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TMI Blog2010 (9) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... d ; and An order over maintainability of the petition as a preliminary issue. 2. The petitioner and the third respondent are sons of one late Visheshwar Nath who died on July 7, 2010. The father of the petitioner and the third respondent, i.e., the second respondent late Visheshwar Nath, incorporated this private company in the year 1968 along with another promoter, namely, Mr. R. D. Bhagat to deal with the business of tools, machinery and hardware of all descriptions with an authorised capital of Rs. 15,00,000 divided into 15,000 of Rs. 100 each, with an issued, subscribed and paid-up capital of Rs. 3,57,000 divided into 3,570 equity shares. As per the annual return of 2005, the share pattern and directorial pattern of the company was th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong ever since his father, i.e., respondent No. 2 passed away. He further submitted that he is the only surviving director of respondent No. 1 company, thereby he is entitled to represent respondent No. 1 company till such time the board is reconstituted for appointing the other directors. As to relief (c) is concerned, counsel to this applicant has not stressed upon the said relief, hence this relief has not been dealt with. 5. To which the petitioner-counsel, without filing reply, directly argued over this application stating that respondent No. 3 is not entitled to represent respondent No. 2 either as a son or as director of the company. Since the petitioner disputes respondent No. 2 executing the purported wills itself, respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and one Mr. Shahzad Afsar Ahmed. Since the differences have cropped up amongst the family members relating to the affairs of the company, the present petitioner moved this petition under section 397/398 of the Companies Act, 1956. The petitioner vehemently opposed respondent No. 2 executing a will in favour of respondent No. 3 bequeathing the assets lying in the name of respondent No. 2. In the natural course whatever properties acquired by the father would devolve upon the legal representatives, in this case, to the petitioner and respondent No. 3. However, here, respondent No. 3 has come up with a will stating that he succeeded to the estate of respondent No. 2 by virtue of testamentary succession. Since it is a device that came into exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into the shoes of respondent No. 2 unless and until probate is obtained on merits. 9. Another aspect in the first point for consideration is whether the third respondent is entitled to represent the second respondent even if the will purported to have been executed is assumed as correct, on this score as well, the third respondent is not entitled because a director or a chairman, as the case may be, holds the position by election, not by succession, hence either way, the third respondent cannot represent respondent No. 2. 10. As to the second point is concerned, according to the third respondent, he is only the sole surviving director of the board. Since it is a known fact that minimum two directors are required to hold the board meeting, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carry on the business of the company, this Bench is of the view that it has powers under section 403 of the Companies Act, 1956, to pass an interim order which it thinks fit for regulating the conduct of the company's affairs, in the light of the facts of this case, I feel it as just and equitable to appoint a special officer to manage the affairs of the company pending disposal of the petition. 14. Thereby, in order to protect the interest of these two sons, this Bench hereby appointed a special officer, viz., Shri Sarathi Dasgupta, advocate, C/o. Shri Dhrubo Ghosh, Bar Library Club, Calcutta High Court, to represent the company in this petition as well as to manage the affairs of the company until further orders. 15. Accordingly, the th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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