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TMI Blog1983 (12) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff that the plaintiff has a cause of action as mentioned in the plaint and that there is nothing improper on the part of the plaintiff to file the suit of the type which is before me in this appeal. It would, therefore, be necessary for me to consider the rival contentions in order to find out as to whether a prima facie case is made out by the plaintiff for getting an ex parte ad interim injunction. However, I would like to make it clear that observations in this judgment are primarily made with a view to decide this interim proceeding about the correctness or otherwise of the grant of ex parte ad interim injunction. Before going into the merits of the appeal, I would like to consider the preliminary objection raised on behalf of the respondent that an ex parte ad interim injunction is not appealable. Order XLIII, rule 1 ( r ), provides that the order under rule 1, rule, 2, rule 2A, rule 4 or rule 10 of Order XXXIX is appealable. Here the relevant rule is rule 1 and rule 2. It was contended by Shri Gursahani for the respondent that an ex parte ad interim injunction is liable to be discharged, varied or set aside under rule 4 and such an order is to be made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary to narrate a few facts. There are two companies incorporated under the Companies Act. The Brooke Bond India Ltd. (hereinafter referred to as "the Brooke Bond") is one of such companies while Centron Industrial Alliance Ltd. (hereinafter referred to as "the Centron") is another company. The registered offices of the Brooke Bond and the Centron are, respectively, at Calcutta and Bombay. Section 391 of the Companies Act deals with the power of a company to compromise or to make arrangement with its creditors and the members. Whenever an application for this purpose is made to the court, the court directs or orders that a meeting of the concerned persons be called and it is necessary that a resolution about the compromise or arrangement is passed in that meeting with requisite strength as mentioned in sub-section (2) of section 391. Such a compromise or arrangement, if sanctioned by the court, would be binding on all. Sub-section (3), however, provides that the sanction by the court shall have no effect until a certified copy of the order has been filed with the Registrar. The more relevant section, however, is section 394. It deals with the amalgamation of two-companies. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report, auditors' report, adopting the accounts including the balance-sheet, the profit and loss accounts, declaration of dividend, etc . In Suit No. 6778 of 1983, filed in the trial court, the plaintiff contended that the Brooke Bond was not entitled to hold such an annual general meeting or to take decision on the subjects mentioned above. It is in this suit that the notice of motion was taken out for restraining the Brooke Bond from holding a meeting and passing resolutions on the above-mentioned subjects. The plaintiff-respondent has alleged in the plaint that though he is a member of the Centron, he has become a member of the Brooke Bond on account of certain averments that are made in the plaint. In substance, those averments are with respect to the amalgamation scheme passed by the Brooke Bond and the Centron and the pendency of the applications under sections 391-394 of the Companies Act for sanction of the scheme by the court. It is with the help of these averments that the plaintiff has contended that he is a shareholder of the Brooke Bond. In para 2 he has contended that under the Companies Act, he, as a member of the Brooke Bond, is entitled to a notice of an annual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nual general meeting. It is needless to say that the mere pendency of amalgamation proceeding in the court would not enable a member of a transferor-company to become a member of the transferee-company, i.e ., Brooke Bond. The proposal of amalgamation is required to be sanctioned by the court. Even after such sanction, the scheme does not become immediately operative as there are certain approvals that are needed. Another grievance of Shri Setalwad is with respect to the contents of paras. 11 12 of the plaint. In para. 11, the plaintiff has alleged that, not to leave any doubt as to the operation of the scheme and its binding character, Kamal Kanjilal, the senior general manager of the Brooke Bond has made an affidavit in this court (in Company Petition No. 133 of 1983). After saying so, the plaintiff has reproduced a part of the affidavit. The said reproduction reads as follows : "I submit that the creditors and shareholders of Centron having voted in favour of the said Brooke Bond scheme with the statutory majorities, the said Brooke Bond scheme constitutes a binding contract between the secured creditors, unsecured creditors, shareholders of Centron and Centron itself on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Brooke Bond, the plaintiff's rights would be prejudicially affected in case the amalgamation scheme is sanctioned. Much reliance was placed on the fact that under the scheme a transfer date has been fixed as June 30, 1980. However, this would not be correct as the scheme states that the transfer date would be June 30, 1980, or such other date as the High Courts of Bombay and Calcutta may direct. In my opinion, the plaintiff's contention cannot be accepted that with effect from June 30, 1980, he shall rank pari passu with the rest of the shareholders of the Brooke Bond. This is obviously so for two reasons. In the first place, the date June 30, 1980, is not an irrevocable date inasmuch as the High Courts of Bombay and Calcutta can fix any other date for transfer. The other important reason is that by no stretch of imagination the plaintiff can have any interest in the affairs of the Brooke Bond so long as the amalgamation scheme has not been sanctioned. Shri Setalwad has criticised the conduct of the plaintiff by submitting that he has made a mischievous attempt for seeking certain temporary orders particularly when the plaintiff had no legal basis. He also urged that it is for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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