and that is In re: Kuthbert Cooper & Sons Ltd. (22) (1937) 1 Ch. 392.
In this case a private company was formed, half the shares of which belonged to
Kuthbert Cooper and the other half to his two elder sons. The father and the two sons
were the first Directors. By his will the father appointed his three younger sons
executors thereof and bequeathed all of his shares equally between them. Under the
Articles the Directors were empowered to refuse to register any transfer. The
Directors refused to register the executors as beneficiaries under the will as members
of the company. The executors presented a petition for winding up of the company
on the just and equitable ground. It was held by Simonds, J. that though the
principles applicable to the case were those which should be applied in a suit for
dissolution of partnership, there were no grounds shown in the petition on which it
would be just and equitable to make a winding up order. In this case it is to be noted
that the petitioners were not members of the company and the Directors had the
absolute discretion to refuse registration of a transfer. In my view this case is not in
conflict with the decisions of the Judicial Committee in Loch v. Blackwood (6) which
was approved by the Supreme Court in the Rajahmundry Electric Supply
Corporation's case (7) nor is it in conflict with the law as discussed in the Great
Indian Motor Works Co. Ltd.'s case (8) all of which have been discussed by me
earlier in this judgment.
74. In the facts and circumstances of this case I have no hesitation in holding that
the affairs of the company are being conducted in a manner oppressive to the
petitioners. Matters relating to the company's affairs, its books of accounts and
statutory books and other material documents and particularly those relating to its
administration are such as would justify the making of a winding up order on the
ground that it was just and equitable that the company should be wound up: but to
make an order for winding up would unfairly prejudice the petitioners. I also hold
that the affairs of the company are being conducted in a manner prejudicial to the
interest of the company. In my opinion, appropriate orders should be made to bring
the state of things that exist to-day to an end, as early as possible.
7 5 . I hold that the meeting that was held on February 21, 1963 was not an
extraordinary general meeting of the company. The resolutions that were passed at
the said meeting are invalid and of no effect and are not binding either on the
company or the shareholders. I further hold that the purported issue of 2113 equity
shares and allotment thereof are invalid and the parties to whom the same were
allotted have acquired no rights as share-holders of the company. I further hold that
the alterations in the Articles of the company are of no effect and not binding on the
company or the share-holders. The appointment of Kedar Nath Bhagat and Biswanath
Prosad as Directors of the company is invalid.
76. I therefore, make the following orders:--

1. The Board of Directors of the company is superseded and an administrator
is appointed to take charge of the company's business and carry on the
same. All the powers of the Board of Directors will vest in the Administrator
appointed by this order.
2. The Administrator alone will be entitled to operate on the company's Bank
Accounts. But he will operate on such of the accounts as existed on or before
March 15, 1963 and not on any accounts opened subsequently by either
party.
3. The Administrator will be assisted by an Advisory Board consisting of two
members, one member from the petitioners' group and another member from
the Prosad group of Directors. The Administrator will not be bound to accept
any advice that may be given to him by the Board of Advisors.
4 . A Special Auditor is appointed to enquire into and make a report on the
following matters:--
(a) The quantities of raw materials obtained by either the petitioners
or the Prosad group of Directors, on behalf of the company under
any licence or quota rights or otherwise between January 1, 1962
and March 15, 1963.
(b) The dates on which the raw materials were obtained is to be
ascertained. If any of the raw materials obtained as aforesaid has
been disposed of or not duly accounted for in the company's books
who are the parties by whom such disposal has been made, on what
dates and at what prices?
(c) If the proceeds of disposal of the raw materials has not been
duly accounted for, who are the parties who have misappropriated or
are liable to account for the proceeds arising from disposal of raw
materials?
(d) Has the sale proceeds of the manufactured goods produced at
the company's factory been duly accounted for between January 1,
1962 and March 15, 1963? If not, who are the parties who are liable
to account for the same?
(e) The market value of the raw materials and manufactured goods
which may be found to have been disposed of by any party should
be ascertained. Such market value is to be determined on the basis
of the price on the dates of disposal.
(f) The enquiry and report by the Auditor should be confined to
matters, transactions, dealings and entries in the books between
January 1, 1962 and March 15, 1963.
5. Parties to this application are directed to render all possible assistance to
the Special Auditor in his enquiry and report by producing all papers,
documents, books of account that may be in their custody. Parties are further
directed to furnish such information to the Administrator and Auditor as
might be in their possession relating to the enquiry by the Auditor directed
by this order.

6. If necessary, parties are directed to assist the Special Auditor in obtaining
information from Hindustan Steel Ltd., Tata Iron & Steel Co. Ltd., Indian Iron
& Steel Co. Ltd., Director of Industries, Government of Bihar, District
Industrial Officer, Dhanbad, Iron & Steel Controller, Director-General of
Supplies and Disposals and such other Authorities as may be in a position to
furnish particulars to the Special Auditors.
7. The Special Auditor should make a report in writing to the Administrator
on or before January 31, 1964.
8. An extraordinary general meeting of the company should be called by the
Administrator to be held within eight weeks from the date of receipt of the
Report of the Special Auditor. The extraordinary general meeting should elect
a new Board of Directors. The Administrator will act as the Chairman of the
extraordinary general meeting.
9 . The Chairman should place before the share-holders present at the
Extraordinary General Meeting, the report of the Special Auditor. The
shareholders should decide what further action they would take on the basis
of the report of the Special Auditor.
1 0 . Within a fortnight from the election of the Board of Directors at the
extraordinary general meeting to be held under this order, the Administrator
should make over charge of the company's business, property, assets, and
books of account and other documents to the Board of Directors. Upon
making over such charge the Administrator will stand discharged.
1 1 . The Official Receiver is discharged from further acting as Receiver
subject to payment of his costs, charges and expenses. He should make over
all papers, documents, and books of account, vouchers, receipts, and any
other document that may be in his custody to the Administrator.
12. There will be an injunction restraining the alleged allottees of the 2113
equity shares purported to have been allotted to them from exercising any
voting rights or from claiming or exercising any other rights as such allottees
of those shares.
1 3 . I appoint Mr. Ajoy K. Basu, Barrister-at-Law, as Administrator at a
remuneration of 60 G.M.s. per month from the date he takes possession and
charge. The remuneration of the Administrator to be paid out of the assets of
the company. The Administrator would also be entitled to travelling expenses
and costs of board and lodging if he visits the company's factory at Chasnala.
14. I appoint Mr. C.P. Mukherjee, Chartered Accountant of Messrs. P.K. Mitra
& Co., to be the Special Auditor. The remuneration of the Special Auditor is
fixed at Rs. 2500/- to be paid by the Administrator out of the assets of the
company.
1 5 . The Administrator, the Special Auditor, the Official Receiver and all
parties are directed to act on a signed copy of the minutes upon the
petitioners' undertaking to have this order drawn up, completed and filed.
The petitioners will be entitled to the costs of this application from the respondents
Nos. 2, 3 and 4.

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In Re Sindhri Iron Foundry P LTD 19091963 CALHCW630218COM59820

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MANU/WB/0307/1963

Equivalent Citation: 68CW N118

IN THE HIGH COURT OF CALCUTTA

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