TMI Blog1958 (1) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... putes herein are not in dispute, with the result that no oral evidence whatever has been led, The only evidence led is documentary evidence, the same being relevant and necessary for the purpose of the decision herein. It is therefore not necessary to set out the contentions as contained in the pleadings of the parties. It will suffice to set out the facts which give rise to the disputes herein. The first defendant company is a private limited company. At all relevant times the plaintiff and the defendants Nos. 2 to 8 have been directors of the first defendant company. The first defendant company are the managing agents of two public limited companies, being the Kamani Metals and Alloys Ltd. and the Kamani Engineering Corporation Ltd. The plaintiff and the eighth defendant are directors of another private limited company called the Shanta Brothers Private Ltd., the plaintiff being also the chairman of the board of directors, thereof. A finance agreement which is recorded in writing dated 14th May, 1954, was arrived at between the said Shanta Brothers Private Ltd. and the first defendant company, whereby the former agreed to lend to the latter a sum of Rs. 28 lakhs on the terms an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Brothers Ltd., Kamani Metals and Alloys Ltd. and Kamani Engineering Corporation Ltd. on whose respective boards he is to be appointed a director; ( e ) see that the respective holders of the said shares shall cast their votes at any meeting of the said Kamani Brothers Ltd., Kamani Metals and Alloys Ltd. and Kamani Engineering Corporation Ltd. in accordance with the directions of the lenders and not otherwise and give their proxies to such person or persons as they the lenders may nominate and procure to the lenders an undertaking in that behalf from the respective holders of the said shares." In pursuance of the said finance agreement the said Shanta Brothers Private Ltd. lent and advanced to the first defendant company the aggregate sum of Rs. 28 lakhs and created the stipulated pledge and equitable mortgage. Towards the end of February, 1956, the said Shanta Brothers Private Ltd. nominated and the first defendant company accepted the plaintiff as a director of the first defendant company under the provisions of clause 7( b ) of the said finance agreement and similarly the said Shanta Brothers Private Ltd. nominated and the first defendant accepted the eighth defendant a direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99 and 100 of the articles of association of the first defendant company were amended. The said amended articles run as follows: "99. Directors may appoint managing directors and/or executive director. The directors may from time to time appoint any one or more of their body to be managing director or managing directors and/or executive director for such period and upon such terms as they think fit, and may vest in such managing director or managing directors and/ or executive director such of the powers hereby vested in the directors generally as they may think fit and such powers may be exercisable for such period or periods and upon such conditions and subject to such restrictions, and generally upon such terms as to remuneration and otherwise as they may determine. The remuneration of a managing director and/or executive director may be by way of salary or commission or participation in profits, or by any or all of those modes." " 100. Special position of managing director and/or executive director. A managing director or managing directors and/or executive director shall not while he continues to hold that office be subject to retirement by rotation and he shall not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Kamani Metals and Alloys Ltd. the first defendant company and its associates and that the plaintiff as a joint managing director would look after the work of the Kamani Engineering Corporation Ltd. with immediate effect. A meeting of the board of directors of the first defendant company was scheduled to be held on September 21, 1957. An agenda for the said meeting as also a supplementary agenda for the same were circulated amongst the directors of the first defendant company. The said agenda and the supplementary agenda have been put in as exhibit D collectively. In view of the case as argued such agenda and supplementary agenda are not at all relevant. For certain reasons which are not relevant the said board meeting stood adjourned to September 23, 1957. On September 23, 1957, the said adjourned board meeting was held. Agreed portions of the minutes of that meeting have been put in as exhibit 5. As appearing from the said minutes the said meeting passed the following resolution: "In view of the consensus of opinion of the majority of the board of directors that the arrangements earlier resolved of division of responsibilities between the managing director and joint manag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man and the eighth defendant is a member. It is common ground that at all relevant times as also at present the Kamani group controlled the voting rights in respect of 10,450 shares whereas the group of the plaintiff and the defendants Nos. 7 and 8 effectively control the voting rights in respect of 4,550 shares. At the hearing of the suit, after the pleadings were read, five issues only were raised originally, the same being as suggested by Mr. Munshi on behalf of the first, defendant company. The respective counsel appearing for the defendants Nos. 2 to 6 joined in these issues. A reading of the pleadings shows that the same contains statements of fact on which the plaintiff wants to rely. But there are very few submissions of law which would clearly indicate what exactly is the plaintiff's cause of action. Undoubtedly it was not necessary that the plaint should contain any submissions of law. The result, however, was that the contesting defendants did not know what would be the exact cause of action which the plaintiff would formulate at the hearing on the basis of this plaint. Paragraph 17 of the plaint does contain certain submissions of law on behalf of the plaintiff. Fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thereafter Mr. Bhatt, the learned counsel for the plaintiff, opened the case of the plaintiff and pointed out what according to the plaintiff is the cause of action in this suit. According to him this suit is under section 42 of the Specific Relief Act, that the plaintiff is entitled to a "legal character," that that legal character of the plaintiff has been denied and that therefore the plaintiff is entitled to the declaration and injunction prayed for. He stated that the cause of action as read in the plaint by Mr. Munshi was not the correct cause of action. Inasmuch as Mr. Munshi had however advanced the said arguments, Mr. Bhatt advanced an argument to distinguish the same by stating that the wrong complained of in the plaint was an individual wrong, that the arguments advanced and the authorities cited by Mr. Munshi had no application and that therefore the plaintiff was in any event entitled to maintain the suit. In support of this contention that the wrong suffered by the plaintiff was an individual wrong and that, therefore, the plaintiff was in any event entitled to maintain the suit Mr. Bhatt cited another string of authorities. When Mr. Bhatt however stated that the only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iberty given by me in that behalf. And it was at that stage that counsel stated that none of them desired to lead any further evidence. The first point for consideration is whether the plaintiff is entitled to a "legal character" within the meaning thereof in section 42 of the Specific Relief Act. The said section 42 provides that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right. This section therefore applies when a person is entitled to any legal character or to any right as to any property. The phrase "legal character" occurs in two statutes, viz., in section 42 of the Specific Relief Act and in section 41 of the Indian Evidence Act, but that phrase has not been defined in either of the said two Acts. There appears to be no decided case which defines "legal character" or lays down general principles for determining the same. I will therefore first reproduce the arguments of Mr. Munshi and Mr. Bhatt as to what is legal character and then proceed to see whether it is possible to define what is "legal character" or whether there are any gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff had certain rights only to manage the property and the affairs of the first defendant company, it being the first defendant company and not the plaintiff who owned the property. As regards section 2(26) of the Indian Companies Act, 1956, Mr. Munshi pointed out that the entrustment of the smallest power, e.g., like signing cheques or being sent to Indore for buying 100 bales of cotton, to a director of the first defendant company would make him a managing director within the meaning thereof under section 2(26). He further argued that the definition of "officer" under section 2(30) of the Indian Companies Act, 1956, would not include a managing director and that this shows that the office fundamentally is that of a director only, that there is no separate office of a managing director and that only when certain extra powers are delegated to a director that the director is for certain purposes termed a "managing director." As regards the meaning of "legal character" Mr. Munshi relied upon Ramakrishna Pattar v. Narayana Pattar [1914] ILR 39 Mad. 80 , which is a judgment of a Division Bench of the Madras High Court. One of the contentions in that suit was that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tus, i.e., a position recognized by law, and that a suit for a declaration that under a certain contract the plaintiff is not liable is not a suit for a declaration that he is entitled to a legal character or any right as to any property. This case again shows that "legal character" under section 42 is the same as legal status. Mr. Munshi also cited two other cases, viz., Deokali Koer v. Kedar Nath [1912] ILR 39 Cal. 704 and Sheoparasan Singh v. Ramnandan Prasad Singh [1916] ILR 43 Cal. 694. Although the said two cases relate to section 42 of the Specific Relief Act, the decisions therein are confined to the facts of the particular case. The judgments do not contain any general discussion as to the meaning of "legal character" nor do they lay down any general principles for guidance as to what would amount to "legal character" under the said section 42. Mr. Munshi then referred to section 41 of the Indian Evidence Act which provides as under: "A final judgment, order or decree of a competent court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act between the managing director and the company or a mere agency arising by reason of the delegation of powers to a director and would not be "legal character" within the meaning thereof under section 42. Mr. Bhatt in his reply to Mr. Munshi agreed with Mr. Munshi that it was difficult to define "legal character." As regards the said three tests mentioned by Mr. Munshi, he stated that as regards the test that an interest in property would not be included in "legal character", he pointed out that the same was obvious from the said section 42 itself, because that section provides for a declaration being made for two categories of rights, viz., legal character and any right as to any property, and, therefore, the said two categories of rights were obviously meant to be separate and distinct from each other. As regards the said second negative test suggested by Mr. Munshi, he pointed out that the same also could not be correct because under most systems of law marriage is a contract and therefore the status of husband and wife would be the result of a contract and yet, even according to Mr. Munshi, the status of husband or of wife would be legal character. He argued that therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irector has by law been clothed with certain attributes as stated by Banerjee and that therefore managing directorship is a legal status or legal character. Mr. Bhatt also argued that the distinction made by Mr. Munshi that in the case of a trustee the legal ownership would vest in the trustee and that the trustee may, therefore, sue for a declaration under section 42, because he would be entitled to a right as to property and not because he was entitled to a legal character was not proper, because courts have made declarations under the said section 42 even in the case of persons who did not own any property but were entitled only to a right to management of property, e.g., a director of policy-holders in a life insurance company in Subramania Aiyar v. United India Life Insurance Co. Ltd. AIR 1928 Mad. 1215 , a mutawalli in Mahommad Jafar Husain v. Mohammad Taqi AIR 1933 Oudh 517 , and in AH Shah v. Fateh Mohammad Mutwali AIR 1935 Lah. 657 , and a trustee of temple who was entitled only to management, the ownership being in the deity, in Swaminatha Iyer v. Ramier AIR 1925 Mad. 421. Mr. Bhatt also cited Chapsey v. Jethabhai [1907] 9 Bom. LR 514, where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it is legitimate to assume that the Legislature was using the same in respect of some known legal concept and the context in section 42 of the Specific Relief Act indicates that what was intended to be meant by "legal character" was "legal status." It is necessary to ascertain what is meant by "rights", "legal rights" and "legal status"? Now, what is a "right"? According to Salmond ( Salmond on Jurisprudence, 10th Edition, page 229): "A right is an interest recognised and protected by a rule of right. It is any interest, respect for which is a duty, and the disregard of which is a wrong. All that is right or wrong, just or unjust, is so by reason of its effects upon the interests of mankind, that is to say, upon the various elements of human well-being, such as life, liberty, health, reputation, and the uses of material objects. If any act is right or just, it is so because and in so far as it promotes some form of human interest. If any act is wrong or unjust, it is because the interests of men are prejudicially affected by it. Conduct which has no influence upon the interests of any one has no significance either in law or morals. Every wrong, therefore, involves som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vested in its owner. It is clear that the title to a right would be a characteristic of a legal right, but it is not an element of a right. Salmond illustrates these five characteristics by the following example: "Thus if A buys a piece of land from B, A is the subject or owner of the right so acquired. The persons bound by the correlative duty are persons in general, for a right of this kind avails against all the world. The content of the right consists in non-interference with the purchaser's exclusive use of the land. The object or the subject-matter of the right is the land. And finally the title of the right is the conveyance by which it was acquired from its former owner." But, as pointed out by Holland, there are rights, in which the third element, viz., object or subject-matter, may be absent. For example, B is A's servant. Here A is the "person of inherence", reasonable service is the "act" to which he is entitled, and B is the "person of incidence" against whom the right is available. Now, the possible modes of classifying rights as also legal rights are almost infinite, but only some are of greater importance. Various modes of classifying rights would, it sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rights such as these constitute his legal status, not his legal estate. If we go outside the sphere of private into that of public law, we find the list of personal rights greatly increased. Citizenship, honours, dignities, and official position in all its innumerable forms, pertain to the law of status, not to that of property." From the above, it is clear that a legal right must be either proprietary, i.e., in the nature of property, or personal and it is only the latter that creates a status. For a better understanding of what is meant by "status," and to find out what is the demarcating line between a right which is a proprietary right and a right which is a personal right I will now turn to Holland. A right, as stated above, has four elements, two of which are "the person of inherence" and "the person of incidence", i.e., the person in whom the right resides and the person against whom the right is available. Holland says (page 94): "Persons are the subjects of duties as well as of rights...Persons, i.e., subjects of rights or of duties, are in general individual human beings ; but, in imitation of the personality of human beings, the law; recognises certain groups ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stics of the law that ought to be treated under the latter head, Holland says (pages 143-144): "The true test is surely this. Does the peculiarity of the personality arise from anything unconnected with the nature of the act itself which the person of inherence can enforce against the person of incidence? In order to determine, for instance, whether the right of landlords should be considered under the law of persons, we must ask whether landlords as a class have any juristic peculiarities unconnected with the acts which they are entitled to demand from their tenants; such as the payment of rent, the observance of covenants, etc. They clearly have not. A landlord merely means a person who is entitled to these acts. On the other hand, suppose the landlord to be an infant; here at once a whole set of characteristics are present, modifying the right to rent, etc. and quite unconnected with it. Nor is it only because the same person sustains the two characters of infant and landlord that this is the case; a man may be a pawn-broker and landlord, but the rights as landlord will not be affected by his occupation as pawn-broker. The personality recognised in the law of persons is such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arply defined only in private law and not in public law. In private law, where all characteristics of law are fully present, the law of persons is a statement of the ways in which the general law is modified by varieties of status; while the law of things is a description of the various kinds of rights enjoyed in private capacities by persons as being within the jurisdiction of a State, but not as being in any way representative of the sovereign power in the State. In public law, however, which possesses the characteristics of law in a lower degree of development, the distinction is but faintly traceable. What is analogous to the law of persons here consists in a description of the State as a whole, of its ruling body, of bodies of persons enjoying delegated ruling power, and of its constituent members as such; in short what is usually known as "constitutional law." On the other hand, the residue of public law consisting of the administrative law and the criminal law has its analogies to the law of things. Legal status of a subject may, therefore, arise in relation to private law or in relation to public law. A person's franchise or right to vote or right to a public office would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of its memorandum or articles of association. On this definition of a managing director as given by the Companies Act, it is necessary to ascertain first who is the person of inherence, which is "the act" that is the right, and who is the person of incidence. It is the plaintiff who is the person of inherence. It is the plaintiff who as managing director claims certain rights. "The act," that is the right or rights, are the powers entrusted to the managing director as mentioned in the above definition. It is the company which is the person of incidence, that is the person against whom the powers or rights as managing director would be available. It may be that not only the company, that is, the first defendant company, but even the plaintiff's co-directors may perhaps fall within the category of persons of incidence. I do not think it necessary to analyse and ascertain whether the plaintiff's co-directors would or would not be persons of inherence. I will assume that they do fall within that category of persons of incidence. But to my mind it is quite clear that whatever powers or rights the managing director is entitled to are by reason of the particular entrustment. It is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maxim of English law, can do no wrong. No action can be brought against him, nor indeed against a foreign sovereign, as such, or his ambassador. Certain high officials are exempted from responsibility for the acts of their subordinates, and various public functionaries are relieved from liability by the Statutes of Limitation at an earlier date than other people." The king or the high officials mentioned in this illustration have a legal status, as they have a peculiarity of personality as in the case of a minor which exists independently of any particular right which they claim and which they can enforce against the persons of incidence. It is in this sense that "official position" or "office" has been used in the said 8th variety and as seen earlier, managing directorship cannot fall within it. On the general test mentioned above, it is clear that when rights were claimed under a contract the same would not amount to "legal character" under section 42 as held in some of the cases I have referred to above. Nor is the question whether the judgment in a particular case would amount to a judgment in rem a test of "legal character" as argued by Mr. Munshi, because the division of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her point for my decision, viz., that in order to obtain relief the plaintiff must, on the plaint as it stands, place reliance on the articles of association of the first defendant company, but that the plaintiff is not entitled to do so as the plaintiff is not even a shareholder of the first defendant company. Now, it is quite clear that the plaintiff must rely on the articles of association of the first defendant company in order to challenge the validity of the resolutions dated 23rd September, 1957. It is the plaintiff's case, as made out in the plaint, that on a true construction of the articles of association of the first defendant company and particularly article 100, the board of directors of the first defendant company had no power to pass the said resolutions and that the said resolutions are invalid because of that reason. Mr. Bhatt however argued that reliance has to be placed on the articles of association of the first defendant company, not by the plaintiff to complete the cause of action, but by the defendants to justify the plaintiff's removal from his managing directorship. He pointed out that it has been stated in the plaint that the plaintiff was appointed as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t defendant company at a general meeting of its members, then and only then, would it be necessary for the defendants, if they allege termination, to prove that there was a valid special resolution passed by the first defendant company at a proper general meeting of its members. In this case, in order to prove the plaintiff's alleged legal character as managing director, it would be for the plaintiff to prove, amongst other things, whether such appointment of the plaintiff was capable of being terminated, and if so, in what manner; and in order to prove the same the plaintiff must rely on the articles of the first defendant company. Next, it is common ground that the plaintiff at any material time was not a shareholder of the first defendant company. Now, even between a member and the company, the articles of association constitute a contract only in respect of his rights and liabilities as a shareholder, but not in respect of rights and liabilities which he has in a capacity other than that of a member. But as between the company and outsiders, i.e., persons who are not shareholders, the articles do not in any circumstances constitute a contract of which that person can take adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removed by an authority incompetent to do so and by a person wrongfully removed by a competent authority. It was argued by Mr. Bhatt that this suit falls within the said former category and that the plaintiff could rely upon the articles of association to show that the plaintiff is sought to be removed by an authority incompetent to do so and that therefore there is no competent removal at all of the plaintiff from his managing directorship. In respect of this argument the following passage from the judgment in the above case appearing at page 96 is relevant: "Mr. Thiruvenkatachari has sought to draw a fine distinction between the case of a person who has been removed by an authority incompetent to do so and by a person wrongfully removed by a competent authority. In the present case, however, the incompetence of the board of directors is sought to be inferred from the articles of association themselves, which plaintiff cannot, for this purpose, invoke so as to give him a cause of action." In my opinion this passage applies with equal force to the identical arguments advanced by Mr. Bhatt. I may repeat that in my opinion the plaintiff is not entitled to place any reliance on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o legal character. On the contrary that case envisages an injunction being granted to the plaintiff on the basis that the plaintiff would succeed in establishing the grounds on which the plaintiff claimed the declaration. It is definitely not a case which says that when the plaintiff fails to establish the grounds on which he claims the declaration, the plaintiff should be given an injunction but not the declaration. To my mind at least, this proposition urged on behalf of the plaintiff is such that it has merely to be stated to be rejected. The declaration as well as the injunction are both of them reliefs and both are based on the plaintiff's claim that he is entitled to legal character. If that claim to legal character itself is negatived, how can the plaintiff get either of the two reliefs? It must be remembered that the whole claim in suit is based on the plaintiff's claim to legal character and that only. It is not the plaintiff's case, nor has it been argued, that the plaintiff has any claim otherwise than that on the basis of legal character under section 42. That being so, once it is held that the plaintiff is not entitled to legal character, the plaintiff would not be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f article 93 ( a ), or if he is a director having been appointed in accordance with the provisions of article 93 ( b ). Thereafter article 99 provides that the directors may from time to time appoint anyone of their own body, i.e., a person who is already a director, to be a managing director and may vest in such managing director such powers as the board of directors itself has under the articles of association of the first defendant company and such appointment as managing director is to be for such period and upon such terms as the directors think fit. Article 99 deals with the appointment of a person who is already a director as managing director and with vesting of powers in him. So far there is no controversy between the parties as regards the interpretation of the relevant article. The controversy is as to how a managing director is to be removed from his office as managing director and how are the powers vested in him as the managing director to be removed. A managing director is, as already seen, a director with certain additional powers vested in him as the managing director and the controversy before me is confined only to the question of the removal of such additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, according to the plaintiff, article 100 provides that a managing director can and must be removed as the other directors of the company and the provision as regards the other directors of the company is contained in article 114 of the articles of association of the first defendant company to the extent that it provides: "...the company may by extraordinary resolution remove any ordinary director before the expiration of his period of office." According to the plaintiff, the said provision of article 114 is to be read as if it was bodily reproduced and incorporated in article 100. If so read, article 100 is to be construed as providing that a managing director shall be subject to removal by the company by an extraordinary resolution. The plaintiff further contended that since April 1, 1956, when the Companies Act, 1956, came into force the said words "extraordinary resolution" have, by reason of section 651 of that Act, to be read as "special resolution," such special resolution being defined by section 189 of that Act. The plaintiff therefore contended that article 100 so construed provides that it is the company which has the power, by a special resolution, to rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 72 of Table A in the First Schedule to the Indian Companies Act, 1913, and that the regulation 72 divides itself into two parts, the first dealing with the appointment of a managing director which is dealt with by article 99 and the second dealing with the determination of managing directorship which is dealt with by article 100. It was further argued that the last clause of regulation 72 provides that the appointment of a joint managing director shall be subject to determination if the company in general meeting resolves that his tenure of office of managing directorship be determined but that there is no such specific provision contained in article 100 and that is because the same has been provided for by providing that a managing director shall be subject to removal as the other directors of the company and thereby providing for the removal of a managing director the same mode as is provided by article 114 for the removal of a director. It was argued that on the parallel of regulation 72 article 100 must be construed as containing a provision for the removal of a managing director. This argument is intended to meet the argument on behalf of the first defendant company that art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve director...if he ceases to hold the office of director he shall ipso facto and immediately cease to be a managing director." The executive director cannot cease to be a "managing director". It is, I believe, the lack of proper amendment as aforesaid that leads to this difficulty. Fortunately for me this case does not require an interpretation of article 100 in relation to an executive director and in construing article 100 I will proceed to deal with it, for the purpose of this case, as if the words "and/or executive director" were absent. Article 100 divides itself into three parts which, without any change or omission would read as follows: "A managing director or managing directors shall not while he continues to hold that office be subject to retirement by rotation and he shall not be taken into account in determining the rotation of retirement of directors, but he shall, subject to the provisions of any contract between him and the company be subject to the same provisions as to recognition and removal as the other directors of the company, and if he ceases to hold the office of directors he shall ipso facto and immediately cease to be a managing director." Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 114. But there can be other ways in which a cessation of the directorship can result, these ways having been provided for by article 98 of the articles of the first defendant company. All the ways under article 98 are either the happening of a specified event like insolvency or unsoundness of mind of the director or some voluntary act of the director like his tendering his resignation. But what is common to all these ways under article 98 is that on the happening of the contingency provided for, the cessation of directorship automatically results without anything else being required to be done thereafter. Therefore on the happening of such contingency the director can be said to cease to be capable of being recognised as a director of the company. It is in this meaning that the word "recognition" has been used in the second part of article 100, and recognition of a director would mean the person's continuation in office as a director. It appears to refer to the stage when a person continues to be in his office of a director and which stage terminates when he ceases to be a director under article 98 of the articles of association of the first defendant company. This appears to be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities in the case of each of the said three types of directors are different and the method of removal would also be different. It is in the light of this analysis that I must test the argument urged on behalf of the plaintiff, viz., that it is this second part that provides for the removal of a person from his managing directorship and for that purpose the relevant provision of article 114 should be read as if it was reproduced, as it were, in this second part of article 100. As already seen, "the other directors of the company," would include at least the said three types of directors, and the agency which can remove and the method of removal are different in the case of each of them. If so, there is no justification for singling out only that which is applicable to the removal of an ordinary director only and omit that which is applicable to the removal of the other two types of directors. Why read the relevant provisions of only article 114 into article 100 and not those of article 93( a ) or article 93( b )? And that raises a further question as to why this second part of article 100 contains such a vague provision when it mentions "other directors" without specifying "ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n shall, even if he is appointed as a managing director be subject to the provisions as to recognition or removal as a director as the other directors of the company. Mr. Bhatt on behalf of the plaintiff argued that such interpretation requires the underlined words "as a director" to be added in the second part. It is true that normally words should be construed as used without adding any more words therein. But this is not a case of addition of totally new words. In the first part itself the words "as a director" are present, but by implication. The first part says "a managing director shall not while he continues to hold that office be subject to retirement by rotation". The question arises "retirement by rotation" as what? Certainly not as a managing director. Neither the Companies Act, old or new, nor the articles of the first defendant company provide for retirement by rotation of a managing director. It must mean "retirement by rotation" as a director. A retirement by rotation as a director is provided for both by the Companies Act and even by articles 107 and 108 of the articles of association of the first defendant company itself; and even Mr. Bhatt did not dispute that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectorship. Now, in article 99 the words used are "from time to time" when it says that the directors may from time to time appoint any one or more of their body to be managing director and may vest in such managing director all or some of the powers vested in the directors by the articles of association of the first defendant company. The words "from time to time" as occurring in an Act of the British Parliament which authorised the Lord Chancellor from time to time to make an order have been construed in Lawrie v. Lees [1881] 7 App. Cas. 19 by LORD PENZANCE as: "the words 'from time to time' are words which are constantly introduced where it is intended to protect a person who is empowered to act from the risk of having completely discharged his duty when he has once acted, and, therefore, not being able to act again in the same direction. The meaning of the words 'from time to time' is that after he has made one order he may make a fresh order to add something to it, or take something from it, or reverse it altogether." The Act did not specifically authorise the Lord Chancellor to revoke the order, but the words were construed to include the power to "reverse it altogethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tings ) Ltd. v. Gulliver [1942] 1 All ER 378 p. 387 : "Directors of a limited company are the creatures of statute and occupy a position peculiar to themselves. In some respects they resemble trustees, in others they do not. In some respects they resemble agents, in others they do not. In some respects they resemble managing partners, in others they do not." For the purpose of the point under consideration, inasmuch as there is a delegation of powers by the company to its board of directors to the extent mentioned in article 99, I think that it is safe to say that for the purpose of considering the exercise of powers the relationship is that of principal and agent and sub-agent as mentioned above. Looked at in that perspective, under section 193 of the Indian Contract Act, the agent, namely the board of directors, stands in the position of a principal in relation to the sub-agent, namely, the managing director; and under section 203 of that Act, subject to the exceptions and conditions mentioned in that section, with which exceptions and conditions we are not concerned in this case, a principal can revoke the authority given to the agent and, therefore, the board of directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 538 was "the plaintiff can only be removed by an extraordinary resolution". This would mean that the point taken by the plaintiff was that the person who had the power to remove the plaintiff from his chairmanship and also his joint managing directorship was the company itself in its general meeting and not the board of directors. The decision as regards this contention of the plaintiff was that the board of directors did have under the said article 99 the power to remove the plaintiff from his managing directorship as appears from the following passage of the judgment at pages 542-543: "In the same way it is argued that the appointment of the plaintiff as sole managing director was for such time as he should be a director. Here the question depends on article 99, under which 'The directors may, subject to the preceding clauses, from time to time appoint any one or more of their body to be managing director or directors, for such period, at such remuneration, and upon such terms as the directors think fit.' In this case, also, it appears to me that the directors have power from time to time to appoint any one or more of their body to be managing director or directors, and it does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torship and that, therefore, the learned Judge's mind was at that time not focussed on the point as to who, whether the company or the board, had the power to remove the plaintiff from his managing directorship. I am unable to accept this argument of Mr. Bhatt. Undoubtedly, the first sentence of the last paragraph at page 542 supports Mr. Bhatt's contention, but there is no justification to assume that when the learned Judge says what he has in fact said in the above passage quoted by me from his judgment the learned Judge was not in terms dealing specifically with the said point actually argued before him by Tomlin K.C. that it was the company and not the board who had the power to remove the plaintiffs from his managing directorship. This case is, therefore, a direct authority for the proposition that on that article, the wording whereof was materially the same as that of article 99 of the first defendant company, even though there is no specific power granted to the directors for the removal of the managing director, such a power has been impliedly granted to them by that article. Mr. Bhatt relied upon the case of Nelson v. James Nelson and Sons Ltd. [1914] 2 KB 770. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration having been applied to the decision contained in those obiter dicta. In my opinion, these obiter dicta are not sufficient to outweigh the conclusion I have arrived at earlier as mentioned above. When commenting on the said case of Foster v. Foster [1916] 1 Ch. 532, Mr. Bhatt had commented that these dicta of Lord Reading were not even cited or considered by Peterson J. in his judgment and that that shows that the point under consideration was not properly argued before Peterson J. It is true that the said obiter dicta of Lord Reading do not appear to have been cited before or to have been considered by Peterson J. But to my mind it does not in any way detract from the said judgment of Peterson J. It is quite possible that the above remarks of Lord Reading being mere obiter dicta and not being the result of a full argument in the case or a considered opinion of the learned Judge were not cited in Foster v. Foster [1916] 1 Ch. 533 . Therefore, if it was necessary, I would have held that the board of directors of the first defendant company did have the power to revoke the appointment of the plaintiff as joint managing director and that, therefore, the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of even this argument requires various alternatives to be decided first. I have already held that the plaintiff is not entitled to a legal chatacter. But if I had held that he was entitled to a legal character I would have further held that I ought not to have exercised my discretion in favour of granting the declaration asked for because I have also held that the provisions of article 114 are not to be deemed to have been incorporated in article 100, the result being that a mere ordinary resolution would be sufficient, if passed by the first defendant company to remove the plaintiff from the managing directorship as contended by Mr. Munshi. Under the circumstances my answers to the issue are: Issue No. 1: Not pressed by Mr. Munshi. I may repeat that some time after this issue was raised Mr. Bhatt made it clear that the cause of action in the plaint was on the basis of a claim to a legal character under section 42 of the Specific Relief Act and thereupon Mr. Munshi did not press this issue. Moreover, to avoid any possible misunderstanding, I may note that this issue was raised immediately after the pleadings were read and does not cover and was not even intended to cover the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whose favour I have made an order for costs as aforesaid an application was made under rule 601 of the High Court Rules on the Original Side to the effect that I should either allow a fixed sum in excess of Rs. 2,000 as instructions for brief or that I should direct the Taxing Master to allow such sum exceeding Rs. 2,000 as he may in his discretion think proper. The hearing of this case has undoubtedly been a long one. I am told that the hearing lasted for about 35 hours. But against that, it is also true that this case did not involve numerous or complicated facts and, moreover, there was no oral and very little documentary evidence. To enable me to exercise my said discretion what is being placed before me today are merely general arguments and rough estimates and, therefore, there is not before me at present sufficient material to enable me to exercise the discretion vested in me under the said rule 601. I will be in a much better position to judge this after the successful defendants in whose favour I have made an order for costs have prepared and lodged their respective bills of costs. Under the circumstances I direct that this application under rule 601 should be renewed aft ..... X X X X Extracts X X X X X X X X Extracts X X X X
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