TMI Blog1966 (8) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... he Company is ₹ 25,00,000 (SIC) divided into 25,000 shares of ₹ 1,000 each. The issued, subscribed, and paid-up capital is ₹ 9,60,000 (sic) divided into 9,600 ordinary shares of ₹ 1,000 each fully paid up. 3. By a special resolution of the Company passed in accordance with section 189 of the Companies Act, 1956 at a General Meeting thereof held on 14th March, 1966 after due notice as provided in the Act it was resolved unanimously that subject to confirmation by the Court under section 17 of the Companies Act, 1956, Clause 3 of the Memorandum of Association of the Company be altered by an insertion of a new sub-clause numbered 'k' after the existing sub-clause 'j' of clause 3. That new sub-clause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esolution and he cannot be a Director of Nagaisuree Tea Company Limited by reason of the provisions contained in section 261 of the Companies Act. Secondly, any power of amalgamation will act prospectively and not retrospectively and the Court has no jurisdiction whatever to pass any order that power to amalgamate is always deemed to have been a power because such a retrospective power strikes at the root of the jurisdiction of the Court to make an order under section 17 of the Companies Act. Thirdly, it is said that the meeting at which the special resolution was passed is bad in view of the statutory explanation under section 173(2) of the Companies Act not having been according to law, namely that material facts were not stated. Fourthly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be liable to retire by rotation within the meaning of this Article. Section 261 of the Companies Act enacts that if a public company has a Managing Agent and such Managing Agent is authorised by the Articles to appoint any Director none of the persons mentioned in section 261 shall be appointed (i) as a Director of the Company whose period of office is liable to determination by retirement of Directors by rotation, or (ii) to fill a casual vacancy in the office of a Director under section 262, or (iii) as an additional Director under section 260, or (iv) as an alternate Director under section 313, except by a special resolution passed by the Company. It is not pleaded in the affidavit-in-opposition that there was no special resolution. Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petition. The reason why section 290 is on the statute is that otherwise the act of the company will be imperilled. 8. The contention on behalf of the respondent that notice of the meeting violates the provisions contained in section 173(2) of the Companies Act is founded oh the provisions of the section which require that notice should give material particulars. The fact is that the respondent did not attend the meeting. There is no explanation as to why the respondent did not attend the meeting. As to what material particulars are lacking is not alleged in the affidavit of the respondent. In the decision in Henderson v. Bank of Australasia (1890) 45 Ch.D. 330, Chatty, J., said at page 337 of the report that the Court would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the alteration either wholly or in part and therefore any order passed by the Court will have the effect from the date of the order and therefore the power of amalgamation will be prospective and not retrospective. The date of the order is one aspect of the matter and effect of the order is another. Section 17 of the Companies Act indicates that the company may by special resolution alter the provisions of its memorandum so as to change the place of its registered office from one State to another or with respect to the objects of the company so far as may be required to enable it.......... (g) to amalgamate with any other company or body of persons. The statute recognises the power of a company of amalgamation with another company. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent was that under the provisions contained in sub-section (7) of section 17 of the Companies Act proceedings may be adjourned in order that an arrangement may be made to the satisfaction of the Court for the purchase of the interest of dissentient members. There is no dissentient member at the relevant stage. The respondent cannot utilise proceedings for the collateral purpose of putting pressure on the Company to buy their, shares at this hour. Counsel for the petitioner in my view rightly characterised the attitude of the respondent as mala fide. 11. For all these reasons I am of opinion that the petitioner-company is entitled to an order asked for. There will be order in terms of prayer (1) of the petition. The 'applic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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