1974 (4) TMI 59 - HC - Companies Law

Memorandum of association - Special resolution and confirmation by CLB required for alteration of, Length of notice for calling meeting

Summary

Issues Involved

1. Validity of the special resolution passed without the required twenty-one days' notice.
2. Whether the court should confirm the resolutions for changing the registered office of the company.

Issue-Wise Detailed Analysis

1. Validity of the Special Resolution Passed Without the Required Twenty-One Days' Notice

The petitioner-company sought confirmation of a special resolution to change its registered office from Bihar to West Bengal. The Registrar of Companies objected, citing non-compliance with the twenty-one days' notice requirement under Section 171(1) of the Companies Act, 1956. The company later obtained post-consent from shareholders holding more than ninety-five percent of the paid-up share capital, ratifying the resolutions.

Legal Provisions Considered:
- Section 17(1) and (2): Allows alteration of the memorandum to change the registered office, subject to court confirmation.
- Section 189(2): Defines a special resolution and the notice requirements.
- Section 170(1): Mandates compliance with Sections 171 to 186 for general meetings.
- Section 171(1) and (2): Specifies the twenty-one days' notice requirement and conditions for shorter notice with consent.

Court's Analysis:
- The notice for the meeting was given on April 20, 1973, for a meeting on May 8, 1973, falling short of the required twenty-one days.
- Post-consent was obtained from 226 out of 277 equity shareholders, representing more than ninety-five percent of the equity shares.
- Preference shareholders did not have voting rights at the meeting as no dividend was unpaid for two years, per Section 87(2).

Precedents and Case Law:
- In re Pearce Duff & Co. Ltd. [1960] 1 WLR 1014: Validated resolutions with post-consent.
- Parker and Cooper Ltd. v. Reading [1926] Ch 975: Validated intra vires transactions with unanimous shareholder consent.
- In re Oxted Motor Co. Ltd. [1921] 3 KB 32: Allowed waiver of formal notice requirements by unanimous shareholder agreement.
- Self Help Private Industrial Estate (P.) Ltd., In re [1972] 42 Comp Cas 605 (Mad): Validated resolutions with post-consent from all shareholders except one.

Conclusion on Validity:
The court found that the subsequent consent by shareholders holding more than ninety-five percent of the voting rights validated the resolutions. The court agreed with the precedent that post-consent could cure the defect of inadequate notice.

2. Whether the Court Should Confirm the Resolutions

Company's Argument:
- The company argued that relocating the registered office to Calcutta would enhance administrative efficiency and reduce costs. The majority of commercial transactions and legal consultations were already conducted in Calcutta.

Court's Consideration:
- The court emphasized that the company is the best judge of its business operations.
- No objections were raised by the Registrar of Companies or any other party questioning the bona fides of the resolution.
- The company owed roughly two lakhs of rupees to sundry creditors, but no debentures were issued.

Legal Requirement:
- Section 17(3): The court must ensure that creditors' interests are protected, either by obtaining their consent or securing their claims.

Conclusion on Confirmation:
The court decided to confirm the resolutions conditionally, requiring the company to discharge or secure all creditor debts within two months and file an affidavit to that effect.

Final Judgment

The court confirmed the special resolutions passed by the petitioner-company, subject to the condition that the company discharges or secures the debts of all its creditors to the court's satisfaction within two months.