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TMI Blog1989 (3) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal; apart from the usual prayers, the petitioner prayed for an order directing the company to hold the fourteenth annual general meeting and at such meeting to consider the notices and the proposal made by the petitioner under section 257 of the Companies Act. The petitioner, Gopal Vyas, proposed the candidature of one Navin Chand Suchanti for the office of a director of respondent No. 1 at such annual general meeting. The petitioner had given a notice under section 257 of the Companies Act, 1956. The petitioner contended that the company was under an obligation to inform its members of such proposal made by the petitioner at such annual general meeting due to be held on December 29, 1986. But the company, being respondent No. 1 herein, according to the petitioner, wrongfully refused to comply with the said proposal on the alleged ground of non-compliance with the provisions of section 188 of the Companies Act. There have been many proceedings so far as this company is concerned, for various reliefs. After protracted litigations, the matter went before the Supreme Court of India and, ultimately, the learned judges of the Supreme Court directed that all pending matters befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his section, a company shall, on the requisition in writing of such number of members as is hereinafter specified and (unless the company otherwise resolves) at the expense of the requisitionists: ( a )give to members of the company entitled to receive notice of the next annual general meeting, notice of any resolution which may properly be moved and is intended to be moved at that meeting; ( b )circulate to members entitled to have notice of any general meeting sent to them any statement of not more than one thousand words with respect to the matter referred to in any proposed resolution, or any business to be dealt with at that meeting. (2) The number of members necessary for a requisition under sub section (1) shall be ( a )such number of members as represent not less than one- twentieth of the total voting power of all the members having at the date of the requisition a right to vote on the resolution or business to which the requisition relates; or ( b )not less than one hundred members having the right aforesaid and holding shares in the company on which there has been paid up an aggregate sum of not less than one lakh of rupees in all. (3) Notice of any such res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are not parties to the application. (6) A banking company shall not be bound to circulate any statement under this section, if, in the opinion of its board of directors, the circulation will injure the interests of the company. (7) Notwithstanding anything in the company's articles, the business which may be dealt with at an annual general meeting shall include any resolution of which notice is given in accordance with this section, and for the purposes of this sub-section, notice shall be deemed to have been so given, notwithstanding the accidental omission, in giving it, of one or more members. (8) If default is made in complying with the provisions of this sec tion, every officer of the company who is in default, shall be punishable with fine which may extend to five thousand rupees". Under this section, members' resolutions are intended to be moved at an annual general meeting or at any other meeting after the circulation to members in each case of the text of the proposed resolution with explanatory statement, if any, in respect of the resolution or other business. This section has conferred on all shareholders an important right to give through the company machinery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 188, different times have been provided. The conditions for such application under section 257 are different from the conditions as provided under section 188 inasmuch as, under the previous provision of section 257, the member was not required to deposit any sum whereas, under section 188, specific provision has been made for deposit and/or tender of the requisite amount reasonably sufficient to meet the company's expenses in giving effect to such members' requisition. Under section 257, it has been specifically provided that individual notice of such requisition under section 257 will have to be given by the company to its members or if the company decides to advertise such candidature in two newspapers having circulation at the place where the registered office of the company is located either in the English language or in any other regional language of that place. Such provision has not been made under section 188. The provision of section 257 shall not apply to a private company unless it is a subsidiary of a public company. There is no such corresponding restriction so far the provision of section 188 is concerned. Under section 257, as soon as the notice complying the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause ( iii ) of sub-section (1)( a ). Moreover, section 173 provides that, in the case of annual general meeting, all business to be transacted at the meeting shall be deemed, specially with the exception of the business as provided under sub-clauses ( i ), ( ii ), ( iii ) and ( iv ) and under clause ( b ) in case of any other meeting, as special and it is only where any items of business to be transacted at the meeting are deemed to be special that there shall be annexed to the notice of the meeting a statement setting out all material facts as provided under clause ( b ). The appointment of a director in the place of those retiring is an item of ordinary business to be transacted at the annual general meeting of the company. The petitioner has not called for the meeting. It is at a meeting called by the company that the petitioner has given the notice for transaction of the business which is ordinary in nature at such meeting. Under section 237, any member is entitled to take advantage of such provisions as contained in section 257. The petitioner's name appears in the register of shares, so until his name is removed by rectification of such share register, his right remains. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 140, sub-sections (4) and (5). Then, it was the company's duty under section 140(1) at the expense of the requisitionists unless the company otherwise resolved to give to its members the notice. The procedure for removal of a director has been specially provided in our Companies Act. Section 284 makes specific provision for such removal where special notice is required for any resolution of removal of a director or for appointment of somebody instead of that director so removed at the meeting at which he is removed. But, there is no corresponding provision given in the English Act as provided under section 257 of the Indian Companies Act. Under the special facts and circumstances of this case, the case in Pedley v. Inland Waterways Association Ltd. [1977] 1 All ER 209 (Ch D) has no application. By allowing this application in favour of the petitioner, this court does not pass a mandatory order upon the company to pass such resolution. It is only a direction to enable the petitioner to express before the members of such meeting his intention as contained in the notice. In the case of Indian Cable Co. Ltd. v. Sumitra Chakraborty, AIR 1985 Cal 248, the learned j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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