TMI Blog1955 (12) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... er month with an option to the directors, subject to the approval of the general body, to pay additional remuneration to the managing director. Article 17 provides that the whole affairs of the company shall, subject to the control and direction of the board of directors, be managed by the managing director. Article 18 provides that Kesavaraman Chettiar shall be the ex-officio director of the company and he shall not be subject to retirement by rotation. Dissensions, however, soon broke but inside the company. In 1952 Parvathammal and some others who held shares in the company filed O.P. No. 101 of 1952 for its being wound up. They also filed another petition, O.P. No. 305 of 1952, in which they prayed for various reliefs: ( a )for an order removing Kesavaraman Chettiar and three others from the management of the company and the directorate, ( b )for the appointment of an administrator to take charge of and conduct the affairs of the company, ( c )for calling a general body meeting, ( d )for the appointment of an auditor to scrutinise the accounts of the company and prepare a balance sheet, and ( e )for an amendment of the articles of the company and deletion of article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndu" and the "Swadesamitran". The hearing was fixed for 20th September, 1954. The advertisement appeared in the issue of the Fort St. George Gazette dated 15th September, 1954, in the issue of the "Hindu" dated 6th September, 1954, and in the issue of the "Swadesamitran" dated 8th September, 1954. The material portion of the notice that appeared in the Fort St. George Gazette is in these terms: "Notice is hereby given that a petition under section 153( c ) of the Companies Act, 1913, for removal of respondents 2 to 4 and for other reliefs was presented by the petitioners on 24th March, 1954, and that the said petition is directed to be heard before the Judge sitting in Chambers on 20th September, 1954. Any person desirous of supporting or opposing the making of an order as prayed in the petition should appear at the time of the hearing by himself or by his advocate, and a copy of the petition will be furnished to any person requiring the same by the undersigned on payment of the regulated charges for the same." On 23rd March, 1955, Ramaswami Goundar J. passed an order by which article 13 was amended, reducing the share qualification of directors from five to four; articles 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of the hearing of the petition and in the Fort St. George Gazette only five days before such date. To this objection Mr. Kesava Aiyangar answered that the point was not taken in the affidavit filed along with the petition. That is no doubt so, but, since this is a matter which appears on the face of the record, an omission to plead it in the affidavit does not appear to me to be of importance. The language used in rule 14 is in terms similar to the language used in section 81 of the Companies Act which requires not less than twenty-one days' notice to be given for an intention to pass a special resolution. So far as is here material, the language in the rule and the statute are the same. In Nagappa Chettiar v. Madras Race Club [1949] 19 Comp Cas 175 , a Bench of this court observed: "The date of the meeting and the date of service of notice are therefore to be excluded, and in between the dates there should be an interval of twenty-one days. The notice issued to all the members therefore was inadequate and did not comply with the statutory requirement and is therefore illegal. The meeting therefore was not legally convened." The omission to give fourteen days' noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quirements of section 153 of the Act. To this Mr. Kesava Aiyangar replied that if the order which Ramaswami Goundar J. made, on 29th March, 1955, is read carefully it will be seen that it is really a direction by the court and not a consent order. Now; I cannot go behind the order, and the last part of that order very explicitly states, "the entirety of this order is passed by consent after discussion with the learned counsel on both sides." This statement in the order is conclusive. If it were erroneous the learned Judge should have been moved either at once or promptly after to correct. That was not done. In view of this statement in the order I cannot entertain the argument of Mr. Kesava Aiyangar that it was not a consent order. Mr. Kesava Aiyangar for the respondent finally said, that Application No. 2452 of 1955 was not competent. The applicants in it were not parties to the original petition. That original petition has been finally disposed of and after it has been disposed of they cannot possibly be heard to say that they ought to be impleaded in it, and allowed to contest it afresh. Ordinarily of course the rule is that when a matter is closed a person cannot come subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thenal Ammal v. Sokkammal [1918] 41 Mad. 233 , and Sarat Kumari v. Amulyadhan AIR 1923 PC 13. As the vakalat did not give counsel authority to compromise, Kesavaraman Chettiar and the two other directors who sail with him would not be bound by the compromise. Mr. Kesava Aiyangar pointed out that even if it be that counsel had no authority to compromise still Kesavaraman Chettiar had ratified the compromise by consenting to work and also working as an administrator on the basis of the order passed by Ramaswami Goundar J. Mr. Krishnaswami Aiyangar explained that in acting as an administrator he was proceeding on the basis of a letter addressed to him by Mr. Chari wherein it is not mentioned that the order passed on 29th March, 1955, was passed by consent. Regard being had to this letter, I do not think it right to say that there has been a ratification of the action of counsel by Kesavaraman Chettiar or the others. It seems to be clear to me that the applicants in Application No. 2452 of 1955 have a real and substantial interest in the proper management of the affairs of the company. Prayers ( i ), ( ii ) and ( iii ) in that application are allowed. So far as prayer ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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