1958 (5) TMI 26 - HC - Companies Law

Powers of Court to rectify register of members and Shares of shareholders dissenting from scheme or contract approved by majority Power and duty to acquire

Summary

Issues Involved:
1. Maintainability of the petition after the previous petition under section 395 was dismissed as withdrawn.
2. Validity of the alleged scheme under section 395.
3. Suitability of the case for summary trial under section 155.
4. Whether the application is barred by time.

Detailed Analysis:

1. Maintainability of the Petition:
The court examined whether the current petition under section 155 of the Companies Act, 1956, was maintainable given that a previous petition under section 395 was dismissed as withdrawn. The court noted that the allegations in both petitions were identical, though the relief sought was different. The court emphasized that section 395 provides a specific remedy for dissenting shareholders, which must be invoked within the prescribed period. The court concluded that the petitioners could not seek relief under section 155 after failing to pursue the remedy under section 395, as the removal of their names from the register was not "without sufficient cause."

2. Validity of the Alleged Scheme:
The petitioners contended that the scheme for the compulsory acquisition of shares was invalid and not a proper scheme within the ambit of section 395. The court analyzed the scheme and found it to be in accordance with section 395, noting that it had been approved by a majority of 99 percent of the shareholders. The court referred to the principles established in previous cases, such as In re Hoare and Company Limited and Government Telephones Board Ltd. v. Hormusji Manekji Seervai, which emphasized that the onus is on the dissenting shareholders to prove the scheme's unfairness. The court found no evidence of misrepresentation or unfair dealing and concluded that the scheme was valid.

3. Suitability for Summary Trial:
The court considered whether the case was fit for summary trial under section 155. It noted that the jurisdiction under section 155 is wide but discretionary. The court held that relief under section 155 could not be granted when a specific remedy under section 395 was available and had been sought but later withdrawn. The court emphasized that section 155 is not an additional or alternative remedy to section 395.

4. Application Barred by Time:
The court addressed the respondents' preliminary objection that the petition was barred by time. It reiterated that section 395 prescribes specific periods of limitation for taking steps and provides a remedy for dissenting shareholders within one month from the notice date. The court found that the petitioners had not availed themselves of this remedy within the stipulated time and thus could not claim relief under section 155 on the grounds of timeliness.

Conclusion:
The court dismissed the petition with costs, concluding that:
- The petition was not maintainable after the withdrawal of the previous petition under section 395.
- The scheme was valid and in accordance with section 395.
- The case was not fit for summary trial under section 155.
- The application was barred by time.

The court emphasized that the removal of the petitioners' names from the register was not "without sufficient cause" and that section 155 could not be used to bypass the specific remedy provided under section 395.