1989 (3) TMI 332 - HC - Companies Law

Meetings and Proceedings Circulation of members resolution, Explanatory statement to be annexed to notice, Directors - Right of person other than retiring director to stand for directorship

Summary

Issues Involved:
1. Compliance with Section 257 of the Companies Act, 1956.
2. Compliance with Section 188 of the Companies Act, 1956.
3. Relationship between Sections 257 and 188 of the Companies Act.
4. Applicability of Section 173 of the Companies Act, 1956.
5. Petitioner's right to propose a director's candidature.
6. Legal precedents and their applicability.

Detailed Analysis:

1. Compliance with Section 257 of the Companies Act, 1956:
The petitioner, Gopal Vyas, filed a suit under Order I, rule 8 of the Code of Civil Procedure to propose the candidature of Navin Chand Suchanti for the office of a director at the annual general meeting of Sinclair Hotels and Transportation Ltd. Section 257 of the Companies Act, 1956, provides that a person who is not a retiring director can be appointed as a director at any general meeting if a notice in writing is given at least fourteen days before the meeting. The company is then required to inform its members of such candidature at least seven days before the meeting.

2. Compliance with Section 188 of the Companies Act, 1956:
The company refused to comply with the petitioner's proposal, citing non-compliance with Section 188, which deals with the circulation of members' resolutions. Section 188 requires that a resolution be proposed by members representing not less than one-twentieth of the total voting power or by not less than one hundred members.

3. Relationship between Sections 257 and 188 of the Companies Act:
The court determined that Section 257 is an independent provision and is not subject to Section 188. Section 257 specifically provides a right to an individual member to give notice for the appointment of a director, whereas Section 188 deals with the circulation of members' resolutions and requires a specific percentage of shareholding. The court noted that the Legislature did not intend for Section 257 to be subject to the procedural requirements of Section 188.

4. Applicability of Section 173 of the Companies Act, 1956:
Section 173, which requires an explanatory statement to be annexed to the notice of a meeting for special business, was deemed unnecessary in this case. The court held that the transaction proposed by the petitioner was ordinary business, not special, as it involved the appointment of a director in place of those retiring, which is an item of ordinary business at an annual general meeting.

5. Petitioner's Right to Propose a Director's Candidature:
The court affirmed that the petitioner, whose name appeared in the register of shares, had the right to propose a director's candidature under Section 257. The ongoing proceedings challenging the petitioner's membership did not affect this right, as the Supreme Court had ordered that no effect be given to any orders in these proceedings until a final decision was made.

6. Legal Precedents and Their Applicability:
The court distinguished the case from Pedley v. Inland Waterways Association Ltd. [1977] 1 All ER 209 (Ch D), which involved the removal of a director and did not confer any power on an individual member to require a resolution to be included in the agenda. The court also referenced Indian Cable Co. Ltd. v. Sumitra Chakraborty, AIR 1985 Cal 248, emphasizing that relief should be granted in exceptional cases. Additionally, the court cited LIC of India v. Escorts Ltd. [1986] 59 Comp. Cas. 548, noting that shareholders have the right to propose resolutions without disclosing reasons, provided statutory procedures are followed.

Conclusion:
The court directed the company to consider the petitioner's notice in accordance with law at its fourteenth annual general meeting. The meeting, initially scheduled for March 18, 1989, was rescheduled to April 20, 1989, to comply with the requirement of giving clear 21 days' notice. A stay of the operation of the order was granted for a fortnight upon the company's request.