9911796707
TMI Blog1993 (7) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed on March 13, 1991. In the written statement filed by the company, it is, inter alia , contended that the petition is not maintainable. Now, the question of maintainability is sought to be decided as a preliminary issue. The points raised are that the petition does not satisfy the statutory requirements of section 399 of the Companies Act, and that by the amendment of the Companies Act, the jurisdiction of this court has been taken away. The first point is raised on the premise that one-tenth of the shareholders have not come forward with the petition, and the consent given by some of the shareholders is not proper and the requirement of one-tenth has to be satisfied by the petitioners themselves. The averments are denied in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for consent of members is provided, necessarily that is to enable the person who actually wish to file the petition to do so with the consent of other shareholders when they together constitute one-tenth of the shareholders. It may also be noted that in terms of sub-section (3) of section 399, when a petition is moved with the consent in writing of some of the shareholders, such a petition is on behalf of and for the benefit of all of them, namely, the petitioners and the consenting shareholders. When the petition is for the benefit and on behalf of the consenting shareholders also, it is idle to contend that the persons who figure as petitioners, should hold a minimum of one-tenth shares. If that were the intention of the Legislature, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. [1980] 50 Comp. Cas. 154 (Mad) that the consent given in this, case does not satisfy the specific requirements of law. They were cases where there was no written consent or the consent given was only of a general nature without applying the consenters' mind to the allegations and reliefs prayed for in the petitions. In those circumstances, it was held that a mere consent of a proposed action for mismanagement, is not sufficient and there must be something to infer from the writing given by the consenter that he has understood the purport, scope, etc., of the petition, for which the consent was given. Before a member can be said to have consented to a particular action, the said member should have known what was the action to be initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the District Court, Kottayam, has been challenged and so, the petitioners who consented together, do not have the required number of shares. Alice Ittiyavirah, the mother of petitioners Nos. 2 and 3, as mentioned earlier, was holding 155 shares. She executed a will bequeathing her shares to petitioners Nos. 2 and 3 and on the strength of that will, the latter have obtained letters of administration. The shares held by Thomas Sebastian were sold in court auction, and they were purchased by the second petitioner. The letters of administration issued by the District Court have not been revoked, nor the operation of that stayed. As matters stand, the letters of administration entitle petitioners Nos. 2 and 3 for those 155 shares. The court sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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