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Issues Involved:
1. Validity of the petition under Section 61(2) of the Companies Act, 1929. 2. Requirement of written authority for the petitioner. 3. Timing and communication of the authority to the petitioner. 4. Interpretation of Section 61(2) regarding retrospective ratification. 5. Court's jurisdiction to strike out petitions. Detailed Analysis: 1. Validity of the Petition under Section 61(2) of the Companies Act, 1929 The core issue revolves around whether the petitioner, Mr. Lewisohn, satisfied the requirements of Section 61(2) of the Companies Act, 1929, which mandates that an application to cancel the variation of rights must be made within seven days of the resolution and must be backed by written authority from shareholders holding not less than 15% of the shares of the concerned class. 2. Requirement of Written Authority for the Petitioner The judgment emphasizes that the petitioner did not have the written authority from the required shareholders at the time of presenting the petition. It is conceded that although the shareholders had signed documents conferring authority, this fact was unknown to the petitioner when he presented the petition. The court held that the petitioner must be clothed with the authority in writing at the date of presenting the petition. 3. Timing and Communication of the Authority to the Petitioner The court stressed that the authority must not only be in writing but also communicated to the petitioner. The judgment refers to the decision in Re Suburban and Provincial Stores Ltd., which established that the petitioner must have the written authority of other qualified shareholders at the date of the presentation of the petition. The court found that merely having signed documents without the petitioner's knowledge does not meet the statutory requirements. 4. Interpretation of Section 61(2) Regarding Retrospective Ratification The judgment rejects the argument that authority obtained after the presentation of the petition could operate retrospectively. The court cited Lord Greene, M.R.'s interpretation in Re Suburban and Provincial Stores Ltd., which stated that the section does not contemplate ex post facto ratification. The petitioner must have the authority at the time of instituting the proceedings, and the title to sue must be shown on the face of the petition. 5. Court's Jurisdiction to Strike Out Petitions The court acknowledged that it must exercise caution when striking out petitions, ensuring that the petition cannot possibly succeed. However, given the clear statutory requirements and the petitioner's failure to meet them, the court found it appropriate to strike out the petition. The court referred to the reasoning in Netz v. Ede, which supports the view that the court should not stay proceedings if the sole question is a straightforward statutory interpretation. In conclusion, the court held that Mr. Lewisohn did not meet the statutory requirements of Section 61(2) of the Companies Act, 1929, as he lacked the necessary written authority communicated to him at the time of presenting the petition. Consequently, the court granted the company's motion to strike out the petition.
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