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TMI Blog1985 (2) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... 968 of 1984 in Special Appeal No. 2 of 1982 en its file. The dispute involved in this case relates to the validity of an extraordinary general meeting of the Swadeshi Polytex Ltd. (hereinafter referred to as "the Polytex Company"), a company governed by the Companies Act, 1956 (hereinafter referred to as "the Act"), held pursuant to a notice dated February 11, 1984, issued under section of the Act by some of its members. The controlling interest in the Swadeshi Cotton Mills Co. Ltd. (hereinafter referred to as "the Cotton Mills Company") which is also governed by the Act was acquired by Mangturam Jaipuria and his family in 1946. Sitaram Jaipuria is the adopted son of Mangturam Jaipuria. After his adoption, Mangturam Jaipuria got a natural son, Rajaram. In or about the year 1964, Sitaram Jaipuria became the chairman and managing director of the Cotton Mills Company. In 1970, the Jaipuria family decided to promote another company and accordingly the Polytex Company was established. In 1970, Rajaram became the managing director of the Cotton Mills Company and Sitaram continued as its chairman. Sitaram became the chairman and managing director of the newly established Polytex Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the mills, it is just and proper that a receiver be appointed for the mills at Kanpur, belonging to M/s Swadeshi Cotton Mills Co. Ltd. Now, therefore, I, K. K. Bakshi, Collector, Kanpur, in exercise of the power under sub-section (1) of section 182A of the U.P. Land Revenue Act of 1901 read with section 5 of the U.P. Government Electrical Undertakings (Dues Recovery) Act, 1958, do hereby appoint Shri L. N. Batra, A.D.M., Kanpur, as receiver of the said mills belonging to M/s Swadeshi Cotton Mills Co. Ltd., for a period of six months with immediate effect and direct that the receiver shall exercise the following powers : 1.The receiver shall exercise supervision over the sales of products of the said mills and the disbursement of receipts from day to day . 2.That the receiver shall ensure that the receipts of the said mills are, after the payment of labour dues and other essentials for the running of the mill, appropriated towards recoverable arrears against M/s Swadeshi Cotton Mills Co. Ltd. as land revenue. 3.That the receiver shall, if necessary, for the running of the said mills borrow money from State Government or other financial institutions and make other appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Kanpur On the same date, i.e ., on October 27, 1977, the receiver pledged 1 lakh of shares as per the order of the Collector in favour of the Government of Uttar Pradesh against a loan of Rs. 135 lakhs. The receiver also took possession of 9 lakhs shares as per the order made under section 149 of the Land Revenue Act. Subsequently, the receiver pledged on November 9, 1977, 1 lakh shares out of the above 9 lakhs shares in favour of the Government of Uttar Pradesh against a loan of Rs. 15 lakhs and on January 4, 1977, 15 lakhs shares against a further loan. Thus, out of the 10 lakhs shares of the Polytex Company of the face value of Rs. 1 crore held by the Cotton Mills Company, 35 lakhs shares stood pledged in favour of the Government of Uttar Pradesh and the remaining 65 lakhs shares of the face value of Rs. 65 lakhs remained with the receiver. The events which have led to this appeal are, however, these : In the year 1976, the Cotton Mills Company filed a petition under sections 397 and 398 of the Act against the Polytex Company alleging oppression and mismanagement of the Polytex Company by Sitaram Jaipuria and other directors of the Polytex Company in Company P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi Polytex Ltd. and in respect of whose appointment, special notices have been received from some members indicating their intention to appoint Dr. Rajaram Jaipuria as a director of the company. 8.RESOLVED that Shri P. B. Menon be and is hereby removed from the office of director of Swadeshi Polytex Ltd. 9.RESOLVED that in the vacancy caused by the removal of Shri P. B. Menon, Shri R. D. Thapar, be and is hereby appointed as a director of Swadeshi Polytex Ltd. and in respect of whose appointment, special notices have been received from some members indicating their intention to appoint Shri R. D. Thapar as a director of the company." The requisitionists of the meeting also asked the Polytex Company to treat the said notice as a special notice under section 284(2) and (5) read with section 190 of the Act for appointment of Sitaram Singhania, Rajaram Jaipuria and R. D. Thapar in place of Ashok Jaipuria, B. M. Kaul (who was also the chairman of the Cotton Mills Company) and P. B. Menon respectively as directors of the Polytex Company. They enclosed an explanatory statement as required by section 173 of the Act to the notice containing reasons for moving the aforesaid resolutions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectors as the nominee of I.F.C.I, was appointed as the chairman of the meeting by the Division Bench on March 23, 1984. The meeting was, however, adjourned as a shareholder had obtained on order of temporary injunction restraining the holding of the meeting in a suit filed by him at the Court of the Munsif, Alipore (West Bengal). When the requisitionists applied to the High Court of Allahabad to fix a fresh date for the meeting, the High Court declined to do so by its order dated May 22, 1984, because the temporary injunction order had been issued by a court not subordinate to it. It appears that another shareholder applied for injunction in a suit filed in the Civil Judge's Court at Gwalior and a third shareholder moved the City Civil Court, Madras, for a similar relief. Then the requisitionists filed two special leave petitions before this court against the order of the Allahabad High Court dated May 22, 1984. On June 20, 1984, this court passed the following order on the said petitions which were numbered as Civil Appeals Nos. 2597 and 2598 of 1984: "Special leave granted. The High Court of Allahabad shall make a fresh order directing the holding of the meeting of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt passed the following order on September 14, 1984: "All the learned counsel for the parties in this petition agree that the meeting which is now adjourned to September 24, 1984, should be held on that day and the agenda of the meeting should be discussed and voted upon. We make an order accordingly. The result of the voting shall be reported to this court by the chairman within one week after it is ascertained. The resolutions passed at the meeting shall not come into effect until further orders by this court. The matter may be listed in the third week of October, 1984." After the report submitted by the chairman of the meeting was received by this court, this court passed a further order on October 12, 1984, which reads as follows : "The report of the chairman of the extraordinary general meeting which has been submitted to this court in a sealed cover is opened and perused by the court. The report states that all the resolutions other than the resolution for adjournment have been lost. The photo stat copies of the report along with the enclosures may be made available to the parties at their expense. List the matter on 29-10-1984 before this Bench." After the above orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs shall jointly carry on the management of SPL and will have all the powers of the managing director and control of finance, If any difference of opinion arises, it shall be referred to the board of directors. ( b )All committees of the board shall stand dissolved. 3.SRJ shall continue as the managing director of the company and he voluntarily undertakes not to exercise any powers or functions of the managing director till his re-election at the next annual general meeting of SPL. 4.SRI will continue to be the chairman of the company and as such will preside over the board meetings of SPL. He voluntarily undertakes not to have any second or casting vote. 5.All minutes of the board meetings shall be prepared by a nominee of the financial institutions and shall be signed by the chairman. 6.The next annual general meeting of SPL shall be called and held on May 15, 1985. The chairman of the said annual general meeting shall be appointed by this court.' 7.All the members of the reconstituted board appointed pursuant to clause 1 above (excluding nominees mentioned in clause 1( a ) (including non-rotational directors, i.e ., SRJ and/or Shri F. R. Beshania, shall resign and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a requisitionist of a meeting under section 169 of the Act or to vote at a meeting of the company since it was likely that one or the other member might raise it as an issue at the next meeting. We shall, therefore, proceed to decide the said question by this judgment. The principal ground urged on behalf of the appellants is that the extraordinary general meeting had not been validly called since the Cotton Mills Company had ceased to enjoy the privileges of a member of the Polytex Company by reason of the appointment of a receiver by the Collector of Kanpur in respect of the ten lakhs shares in the Polytex Company held by the Cotton Mills Company, the attachment of the nine lakhs shares out of the said 10 lakhs shares and also the pledge of 3,50,000 shares out of the said 10 lakhs shares with the Government of Uttar Pradesh as security for the loans advanced by it. The total paid-up equity share capital of the Polytex Company is Rs. 3,90,00,000 (39,00,000 shares of Rs. 10 each) and it is not disputed that if the 10 lakhs shares held by the Cotton Mills Company are omitted from consideration, the remaining requisitionists would not have sufficient voting strength to issue a noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of section 153B of the Act. It is clear from the relevant provisions of the Act which are referred to hereafter that a member can participate and exercise his vote at a meeting of a company in accordance with the Act and the articles of association of the company. Section 41 of the Act defines the expression "member" of a company. The subscribers to the memorandum of association of a company shall be deemed to have agreed to become members of the company and on its registration shall be entered as members in its register of members. A subscriber to the memorandum is liable as the holder of shares which he has undertaken to subscribe for. Any other person who agrees to become a member of a company and whose name is entered in its register of members shall be a member of the company. In his case, the two conditions, namely, that there is an agreement to become a member and that his name is entered in the register of members of the company are cumulative. Both the conditions have to be satisfied to enable him to exercise the rights of a member. Subject to section 42 of the Act, a company or a body corporate may also become a member. When once a person becomes a member, he i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Act, the expressions "a member", "a shareholder" or "holder of a share" are used as synonyms to indicate the person who is recognised by a company as its owner for its purposes. What does ownership of a share connote? "Ownership in its most comprehensive signification", says Salmond, "denotes the relation between a person and any right that is vested in him. That which a man owns in this sense is a right." The right of ownership comprises benefits like claims, liberties powers, immunities and privileges and burdens like duties, liabilities, disabilities, etc . Whatever advantages a man may have as a result of the ownership of a right may be curtailed by the disadvantages in the form of burdens attached to it. As observed by Dias, an owner may be divested of his claims, etc ., arising from the right owned to such an extent that he may be left with no immediate practical benefit. He remains the owner none the less because his interest will outlast that of other persons in the thing owned. The owner possesses that right which ultimately enables him to enjoy all rights in the thing owned by attracting towards himself those rights in the thing owned which for the time being belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llection of the rents and pro fits thereof, the application and disposal of such rents and profits, and the execution of documents, as the defaulter himself has or such of those powers as the Collector thinks fit. (2) Nothing in this section shall authorise the Collector to remove from the possession or custody of property any person whom the defaulter has not a present right to remove. (3) The Collector may from time to time extend the duration of appointment of the receiver. (3A) No order under sub-section (1) or sub-section (3) shall be made except after giving notice to the defaulter to show cause, and after considering any representations that may be received by the Collector in response to such notice : Provided that an interim order under sub-section (1) or sub-section (3) may be made at any time before or after the issue of such notice : Provided further that where an interim order is made before the issue of such notice, the order shall stand vacated if no notice is issued within two weeks from the date of the interim order. (4) The provisions of rules 2 to 4 of Order XL, contained in the First Schedule to the Code of Civil Procedure, 1908, shall apply in relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... register of members cannot exercise any of those rights unless in a proceeding to which the company concerned is a party and an order is made therein. In R. Mathalone v. Bombay Life Assurance Co. Ltd. [1954] 24 Comp. Cas. 2 ; AIR 1953 SC 385 ; [1954] SCR 117, it has been laid down clearly that a receiver appointed by a court in respect of certain shares which had not been duly entered in the register of members of the company concerned as belonging to him could not acquire certain newly issued shares which could be obtained by the members of the company. This court observed at page 21 of 24 Comp. Cas. thus : "Mr. Pathak argued that the plaintiff was entitled to reliefs ( a ) and ( b ) both in his suit as well as in the receiver's suit and that the receiver's suit was wrongly dismissed by the High Court. We are unable to agree. In our opinion, the High Court rightly held that the receiver appointed in the suit of Sir Padampat could not acquire the newly issued shares in his name. That privilege was conferred by section 105C only on a person whose name was on the register of members. The receiver's name admittedly was not in the register and the company was not bound to entert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e against the company, if the transferor retains the money in his own hands and fails to pay it to him. A glance at the scheme of the Indian Companies Act, 1913, shows that the words 'member', 'shareholder', and 'holder of a share' have been used interchangeably in that Act. Indeed, the opinion of most of the writers on the subject is also the same. Buckley on the Companies Acts, 12th edition, page 803, has pointed out that the right of a transferee is only to call upon the company to register his name and no more. No rights arise till such registration takes place." In this case, this court followed the dictum of Chitty J. in Wala Wynaad Indian Gold Mining Co., In re [1882] 21 Ch 849 (Ch D) which emphasised that the entry of the name of person in the register of members was an essential condition for exercising voting rights at the meeting of the company concerned. In Buckley on the Companies Acts (14th edn.), vol. I, p. 972, it is stated thus : " Company cannot enquire into beneficial ownership. As between the shareholder and the company, the person entitled to exercise the right of voting is the person legally entitled to the shares, the member whose name is on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions the trustee in bankruptcy may be able to secure registration of himself as the proprietor of the shares. Unless and until that is done, and as long as the bankrupt remains on the register of the company, he remains a member in respect of those shares and is entitled, as it seems to me, to exercise the votes which are attributable to that status, notwithstanding that he has no longer any beneficial interest in the shares and that the company is entitled to pay any dividends to his trustee in bankruptcy." The following statement in Kerr on Receivers (13th Edn.) at page 310 : "the power of the company and its directors to deal with the property comprised in the appointment (both property subject to a floating charge and property subject to a fixed charge), except subject to the charge, are paralysed", which was relied on by the appellants, is not of much use to them. It only means that the authority competent to appoint a receiver may give directions regarding the property. It does not imply that the right of the company to exercise the right to vote on the basis of the shares of another company held by it at the meeting of such other company becomes automatically suspend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, where any shares in a company are held in trust by a person as trustee, the rights and powers (including the right to vote by proxy) exercisable at any meeting of the company or at any meeting of any class of members of the company by the trustee as a member of the company cease to be exercisable by the trustee as such member and become exercisable by the public trustee. Section 187C of the Act makes it incumbent upon a person whose name is entered in the register of members of a company but who does not hold the beneficial interest in the share in question in such form as may be prescribed make a declaration to the company specifying the name and other particulars of the person who holds the beneficial interest in such share. The Companies (Declaration of Beneficial Interest in Shares) Rules, 1975, are made in this connection. It is obvious from the foregoing that none of the provisions referred to above has any bearing on the question before us. Mere appointment of a receiver in respect of certain shares of a company without more cannot, therefore, deprive the holder of the shares whose name is entered in the register of members of the company the right to vote at the meeti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll other rights of the judgment-debtor remain unaffected even if the shares may have been seized by on officer of the court under rule 43 of O. 21 of the CPC, 1908, for the purpose of effecting the attachment, or through a receiver or through an order in terms of rule 46 of O. 21 of the CPC which may have been served on the judgment-debtor or on the company concerned. On behalf of the appellants, relying upon the decision in Hawks v. Me Arthur [1951] 1 All. ER 22, it is contended that the order of the Collector attaching the shares was in the nature of a charging order which deprived the Cotton Mills Company of its rights in them. Having carefully gone through the said decision, we find that it has not much relevance to the case. In that case, the chairman and the manager of a company had purchased certain shares of the company held by one of its members in two separate lots after paying consideration there for contrary to article 13 of the company's articles of association which granted a right of pre-emption to all the other members in respect of the shares in question. 'Immediately after the said purchases were made, another member of the company obtained a money decree ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e creditor with security, in whole or in part, over the property of the debtor. It makes the creditor a secured creditor who having obtained his charging order must proceed, as may be necessary according to the nature of the property charged, to enforce his charge in order to obtain the actual proceeds of his charge to satisfy his judgment, in whole or in part. Subject to the other provisions of law, a charge imposed by a charging order will have effect and will be enforceable in the same court and in the same manner as an equitable mortgage created by the debtor by writing under his hand. A short passage in Mula's Code of Civil Procedure (14th Edn), Vol. II at page 151s instructive and reads thus : "There is no provision in the Code for charging orders, but on the Original Side of the High Courts, which have inherited the older jurisdiction of the Court of Chancery, it is the practice in cases where it is considered undesirable to grant immediate execution to make a charging order in the form made in the case of Kewy v. Attil [18] 34 Ch D 345. When the assets require nursing, the advantage of a charging order is that it enables the court on the one hand to gain time and on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were pledged, the pawnee may bring a suit against the pawner upon the debt or promise, and retain the goods pledged as a collateral security, or he may sell the thing pledged, on giving the pawner reasonable notice of the sale. In the case of a pledge, however, the legal title to the goods pledged would not vest in the pawnee. The pawnee has only a special property. A pawnee has no right of foreclosure since he never had the absolute ownership at law and his equitable title cannot exceed what is specifically granted by law. In this sense, a pledge differs from a mortgage. In view of the foregoing, the pawnee in the instant case, i.e ., the Government of Uttar Pradesh, could not be treated as the holder of the shares pledged in its favour. The Cotton Mills Company continued to be the member of the Polytex Company in respect of the said shares and could exercise its rights under section 169 of the Act. It may be stated here that the Government of Uttar Pradesh and the Collector who are the parties to this appeal have not questioned the correctness of the judgment of the High Court. One other subsidiary contention urged on behalf of the appellants relates to the effect of an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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