TMI Blog1958 (3) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... s business of Albert David and Co. was made over. The company was given the same name. Till September, 1954, the plaintiff and his wife owned more than 90 per cent. of the ordinary shares. The plaintiff was also the largest holder of preference shares. Under the articles, only the ordinary shares had voting rights. To become a director, one need not hold any share at all. The plaintiff was the managing director for life under the articles and under an agreement entered into between the company and the plaintiff pursuant to the articles. At the beginning the company used to deal with imported medicines. In 1939 the plaintiff conceived the idea of manufacturing medicine and with that object the plaintiff appointed Dr. Mukherjee, a very able chemist and put him in charge of the manufacturing side. Dr. Mukherjee was given full scope and every facility to manufacture medicine. Dr. Mukherjee in his turn proved his worth. Dr. Mukherjee's services to the company were recognised and he was made a director of the company in July, 1940. In a formal resolution passed in a meeting of the board of directors held on May 4, 1943, the plaintiff as managing director recorded that the success achie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to the plaintiff, the meeting ended without passing any resolution, while according to Dr. Mukherjee the meeting unanimously agreed to increase the share capital by the issue of 60,000 additional ordinary shares. There is a minute of the company to this effect. The plaintiff contends that it is a false minute. Be that as it may, it is clear that there was open hostility between the plaintiff on one side and Dr. Mukherjee, with whom Dr. Neogy sided, on the other. Events began to move rapidly thereafter. A meeting of the board of directors was alleged to have been held at 4 p.m. in the office in which Drs. Mukherjee and Neogy were alleged to have been present. No notice of the meeting was given to the plaintiff because Dr. Mukherjee was proceeding on the basis that the plaintiff had ipso facto vacated his office as director. In this meeting a number of important resolutions were passed. Services of seven employees who, apparently, were loyal to the plaintiff were terminated. The plaintiff was deprived of the power of operating on company's account. Messrs. Mukherjee and Biswas were appointed solicitor of the company and lastly the company was declared to have a lien on all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 3117 of 1954. There were some interlocutory proceedings in these suits. In Suit No. 3117 of 1954 on the application of the plaintiff a receiver was appointed by P.B. Mukherjea J. against which an appeal was preferred. This is Appeal No. 56 of 1955. An injunction was issued on the plaintiff's application in Suit No. 3112 of 1954 restraining the sale of the same shares, as in the instant suit. Ultimately the suits were settled and withdrawn, and on January 24, 1956, the receiver made over possession of the company to Dr. Mukherjee pursuant to the order of the appeal court in Appeal No. 56 of 1956. On the same date the shares in suit were sold to the defendant, Ramapada Gupta for Rs. 2,67,520. The defendant Ramapada Gupta is alleged to have paid Rs. 1,30,000 on account of price and the balance to be paid after delivery of the relevant share certificates. Ramapada's name was immediately entered in the share register as the owner of the said shares in place of the plaintiff. This will appear from the letter written by the company to Ramapada Gupta bearing date 24/25th January, 1956. By a letter dated February 1, 1956, the plaintiff was informed by the company that in enforcement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint. It is pleaded that the various meetings of the company were properly held, that Dr. Mukherjee and Dr. Neogy were properly appointed directors and were entitled to act as such, that the plaintiff was liable to pay to the company the sum referred to in the letter dated September 24, 1954, that the same was presently payable and that the company had a lien on the shares of the plaintiff for the said sum, that the sale was properly effected in enforcement of the lien. It is alleged that the plaintiff is not entitled to challenge Ramapada's title as purchaser. It is denied that the sale was fraudulent or fictitious as alleged in the plaint. In paragraph 22 the point is taken that the suit is bad for non-joinder of necessary parties. In paragraph 23 it is pleaded that the suit is barred by the provisions of Order II rule 2 and Order XXIII rule 1(3) of the Code of Civil Procedure by reason of the withdrawal of suits Nos. 3112 and 3117 of 1954 without permission to institute a fresh suit. The defendant Ramapada Gupta in his written statement made out substantially the same defence. In paragraph 1 of the written statement he sets out the informations he had when he purchased the share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in paragraph 21 of the plaint? 6.Did defendant No. 1 connive and/or otherwise conspire with Dr. Mukherjee and Dr. Neogy in effecting the sale of the said shares to defendant No. 1 and in entering the name of defendant No. 1 in the share register of the company? 7.Is the plaintiff entitled to rectification of the share register? 8.Did the plaintiff continue to be the owner of the shares in suit after the date of alleged sale? 9.Did Dr. S.L. Mukherjee or Dr. Neogy vacate their office of directors or cease to be directors of the company as alleged in paragraph 9 read with paragraphs 7 and 8 of the plaint? 10.Is the suit bad for non-joinder of Dr. S.L. Mukherjee and Dr. Neogy? 11To what relief or reliefs, if any, is the plaintiff entitled?" In support of his case the plaintiff tendered his own evidence. The defendant company tendered the evidence of Dr. S.L. Mukherjee, its present managing director, Sri Bimal Mitra, the accountant in 1954, and a number of other employees of the company and one Dr. Das Gupta. Defendant Ratnapada Gupta did not tender his own evidence nor call any witness to tender evidence on his behalf. Over and above this oral evidence, a large mass of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore take it as proved that the Great Britain company, Pakistan company and Ceylon company were indebted to the defendant company for the sums stated above. The claims against the Pakistan and Ceylon companies were for goods sold and delivered. The nature of the claim against the Great Britain company is not very clear. The original indebtedness is alleged to have arisen in 1948, when the defendant company is alleged to have advanced a considerable sum of money to the British company. This sum represents the price of goods sent by the British company to the defendant company. Gradually as the goods were sold by the defendant company the sale proceeds were credited to the Great Britain company and the debit entry being the amount advanced have been decreased. According to the plaintiff, a considerable amount of the said consignment sent by the Great Britain company is there still. The transaction according to the entries in the book does not appear to be a case of sale by the British company. Entries are more consistent with agency, the defendant company having acted as the agent of the Great Britain company and advanced the value of the goods to the principal. But assuming as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies (Amendment) Act, 1936." In order that the section may apply, it must be proved that the plaintiff is a member or director of Great Britain, Ceylon or Pakistan companies, that these companies are private companies, that contracts for sale, purchase or supply of goods between the defendant company and the other companies were effected by the plaintiff without the consent of the other directors of the defendant company. If there is no proof of any one of the above facts, the section would not apply. It is proved from the plaintiff's admission contained in his letter to the company dated July 7, 1954, that he was interested as a member and/or director of the three companies though there is no evidence as to when the plaintiff became interested so as to enable the court to ascertain whether at the time of each contract for sale or purchase the plaintiff was interested as such. There is no evidence that the Pakistan company and the Great Britain company are private companies, though the plaintiff stated in his cross-examination that Ceylon company was a private company. Each of these companies is a foreign company, and Mr. Choudhury is entitled to argue, as he did, that the " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivate companies to return back the medicines sold by itself and never offered to return back whatever money it received on account of price. I am unable to hold that the plaintiff as the managing director of the defendant company can be liable for the balance of price due and payable by the foreign companies. Mr. Das further argued that even assuming that section 86F does not cover the case, the plaintiff is, nevertheless, liable on general principles. The plaintiff as a director was occupying a fiduciary position vis-a-vis the company. Occupying as he did a fiduciary position the plaintiff as a director of the defendant company could not in law enter into any dealings with the Great Britain, Pakistan and Ceylon companies in which the plaintiff had interest. This is not permissible on the broad ground that there was a possibility of conflict of duty and interest, that is, duty as a director of the defendant company and interest of the plaintiff in the three above companies. The court of equity in such cases strikes down a contract and refuses to enforce it. In the instant case, the plaintiff as managing director of the defendant company did deal with Great Britain, Pakistan and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s clear that the directors are trustees in a very limited sense. They are liable as trustees for breach of trust, if they misapplied the funds or committed breach of bye-laws. Their position differs considerably from ordinary trustees and it is futile to apply the entire law of trust and the whole body of rules enunciated by the court of equity defining the rights and liabilities of the trustees, to determine the rights and liabilities of a director. The conduct of the directors is to be measured with reference to the character of the undertaking which they are appointed to manage and conduct. In the case of an ordinary commercial company, a director does not commit a breach of trust when he, in the usual course of business, sells or purchases goods from another company in which the director had interest. He is only liable for breach of trust when he misapplies the fund and misappropriates any assets. In the instant case, the plaintiff as managing director has neither misappropriated the funds or the assets of the company nor is he alleged to have committed any breach of bye-laws. How then can the plaintiff be held liable? I do not understand the argument of Mr. Das that section 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral ledger and control ledger of the personal account of the plaintiff and by vouchers. I have held that it is not open to the plaintiff to contend that the account books of the company up to October, 1953, are not correct. His admission contained in the circular letter dated August 16, 1954, is binding on him. On the basis of entries in the general ledger book, the plaintiff's liability to the company as on October 31, 1953, must be held to be Rs. 57,797. Subsequent liability has to be strictly proved. I am not satisfied that the entries in the general ledger from November 1, 1953, to September 10,1954, were made before the plaintiff was ejected from office on September 10, 1954. Nor am I satisfied with the entries made in the control ledger. The probabilities are that these entries were made after the plaintiff was ejected and made under the direction of Dr. S.L. Mukherjee, who was ruling over the destinies of this company since then. Dr. Mukherjee was over-anxious to build up as much liability of the plaintiff as possible. The entries in the general ledger and control ledger cannot be taken as sufficient to make the plaintiff liable. The other evidence is the vouchers. To the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility of the plaintiff was not ascertained, nor were the people controlling the company since September, 1954, anxious honestly to find out the plaintiff's liability. Dr. Mukherjee and Dr. Neogy, I am satisfied, were anxious to cook up a liability of the plaintiff to the company as much as possible, so as to give them a pretext to sell the entire ordinary shares of the plaintiff. Dr. Mukherjee and Dr. Neogy knew that so long as the plaintiff had this large block of ordinary shares which carried the voting right, their position in the company was extremely insecure. The shares in suit were sold in exercise of the power of sale given to the directors by the articles of the company to enforce the lien. It has been argued that in the instant case there was no power of sale and in any event, the resolutions imposing lien and enforcing the lien by sale were passed by men who were not directors of the company. This leads us to consider the articles under which the sale took place. The relevant articles are articles 16, 17, 18, and 19, and are set out below: "16. The company shall have a first, and paramount lien and charge available at law and in equity upon all shares (whether fully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lien or charge. Article 16 provides that the company "shall have a first and paramount lien and charge available at law and in equity upon all shares . . . registered in the name of any member." Article 17 provides that "the directors may sell the shares subject to any such lien" and does not mention "any charge." Mr. Chaudhuri contended that on construction of these two articles it must be held that though for the debts and liabilities due to it the company shall have under article 16 a lien at law and charge in equity, yet it is only in those cases where the company has a lien at law that the directors were authorised to sell under article 17. The directors have no authority to sell shares with respect to which the company had no lien at law, but merely an equitable charge. There would be lien only in those cases where the company had the share-scrips in its possession, that is, the word "lien" has been used in the sense of "possessory lien" of share scrips. With respect to the shares, the scrips of which are not in possession of the company but of the members, there would be equitable charge and shares subject to such equitable charge were not intended by the parties to be so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinction has been made between lien and equitable charge in the two articles and it is only the shares subject to lien as opposed to those in which the company had equitable charge that are to be sold under article 17. It is argued by Mr. Chaudhuri that lien must mean something different from equitable charge. What then can the "lien at law" mean except the possessory lien on the share scrips recognised by the law in this country and understood by all? Again, the share scrips may not be documents of title. But under the Sale of Goods Act the shares are marketable property and goods as defined in the Sale of Goods Act. When the Sale of Goods Act defines "goods" to mean "every kind of movable property... and includes...shares" it must have meant the share scrips which can be dealt with in the bazar as "movable property." It is true no shareholder can be in possession of the share register which must be kept in the registered office of the company under the Companies Act, but the share scrips representing the shares are themselves goods and can be delivered to the shareholders. The company like any other person can have possessory lien with respect to these share scrips. It has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject to equitable charge only and the only way to enforce the equitable charge was by instituting a suit. Assuming, however, that the lien could be enforced by sale of shares, it has to be considered whether in the instant case the shares could be sold in terms of article 17 of the articles. In this case the resolutions declaring lien and to sell the shares in enforcement of the lien were passed by two directors Dr. Mukherjee and Dr. Neogy. So also the resolution to sell the shares to the defendant Ramapada was passed by the same Dr. Mukherjee and Dr. Neogy. It is argued by Mr. Chaudhury that all steps to enforce the lien by sale must be held by directors properly and lawfully appointed, and if at the material time Dr. Mukherjee and Dr. Neogy were not directors then there has been a non-compliance with the articles and the sale must be held to be invalid. The Companies Act and the articles provide for the appointment of directors by election in the general meetings and by co-option. Except the plaintiff, who is the ex officio managing director, every other director must either be elected in general meeting of the shareholders or appointed in a board meeting. Dr. Mukherjee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be held in violation of the express provisions of section 76 of the Companies Act, not to speak of the illegalities in convening the meeting by a board of directors, which, in law, did not exist on that date. The directors elected in the annual general meeting held on December 7, 1950, in law vacated their office fifteen months after that date, within which the next annual general meeting should have been held. Hence all the acts of these directors including the act of convening the annual general meeting of 1953, holding the meeting, re-electing directors without proper nomination as provided by the articles are invalid. Again, assuming that these directors appointed by the general meeting held on April 6, 1953. could act as such, they in their turn continued to be directors for fifteen months, and if no general meeting is held thereafter, they vacated their office on July 6, 1954. After that date, the company had no directors entitled to act as such. Thereafter, these directors whose office had expired, cannot act as the board of directors of the company. Such a board cannot give any order for convening any meeting of the company, recommend for re-election of directors whose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of appointment would be to ratify all acts done by these so-called directors without authority; in other words, to validate all the. acts done by these directors which otherwise would have been invalid. The learned Advocate-General has pointed out that unless this contention is accepted, all acts done after the expiry of the period when the meeting was required to be convened, that is, 15 months after the last meeting, all acts and transactions of the company would be illegal and void and the position would be intolerable. Surely this could not have been the intention of the Legislature. It is not correct to say that once the period stated in section 76 of the Act is over, no annual general meeting can be convened without the order of the court. Section 76(3) is an enabling section. But apart from it, there is no reason why the requisite number of shareholders under section 78 or 79(2) would not be entitled to convene an annual general meeting, which is overdue and which the directors have defaulted in convening within the prescribed period. If certain technicalities stand in the way, those technicalities should be brushed aside and provided proper notice is given to all enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere in order and were consistent with the articles, having been signed by three directors. The company was wound up and in the winding up proceedings the question arose whether the policy was binding on the company. The court held that it was so binding. Giffard L.J., held that an outsider was not expected to know the indoor management of the company and could not be and was not aware that anything irregular had taken place. The learned Lord Justice upheld the claim under the policy with the following observation: "The company is bound by what takes place in the usual course of business with a third party where the third party deals bona fide with persons who may be termed de facto directors, and who might, so far as he could tell, have been directors de jure. " It is to be noticed that this case is one of defective or irregular appointment. The original directors named in the articles having refused to act, the managing director co-opted directors in their place. In the case of Mahony v. East Holyford Mining Co. Ltd. [1875] LR 7 H.L. Cas. 869, the official liquidator of a company in liquidation sought to recover from the banker the amount paid on cheques drawn by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could have no knowledge of the indoor management and its impropriety. At page 898 Lord Heatherley makes the following observation: "Now whose business was it to see that that was all properly done ? It was the business of the shareholders to see that it was done, and properly done, and if they allowed this duty to be assumed by persons who had no title to it, in their office at 12 Grafton Street, the place where the office of the company was described in the prospectus as being if the allowed persons who were not entitled to do it to carry on all the business of the company there to act as directors and as secretary there; especially if they allowed them to perform the most important business of drawing cheques (for they must have known their own deed which says that that can only be done by a draft of three directors, and they must have known that money must be had for the purposes of the company), if there is a fault on the one side or the other, it is on the side of those who allowed all those transactions to take place, when they were not conducted by persons legitimately appointed on the part of the company. On the other hand, on the part of the bankers, I see no possible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. At the date of the application for allotment of shares, there were two directors and with respect to a third director, there was a letter of resignation which was accepted in the same meeting of the board in which allotment of shares were made to the defendant and the defendant was co-opted as a director in the vacancy created. According to the articles the number of the board should not be less than three. The articles provided that the board of directors shall regulate their meetings and determine the quorum necessary for transaction of business. There was an article like section 86 of the Indian Companies Act. The defendant, after being elected director took part in the meetings wherein shares were allotted to different applicants. The defendant joined the other two directors in writing a letter to the bank manager as to what cheques were to be signed and honoured. After doing all these acts, the defendant withdrew his application for shares. The company instituted a suit to recover the share money on the footing that the defendant was a shareholder and was liable for the share money. It was held that the defendant was liable. Lord Coleridge C.J. based his decision on three p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e would make the election of the three who were elected in 1885 perfectly valid. It appears to me to extend not only to protect people dealing bona fide with the board without knowledge of the disqualification, but also to protect the rate payers, whose guardians and trustees the local board are. I therefore come to the conclusion that fixing the building line was a proceeding which is rendered valid by rule 9." The argument of Cozens-Hardy referred to by Lindley L.J., is to be found in page 357: "The cases under the Companies Act, 1862, section 67, furnish an analogy; they shew that an outsider who knows nothing of the irregularity is safe in dealing with a board of directors however irregularly appointed but that the case is different where the irregularly elected board seeks to impose a liability on others, as, e.g., by forfeiting shares. So here a contractor would have a good claim against the board, but the case of seeking to impose a liability on outsiders apart from contract is quite another matter." Bowen L.J. the third member of the board took the same view as the other two. In Dawson v. African Consolidated Land and Trading Co. [1898] 1 Ch. 6 , a shareho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86). Channel Colliery Trust Ltd. v. Dover, St. Margaret's and Martin Mill Light Ry. Co. [1914] 2 Ch. 506, is also a case in which the appointment of two directors was held to be irregular on the ground that at the time of their appointment they had not acquired qualification shares which were subsequently allotted to them by a board consisting amongst others of the same directors who had not yet the qualification shares. It was held that the irregular allotment was done by de facto directors which validated by the Companies Act as the directors acted bona fide which was not disputed. It was held that the provisions of section 99 of the Companies Act should be construed broadly as between the company and its members as well as between the company and outsiders. Reliance was placed on the observations made at page 515 and set out below. These observations were made after pointing out that the appointed persons were not at the moment of their appointment qualified and a slip was made. Nevertheless acting in good faith they accepted the shares and acted and continued to act as directors. "The question is whether their acts as de facto directors are protected by section 99 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from confirming the resolution of the board of directors removing a director. The ground on which the court was asked to grant an injunction was that only ten minutes before the meeting of the board the petitioner being the director removed was served with the notice of removal. He, however, did not object on the ground of insufficiency of notice nor did he require another meeting to be summoned to consider the question. In the case of In re Consolidated Nickel Mines Ltd. [1914] 1 Ch. 883 , the question was whether a director who continued to act as such after the expiry of office was entitled to remuneration as director. The court held that the directors vacated their office on the last day on which the general meeting for the year could have been held and were not entitled to any remuneration for the subsequent period. At page 888 Sargant J. makes the following observation : "A director on his appointment does not ordinarily step into an office which is perpetual unless terminated by some act, but into an office the holding of which is limited by the terms of the articles..........The duty of the directors was to call a meeting in 1906 and 1907, and they cannot take adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st fail because the plaintiff did not claim to be entitled to any legal character or any right as to property which had been denied by the defendants and, secondly, because in the circumstances of the case the court should not exercise its discretion in granting specific performance. After disposing of the appeal on the above ground the court made the following observation at the penultimate paragraph of the judgment: "With regard to the matter, the articles of association provided that the directors should be elected annually at a general meeting. It follows, therefore, that so long as the general meeting is not held in which the directors are to be elected the directors elected at the previous general meeting would continue in office. It is contended by the learned advocate for the respondent that according to the true interpretation of the articles the directors would hold office only for one year from the date of their appointment, and if no general meeting is held at the lapse of one year the directors would automatically vacate their office and the company would go on without any directors at all. I am unable to accept this contention of the learned advocate as it seems to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en such a meeting is held when the year for which the meeting is held is over, clearly no directors properly can be appointed. But if such an appointment is made its effect would be to ratify the acts of those who purported to act as directors without being lawfully appointed. Only those acts of the directors, however, would be deemed to be ratified by such retrospective appointment as can be ratified in law and it should not be forgotten that ratification only binds the principal and the act done by an agent without authority will become binding on the principal after ratification. It has nothing to do and cannot affect the party other than the principal on whose behalf the agent purported to act without authority. In the instant case by retrospective appointment of Dr. Mukherjee and Dr. Neogy as directors, the company might be deemed to have ratified all the acts of Dr. Mukherjee and Dr. Neogy leading up to the sale of the plaintiff's shares and as such the sale may be binding on the company. Before retrospective appointments the acts of Dr. Mukherjee and Dr. Neogy were unauthorised and hence not binding on the company. But after appointment retrospectively those acts may become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de facto director has been applied to a mere usurper without any appointment whatsoever. The court has upheld the acts done by a director whose appointment is defective but in no case it has gone further to uphold acts of one purporting to act as director without any appointment or whose office has expired. In this state of the law I am not prepared to accept the broad proposition of the learned Advocate-' General, that the de facto director is one who actually acts as such, that he has the same power as a director de jure and that all acts of such a de facto director whether appointed or not should be upheld by the court. If such be the policy of law why enact section 86 of the Companies Act giving only qualified validity to some acts not of all de facto directors but of those only who have been appointed but whose appointment is found to be defective ? It is to be noted that in all cases in which the court upheld the act of a " de facto director" in which the outsider has dealt with such " de facto director" bona fide the court did not uphold the act because it was valid. They were held to be invalid, but the company was precluded from raising the question of the inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... steps in the matter of sale and when the sale actually took place. In the instant case I hold that Dr. Mukherjee and Dr. Neogy were not directors and if after their so-called election on January 6, 1955, they can be called directors at all, they were in any event directors with defective appointment and further the defect in their appointment was shown to them. I am unable to accept the argument of the learned Additional Solicitor-General that an usurper of the office without any appointment or a director whose office had expired is a director within the meaning of the Companies Act and the articles, because he acts as such even though he does it without any lawful authority. Assuming again that the 12th, 13th, 14th and 15th meetings were valid and good, the resolution appointing directors for periods passed restrospectively cannot be anything more than the ratification of acts done by those who purported to act as directors, provided those acts can be ratified. In my judgment Dr. Mukherjee and Dr. Neogy were not directors at any event from July, 1954, onward having vacated their office, and they had no authority under article 17 to declare and/or impose and/or enforce the lien o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that non-compliance of the conditions laid down affects the validity of the sale. Lastly, it is argued that the motive behind the acts of Dr. Mukherjee and Dr. Neogy was not to realise a just debt due to the company by the plaintiff but to deprive the plaintiff of his shares. There can be no reasonable doubt that this was the motive that led Dr. Mukherjee and Dr. Neogy to act in the way they did, namely, fixing the debt at a fantastic figure, declaring the shares to be subject to lien for the payment of such debt, demanding payment immediately after Dr. Mukherjee had occupied the saddle after ousting the plaintiff and selling the shares with the greatest possible expedition. The motive behind these acts on the part of Dr. Mukherjee and Dr. Neogy is clear and palpable. Mr. Chaudhury has argued that when the motive of the directors is not to benefit the company but to promote their own interest by driving away the plaintiff from the company such acts of the directors would not be upheld the court. In support of this argument Mr. Chaudhury has cited the case of Nanalal v. Bombay Life Insurance Co. [1950] 20 Comp. Cas. 179 , decided by the Supreme Court. In this case the dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be held that inasmuch as the sole motive of Dr. Mukherjee and Dr. Neogy in the matter of sale of shares was to drive the plaintiff out of the company and make their own position safe, the sale of shares in the instant case should not be upheld by the court. It has been contended on behalf of the defendants that it has been proved that at the material time the plaintiff was indebted to the company and the shares were subject to a lien and as such liable to be sold in exercise of the lien. The company was entitled to enforce its legal right to enforce the lien by selling the shares. However improper the motive of the directors might be, the legal right of the company to sell the shares to enforce the lien cannot be affected and the motive of the directors has no bearing on the question. The company had a legal right and the company enforced it. The court has no power to question the right of the company to exercise its legal right to sell the shares in exercise of lien for a debt due from the plaintiff as shareholder. The second point urged on behalf of the defendant is that the motive of sale immediately on getting possession of the company on January 24, 1956, was that the director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff of his voting fight so that he may not have the control of the company. If, however, the directors were entitled in law to sell the shares in enforcement of lien for a debt due to the company by the plaintiff, the sale cannot be challenged on the ground of bad motive of the directors. Everybody, including a most scheming person, is entitled to enforce his legal right and motive of the plaintiff is no defence in an action to enforce that legal right. If the directors were lawfully appointed by the company in the instant case then I doubt whether the Supreme Court decision would be of assistance to Mr. Chaudhury. No doubt, the directors were acting in a fiduciary capacity and they must act for the benefit of the company. But the act of recovering a debt due to the company by a director must necessarily be of benefit to the company and in such a case improper motive of the directors would be immaterial and the principles laid down in the Supreme Court case would be hardly applicable. But in this case, the acts were not of directors de jure but only of directors de facto and the acts of the de facto directors are only upheld if the acts are done bona fide in the inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edness to the company, this power should be liberally construed in favour of the company. The parties are bound by their own covenant, and if it can be said on a fair reading of the articles, that there is a covenant whereby the shareholders have agreed that for the purpose of the sale the directors would be the sole authority to determine the amount of a shareholder's indebtedness, then certainly the shareholders are bound by such covenant. If, however, no such covenant is to be found in either article 16 or article 17 of the articles of the company, why should the court presume that such a wide power has been given by the shareholders to the directors. I am not impressed by the argument that the articles should be construed beneficially in favour of the company and hold that the shareholders have given full authority to the directors to determine the quantum of indebtedness and to sell the share to liquidate the indebtedness. In the absence of a clear covenant to that effect, I will not assume that such wide power has been given to the directors. Neither article 16 nor article 17 contains any covenant whereby it can be said that the shareholders have agreed that for the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding that there was a serious dispute and the contention of the shareholder was ultimately upheld by the court, in such a case the court cannot but hold that the directors had no power to sell and were selling wrongfully. This does not mean that the power of sale given subject to conditions is illusory. This argument advanced by the defendant seems to suggest that power in order to be real must be absolute and that restricted and qualified power is wholly unreal and illusory. The terms of the article make it abundantly clear that the power of sale was not intended to be absolute. Sale of shares in enforcement of a debt summarily was recognised to be very serious from the standpoint of the shareholder. Hence it is provided that no sale shall take place unless there is a demand for payment in writing clearly stating the amount due and giving notice that in default of payment the shares will be sold. That is, full opportunity must be given to the debtor shareholder to pay his debt and it is only on his failure to liquidate his indebtedness that the shares may be sold. It cannot, therefore, be contended that even if no proper notice is given stating correctly the amount of liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company and that the conditions laid down in article 17 had not been complied with. These are matters of indoor management which are beyond the knowledge of Ramapada and he was not expected to know of it. He as a stranger was entitled to presume that the directors who acted in the matter were de jure directors, that all things were properly done in the matter of determination of liability, imposition of lien and enforcement of the lien by sale of shares. If anything irregular was done by the directors that cannot affect the title of Ramapada Gupta as purchaser. The case of the defendant Ramapada Gupta has been argued with rare forensic ability and I may state at once that no litigant got better legal assistance than what the defendant Ramapada Gupta got in this case. I need hardly say that the arguments advanced on behalf of the defendant Ramapada Gupta deserve very careful and serious consideration and to the best of my ability I have tried to appreciate them. Assuming that the transaction resulting in the sale of shares is illegal in the sense that the directors under the articles had no power to sell or that the sale had been effected by directors with defective appointmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant Ramapada Gupta. Nobody could have done more to Ramapada Gupta in this litigation than what Dr. Mukherjee did for him. Nevertheless, the fact cannot be ignored that Ramapada Gupta gave this court a wide berth and did not step into the witness box to protest his innocence. It looks as if we are having the drama of Hamlet played in court, with Hamlet's part left out. The importance of this fact was properly appreciated by the legal advisers of Ramapada. It must have been realised that unless satisfactory explanation for not calling Ramapada as a witness is given, which is acceptable to the court, the consequence would be serious. No shelter has been taken by the learned counsel behind the conventional ground of sudden illness or being called away suddenly on urgent piece of business, often taken and seldom accepted by the court. A very bold stand is taken that Ramapada has been advisedly withheld from the court, because Ramapada has been advised that his evidence is not necessary. The reasons given for taking this attitude have now to be very carefully considered. It is urged, in the first place, that on the plaint Ramapada Gupta has no case to meet. The suit as against Ramap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul character of the transaction, but that he acquired this knowledge after the sale and not before. If Ramapada came to know the wrongful character of the transactions after purchasing the shares, then this knowledge would not affect his bona fides in the matter of purchase. But to me the allegations in the plaint clearly amount to knowledge from prior to sale. After fully setting out the facts in support of the case that the sale was wrongful and without authority, it is alleged that the defendant Ramapada "connived and/or otherwise conspired with Mukherjee and Neogy in effecting the said purported sale." This amounts to an averment of knowledge prior to the transaction. Without knowledge prior to the sale, there can be no connivance, no collusion and no conspiracy. It cannot, therefore, be held that the plaint does not disclose any cause of action against the defendant Ramapada Gupta and that in consequence the defendant Ramapada Gupta had no case to meet. It is next argued that assuming that the plaint does disclose a cause of action against defendant Ramapada Gupta, nothing has been proved against him in the proceedings. The plaintiff who is the only witness on his behalf s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... negative is an essential part of the plaintiff's case, the proof of the assertion still rests upon the plaintiff. The terms 'negative' and 'affirmative' are after all relative and not absolute. In dealing with a question of negligence, that term may be considered either as negative or affirmative according to the definition adopted in measuring the duty which is neglected." The point emphasised is that the plaintiff has not discharged this onus, even though it is the onus of proving the negative. Hence there was no necessity for the defendant Ramapada to give evidence in this case. On the basis of the evidence tendered, if the plaintiff has failed to prove that the defendant Ramapada did not act bona fide in good faith, and this being one of the essential facts to be proved in support of the case of the plaintiff, the observation of Bowen L.J. above referred to applies with full force to the facts of this case. In the instant case the want of bona fides on the part of Ramapada consists in his knowledge that the act of the directors in selling the shares was unauthorised and wrongful. That knowledge can be proved by tendering positive evidence. For instance, it may be proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings in this court in suit No. 3112 of 1954 and the proceedings in appeal No. 56 of 1956 from the order of injunction passed by P.B. Mukherji J. in suit No. 3117 of 1954. He had knowledge of the termination of the suits by withdrawal and also of the appeal. He had also knowledge that under an order of the court of appeal the official receiver made over possession of the company to the board of directors consisting of Dr. Mukherjee, Dr. Neogy and D.N. Bhattacharjee. This order was passed in appeal No. 56 of 1955, which was an appeal from an interlocutory order in suit No. 3117 of 1954. Apart from this admission, other facts have been proved in court by Dr. Mukherjee. The defendant Ramapada on 10th January came and saw Dr. Mukherjee and intimated his desire to purchase the shares of the plaintiff. Defendant Ramapada was not interested in purchasing other ordinary shares that were clearly available on that date. The defendant Ramapada took away the papers in connection with the litigation and on the following day made an offer in writing to purchase the shares. The letter containing the offer dated January 11, 1956, was not originally disclosed and the genuineness of the letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having regard to the evidence already tendered. In determining whether the onus has shifted to Ramapada, the evidence to be taken into account is the entire evidence tendered and not the evidence tendered on behalf of the plaintiff alone. Very slight evidence, if at all, is necessary to shift the burden on Ramapada and I hold that such evidence was tendered. It was imperative for the defendant Ramapada to tender his evidence as to the quantum of his knowledge of the transaction resulting in the sale of shares and to prove that he was an innocent purchaser. On Ramapada's failure to tender evidence in support of his own innocence, it must be held that Ramapada had full knowledge of the entire transaction resulting in the sale of shares and on my finding that the transaction was wrongful I am bound to hold that the defendant Ramapada did not act bona fide in the impugned transaction. This finding negatives the argument made on behalf of Ramapada that his purchase is protected by section 86 of the Companies Act and/or by article 19 of the articles of the company or by the rule in Turquand's case ( supra ) . Let me, nevertheless, consider how far the sale is protected on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not protect the sale. The purchaser can only invoke article 19, if he acts bona fide and is an innocent purchaser. I have held that the defendant Ramapada did not act bona fide and that he was not an innocent purchaser. I have held further, that the shares liable to be sold under article 17 are only shares subject to lien, that is, with respect to which the defendant company were in possession of share scrips. In the instant case, the shares were only subject to equitable charge and the way of enforcing the equitable charge is not by sale under article 17 of the articles. Further conditions laid down in article 17 were conditions precedent to the exercise of the power of sale and, in the instant case, the conditions have not been fully complied with. I am. in doubt whether this only amounts to "irregularity or invalidity in the proceedings in reference to the sale" within the meaning of article 19. The rule in Turquand's case ( supra ), as stated in Halsbury's Laws of England, Hailsham Edition, Volume V, page 423 and quoted in Kanssen's case ( supra ), is in the following terms: "But persons contracting with a company and dealing in good faith may assume that acts wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... director, as is clear from the speech of Lord Heatherley in Mahony's case ( supra ) , and noticed before. It is also argued that the outsider will not lose the protection unless he is aware not merely of the fact but their legal consequence, as is clearly indicated by Lord Cozens-Hardy M. R. in the Channel Colliery Trust case ( supra ). "It has been argued for the appellants with great force that this is a clause which ought not to be relied upon by persons who were aware of the facts, although not aware of the legal conclusions resulting from those facts, because such persons must be taken to know the law, and it would be wrong that they should take the benefit of section 99. I am quite unable to accept that view. It seems to me that the questions may be put very shortly: Aye or no, were the parties in the transaction acting in good faith? If they were, section 99 ought to be available for all parties including the directors themselves. If there is a lack of good faith, then of course the court will not allow those who are lacking in good faith to take the benefit of it." The test, therefore, is the presence or absence of good faith. The reasons in support of the rule i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "indoor of a company". But in the instant case, the facts happening indoor of the company are no longer confined indoor. They have been brought out in court. The defendant Ramapada admits some knowledge of the court proceedings and, therefore, what has happened indoor from those court proceedings. Where is the room for assumption in such a case when what was happening indoor can be known and is admitted to be known to the party to a certain extent. Knowledge is admitted by Ramapada. The only question is, how much he knew or could have known. Another point has been raised and has to be considered and that is this: Does the rule in Turquand's case ( supra ) apply to a case in which the dispute is in the title to shares between two rival claimants, even though the dispute has arisen because of the act of the company ? The rule applies in the case of a dispute between an outsider and the company. But the instant dispute is not a dispute between the company and Ramapada, but a dispute between the defendant Ramapada and the plaintiff. The rule in Turquand's case ( supra ) may prevent the company from disputing the title of Ramapada to the shares. But can it be invoked by Ramapa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Turquand's case ( supra ) be invoked by the purchaser, if the chattel happens to be the share of the company? I am not prepared to say that there is no substance in this contention. On the other hand, the reasoning in some of the cited cases may be used in support of the contention that the rule in Turquand's case ( supra ), may apply in such a case. The point is important and, as stated before, it is a point of first impression and need not be decided in this case, having regard to the view I have taken otherwise. Admitting the rule in Turquand's case ( supra ) , and applying it to the facts of this case, what follows? The rule in Turquand's Case ( supra ) fixes on the outsider dealing with the company notice of the memorandum and articles of association. Ramapada, therefore, in the instant case, is, in any event, fixed with the knowledge of article 17. I have held that article 17 gave no power to the directors to sell the shares with respect to which the company had no lien in terms of the articles. From the letter of Ramapada to the company it is clear that Ramapada knew that the shares scrips were not available at that point of time. Hence, even if under the rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director". In this petition the reason of withdrawing the suit is stated to be this: "An amicable settlement has been effected between the plaintiff in the present suit and D.N. Bhattacharjee and these two together hold the controlling shares. In consequence even though the allotment of new shares are recognised, the interest of the plaintiff would be protected. Hence to put an end to the litigation the suit is being withdrawn." No separate petition was filed to withdraw the suit No. 3112 of 1954. But the two suits were withdrawn together at the same date. The defendant Ramapada, who admits to have some knowledge of the proceedings in court, might or might not have knowledge of the proceedings in suit No. 3117 of 1954. There is no evidence to this effect, but the probabilities are that he had knowledge and if he had looked into the petition, he could have known the real reason of withdrawal of the suit. Further, in the petition before the appeal court for delivery of the company to the plaintiff's party it was clearly stated that they were the proper party to whom possession was to be made over by the official receiver and not to Dr. Mukherjee and Dr. Neogy. The court, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer duly executed by the transferor and transferee has been delivered to the company along with the scrip. No transfer deed having been executed and no scrip having been made over to the company in the instant case as required by section 34(3), it was not lawful for the company to register the transfer and record the defendant Ramapada Gupta as the holder of these shares. It follows that even if there has been a sale in favour of the defendant of the shares in suit, in the absence of a deed of transfer duly executed and deposited with the company the company had no power to register Ramapada as the holder of these shares. It is, therefore, urged by Mr. Chaudhury that there must be rectification of the share register by restoring the plaintiff's name as the holder of these shares. It is to be remembered that in the instant case, the shares have not been forfeited and the company was not selling its own shares, in which case no transfer deed would be necessary. The company in the present case was selling the shares of the plaintiff and hence in law a deed of transfer becomes imperative to enable the directors of the company to register Ramapada as the transferee of these shares. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer just like any other transfer and is covered by section 34 of the Act. I do not think that sale of shares by the company in enforcement of lien is excluded from the operation of section 34 of the Act. Two authorities have been cited in support of the contention that even without the transfer deed, registration may be effected by the directors, which may now be considered. The first case is the case of Mohideen Pichai v. Tinnevelly Mills Co. AIR 1928 Mad. 571, decided by a very strong Division Bench of the Madras High Court. The case before the Madras High Court was argued by the most eminent counsel Mr. Varadachariar and Sir Alladi Krishnaswami Ayyar. The point considered was whether a purchaser of share in a court sale is entitled to succeed in a suit for rectification of the share register by recording his name on the strength of his purchase in a court sale. It was held that such a suit is maintainable and must succeed. In his judgment Srinivasa Ayyangar J. made the following observation at page 574: "To begin with, it must be pointed out that the expression 'transfer' by itself is not altogether appropriate to indicate a sale in invitum by the court. No doubt the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a purchaser. It may include transfer effected by an agent of the shareholder with the approval of the shareholder at the time of transfer. But it cannot cover a case of sale of shares by a pledgee when sale is effected in enforcement of the pledge by the pledgee, unless the pledgor expressly consents to the sale. It is on the same reasoning that the sale of shares by a director in enforcement of the pledge can be said to be "transfer" within the meaning of section 34 on the ground that the sale is involuntary. It has not been held in any case that in the case of sale of shares by a pledgee to enforce the pledge transfer deed is unnecessary. If not, how can it be urged that it is unnecessary in the case of sale in enforcement of a lien on the ground that the sale is involuntary. In either case the authority to sell is derived from the owner of the shares, in the case of pledge when the pledge was given and in the case of lien when the shares were purchased. In both cases the sale is effected with the implied consent of the owner consent having been given before, though at the time of sale the owner of the share has not only given no consent but positively objected to the sale. Indee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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