TMI Blog1971 (7) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... any manner as the directors of the respondent No. 3-company. Respondent No. 3 is a public limited company registered under the Indian Companies Act and carries on business, inter alia , as manufacturer of rayon yarn and has its registered office at Bombay. It is the plaintiffs' case that on April 9, 1969, the board of directors appointed the appellants as additional directors of respondent No. 3-company. The board of directors consisted at that time of 8 members excluding those additionally appointed directors. The plaintiffs have referred to the 8 directors as functioning directors and that may be to distinguish them from the appellants who are appointed additional directors. Thereafter notices dated l0th April, 1969, were received by respondent No. 3-company proposing the appellants as directors at the next annual general meeting. On June 11, 1969, the 22nd annual general meeting of the respondent No. 3-company was convened. At the general meeting two directors, Kasturbhai Lalbhai and Naval H. Tata, retired by rotation and were again re-elected as directors. At the same meeting by two separate resolutions, the appellants were appointed directors. The two resolutions are refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dity of their appointment on all the grounds alleged by respondent No. 3-company. In addition the appellants stated that on their appointment as additional directors, the strength of the board was increased to 10 directors. In paragraph 8 of the written statement it is submitted that they were not required to file any letters of consent under section 264(1) of the Act before their appointment as directors at the meeting. Without prejudice to this defence it is also pleaded that they did file the letters of consent on 9th April, 1969, with respondent No. 3-company. They argued that, as additional directors, they were persons to whom section 264(1) of the Act did not apply. Assuming that there was any such requirement, it is asserted that it was a mere irregularity and that did not disable them from acting or functioning as directors. The made it clear that it was implicit in the two resolutions appointing them as directors that the number of directors was, if necessary, being increased. According to them no separate resolution under section 258 or article 169 of the articles of association of the company was necessary for increasing the number of directors from 8 to 10. At any rate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted the injunctions against respondent No. 3-company and the appellants. As stated above the appellants, aggrieved by the decree, have come to this court with the present appeal. Mr. Nariman appears for the appellants. Mr. Thakkar with Mr. Mody, instructed by M/s. Haridas Co., appears for respondents Nos. 1 and 2, the original plaintiffs. Mr. D. H. Buch with Mr. G. K. Munshi, instructed by M/s. Bhaishankar Kanga and Girdharilal, appears for respondent No. 3-company. It must be stated at the outset that respondents Nos. 1 and 2 have purported to file cross-objections against the finding recorded by the learned judge about the consent letters under section 264(1) of the Act. Mr. Thakkar conceded that the cross-objections are misconceived but mentioned that he had the right, as an advocate appearing for the respondents, to assail the decree under appeal on any of the grounds decided against him. Therefore, the points for determination in this appeal are : ( 1 )Whether the board of directors of the company before and after the annual' general meeting consisted of ten members or whether at the annual general meeting the strengh of the board of directors was increased from 8 to 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des that the board of directors, if permitted by the articles of association, can appoint additional directors. The board is to exercise that power so as not to exceed the maximum strength fixed for the board by the articles. The first proviso to section 260 makes it clear that such additional directors shall hold office only up to the date of the next annual general meeting of the company. Section 262 deals with the filling of casual vacancies amongst directors. Under section 263(1) ordinarily there will be only one resolution for the appointment of one director at the annual general meeting of the company. A single resolution is permitted under certain special circumstances for appointing more than one director. Section 263(2) provides that a resolution moved in contravention of sub-section (1) shall be void, whether or not objection was taken at the time to its being so moved. Section 264(1) under certain circumstances requires that the candidate for directorship should file his written consent with the company before his appointment as director at the meeting. Section 264(2) requires that a person appointed as a director shall not act as a director unless he has within the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel on either side did refer to other sections and articles to elucidate the various points raised by them. I need not consider them all at this stage. The first point made by Mr. Nariman on behalf of the appellants is about the strength of the board of directors of the company. He objected to the expression "functioning directors" and "additional directors" as used by the plaintiffs in the plaint. He said that there is no warrant for any such distinction. Whether the directors are appointed at the meeting or by the board of directors, they all together constitute the board. The directors in that capacity have the same rights, privileges and obligations under the provisions of the Act. He referred to the definition of "director" as contained in section 2(13) of the Companies Act. In all other places in the Act the board of directors was mentioned as such and he says that the distinction sought to be made by the plaintiffs is without any legal significance. It appears to me that the plaintiffs have used the different expressions only for a better understanding of their case. The appellants were, in the first instance, appointed as additional directors and later on they were re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Then Mr. Nariman argued that the learned judge was not justified in holding that the company can increase the strength of the board only by passing a separate and distinct resolution before proceeding to appoint directors by filling the additional sanctioned posts. I have not used the exact words of the learned judge but in substance that appears to be the finding recorded by him. According to Mr. Nariman all that section 258 requires is that the company, subject to the other restrictions imposed on it, must resolve to increase or reduce the number of directors in the general meeting. The section itself has not prescribed any other formality for effecting the increase or decrease in the number of directors. Mr. Nariman points out that under the Companies Act, wherever separate resolutions were found necessary, provisions were made in that behalf. He referred to section 263 of the Act. I have already mentioned above the substance of that section. Ordinarily, there will be a separate resolution for appointing a person as a director at the annual general meeting of the company. Mr. Nariman says that the company can exercise the power vested in it under section 258 by passing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncrease the number". About the power of the company to increase the number of directors under its articles of association, the learned author in his book Pennington's Company Law, 2nd edition, pages 456-57, sums up the legal position as under: "The power to appoint subsequent directors is usually exercisable by the members of the company in general meeting by ordinary resolution. If the articles prescribe the maximum number of directors who may be appointed, appointments in excess of the maximum are void. Usually, however, the members are empowered to increase or reduce the maximum number of directors by ordinary resolution, and then an appointment of a director in excess of the former maximum is taken to be an exercise of the power to increase the number of directors, and is valid". While making the last-mentioned observation, the learned author in the foot-note has referred to the above-mentioned case. So Mr. Nariman argued that section 258 was an enabling section which authorised the company to increase or decrease the number of directors just by an ordinary resolution. As singular includes plural, one has to look at the result and not the number of resolutions to find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectors. That appears to be a sensible construction which can be adopted while interpreting the relevant provisions contained in section 258 of the Companies Act, 1956. In the result, in my opinion, it is not necessary for the company to pass a separate resolution increasing the number of directors before appointing the directors to fill the additional sanctioned posts. In law it is possible for the company to comply with the provisions of section 258 when it chooses to appoint within the permitted limit additional directors so as to increase the strength of its present board. The learned judge was in error in coming to the conclusion that in the absence of a separate resolution the appointment of the appellants as directors of respondent No. 3-compauy was null and void. The legality of the resolutions Nos. 5 and 6 cannot be challenged on the ground that there was any contravention of the provisions of section 258 of the Act. Then I propose to consider points Nos. 3 and 4 together as the discussion of law is likely to be overlapping. Point No. 3 will involve the consideration of the provisions of sections 172 and 173 of the Act and point No. 4 is about the sufficiency or otherwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read as under: "Shri Laljibhai Chhaganlal Kapadia was appointed an additional director on 10th April, 1969, by the board of directors of the company and he retains his office as a director only up to the date of this annual general meeting under the provisions of section 260 of the Companies Act, 1956. As required by section 257 of the Companies Act, 1956, a notice has been received from a member signifying his intention to propose his appointment as a director. It is recommended that he be appointed as a director". Explanatory statement accompanying Item No. 8 is identical with the difference that it is in respect of the other additional director, Shri Nimjibhai Chhangalal Kapadia. Relying on the contents of the notice in general and the explanatory notes in particular, Mr. Nariman submits that there is compliance with the requirement of section 173 of the Act. Mr. Nariman points out that under article 164 of the articles of association of the company, at every annual general meeting of the company, one-third of such of the directors for the time being as are liable to retire by rotation or if their number is not three or a multiple of three, the number nearest to one-third ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ariman in this connection heavily leaned upon a decision of the Orissa High Court in Kalinga Tubes Ltd. v. Shanti Prasad jain A.I.R. 1963 Orissa 189 . The learned judges of the Division Bench of that High Court had to tackle a similar point about the sufficiency or otherwise of the pleadings. While dealing with the issue No. 4( a ) in that proceeding Misra J., at page 202, in paragraph 17, observed as follows : "The notice is challenged as fraudulent and contrary to the statute. None of the grounds have been pleaded. For the first time this contention appears to have been advanced in course of argument before Mr. Justice Barman. In none of the affidavits the petitioner swears that the notice was tricky, misleading or insufficient. The question is one of mixed question of fact and law, and it is not permissible to be taken at the stage of hearing for the first time". The learned judge certainly refers later on to section 172(1) and section 173(2) of the Act. At page 214, paragraph 58, Das J. observed as follows : "At the outset, I must say that the plea of invalidity of the notice was not taken either in the plaint which was filed in the court of the subordinate judge or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planatory statements, then it was open to the defendants to adduce evidence and satisfy the court that the plaintiffs by their conduct were stopped from objecting to the legality of the resolutions. As an instance of the so-called irregularity, Mr. Nariman referred to In re Express Engineering Works Ltd. (1920, 1 Ch. 466 (C.A.) It was a case where the legality of the company's meeting was challenged on the ground that it was styled a directors' meeting and business was transacted as if it was a general meeting. The issue of debentures at the meeting W.I.P challenged as not valid. Younger L.J. agreed with Lord Sterndale M.R., who held that the shareholders must be deemed to have acted in the meeting as shareholders and not as directors. What is stated by Younger L.J. at page 471 is to the following effect : "I am of the same opinion. I am content to rest my conclusion upon what was said by Lord Davey in Solomon's case [1897] A.C. 22, 57 that a company is bound in a matter which is intra vires by the unanimous agreement of all the corporators". But, this decision is not of any assistance to us. A syndicate of five persons formed a private company. They were all the director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the nullification of the action taken". Mr. Thakkar reinforced his argument by reference to a Calcutta decision 1 in which it was held that it was incumbent on the directors to disclose in the notice of the general meeting full facts. Before I refer to the relevant observations of the learned judges, it is necessary to know in brief the facts of that case. Section 294(2) of the Companies Act (as amended by Act 65 of 1960) provides that the appointment of a sole selling agent by the board of directors shall cease to be valid if it is not approved by the company in the first general meeting held affter the date on which the appointment is made. The court held that the provision was not directory but mandatory. The mere substantial compliance was not enough but there must be a strict compliance. The impugned agreement about the appointment was referred to in the report of the directors and the same was adopted in the subsequent adjourned annual general meeting. But the adoption or approval of the report was treated as ordinary business and not as a special business. In the circumstances, the learned judges allowed the appeal and granted ad-interim injunction against the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, a statement setting out all material facts concerning each such item of business, including, in particular, the nature of the concern or interest, if any, therein, of every director, the managing agent, if any, the secretaries and treasurers, if any, and the manager, if any. The object underlying section 173(2) is that the shareholders may have before them all facts which are material to enable them to form a judgment on the business before them. Any fact which would assist them in making up their mind, one way or the other, would be a material fact under section 173(2) and has to be set out in the explanatory statement. This provision is mandatory and not directory and disobedience to its requirements must lead to nullification of the action taken". Then Mr. Thakkar brought to my notice one more decision of the Calcutta High Court in Shalagram Jhajharia v. National Company Ltd. [1967] 1 Comp. L.J. 29 (Cal.) It must be noted that the subject-matter of the litigation in this case was an impugned selling agency agreement which figured in the Calcutta decision cited earlier by Mr. Thakkar. The plaintiff challenged the legality of the notice of the annual general meeting on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue notice will be invalid". To reiterate with emphasis the importance of the notice of a meeting, Mr. Thakkar referred to Grundt v. Great Boulder Proprietary Gold Mines Ltd [1948] 1 All E.R. 21, 24 (C.A.) . Article 102 of the articles of associations of the company provided as follows : "If at any general meeting at which an election of directors ought to take place the place of any director retiring by rotation is not filled up, he shall, if willing, continue in office until the ordinary meeting in the next year, and so on from year to year until his place is filled up, unless it shall be determined at any such meeting on due notice to reduce the number of directors in office". The question arose whether the plaintiff, a retiring director, despite his failure to get re-elected, continued in office. His claim was resisted on the ground that the company in effect had at its meeting reduced the number of directors. Cohen L.J. overruled the contention and held that the number of directors in office cannot be reduced unless there was a specific resolution of the company to that effect after a mention of the general nature of such a resolution has been made. The concluding wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as to the purpose for which it is convened, chooses to assent to this, there is no reason why it should not do so ; but I think it ought to have the opportunity of considering the point. The man I am protecting is not the dissentient, but the absent shareholder 14 the man who is absent because, having received and with more or less care looked at this circular, he comes to the conclusion that on the whole he will not oppose the scheme, but leave it to the majority. I cannot tell whether he would have left it to the majority of the meeting to decide if he had known the real facts. He did not know the real facts ; and, therefore, I think the resolution is not binding upon him". Now, I may sum up what emerges from these various authorities cited by Mr. Thakkar. Bearing in mind the object of the legislature, I must say that section 173 is mandatory and not directory. It is in the interest of the general body of shareholders that the legislature has made provisions in section 173(2) requiring the notice of a meeting to set out a statement containing all material facts concerning each special item of business. A notice of meeting when it contains items of special business within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirements of the provisions of the Companies Act. Mr. Thakkar says that though the plaintiffs have alleged contravention of the Companies Act, they have by implication referred to the requirements of an explanatory statement under section 173 of the Act. Then Mr. Thakkar also read out portions of the written statement of the appellants, particularly paragraphs 9 and 10, which, according to Mr. Thakkar, show that the defendants were aware of the challenge made by the plaintiffs to the legality of the resolutions on the various grounds. Even apart from the pleadings, according to Mr. Thakkar, the parties were aware of all the relevant facts and the point about the applicability of section 173 of the Act. In this connection reliance was also placed on the affidavits filed at the interlocutory stage in support of the notice of motion taken out for interim relief. Plaintiffs had in their affidavits referred to the defective explanatory statement and said that there is non-compliance with the requirements of section 173. A reference was also made to the appeal memo. (A.O. No. 436 of 1970) filed by the respondents in this court against the interlocutory order. After considering all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made a proposal that two more additional directors be appointed at the meeting and if possible the two named persons be elected to fill up those additional posts. In my opinion this is nothing short of a proposal to increase the strength of the board of directors from 8 to 10. Mr. Thakkar tried to show that all this information has nothing to do with the proposal to increase the number of directors. But, despite his best efforts, he was not in a position to convince me that all this information was in connection with some other intelligible topic, I have not been able to place any other construction on items Nos. 7 and 8, and in my opinion the plaintiffs have failed to make out a case that there is no information at all about the proposed special business accompanied by the required explanatory statement. Then Mr. Thakkar argued that at any rate the court must hold that the information given along with the explanatory note is wholly misleading. Mr. Thakkar pointed out that the board of directors has nowhere indicated in the notice or the explanatory statement as to why it had made a proposal for increasing the number of directors. Mr. Nariman, on the other hand, submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eappointment by the company. This question involves the interpretation of section 264(1) of the Act. Section 264(1), as it originally stood in 1956, has gone through a process of one or two amendments. Before I consider the point and the various possible interpretations of section 264, it will be necessary to state a few more facts. On April 9, 1969, there was a move for appointing the appellants as additional directors. On the same day two letters were separately addressed by the appellants to the company. The letters purported to be consent in writing duly signed under section 264(1) of the Act. The appellants have indicated their consent to act as a director of the company if appointed. On April 10, 1969, the board of directors appointed the appellants as additional directors under section 260 of the Act. On April 10, 1969, separate proposals by two members were made in favour of the appointment of the appellants as directors at the ensuing meeting. Defendant No. 1, the company, in its written statement, has stated that after the receipt of the letters of consent dated April 9, 1969, the appellants were appointed as additional directors. Mr. Thakkar referred to Form No. 29, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the wording is the deletion of the words "shall not be capable of being appointed". Section 264(1) dispenses with the formal consent in the case of a person who has proposed himself as a candidate for the office of a director under section 257 of the Act. Subsection (2) requires all persons newly appointed as directors to file with the Registrar within 30 days of their appointment a consent in writing to act as a director. Sub-section (2) makes it clear that, unless such a consent is filed, the person appointed shall not act as a director. Thereafter, by Act No. 31 of 1965, the section is substantially amended and I have to consider the section so amended. The section, in the present form, is as follows ; "264. (1) Every person (other than a director retiring by rotation or otherwise or a person who has left at the office of the company a notice under section 257 signifying his candidature for the office of a director) proposed as a candidate for the office of a director shall sign, and file with the company, his consent in writing to act as a director, if appointed. (2) A person other than ( a )a director reappointed after retirement by rotation or immedi ately on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radical changes during its passage through the House or Houses, and there is no guarantee that the reasons which led to its introduction and the objects thereby sought to be achieved have remained the same throughout till the Bill emerges from the House as an Act of the legislature, for they do not form part of the Bill and are not voted upon by the members. We, therefore, consider that the statement of objects and reasons appended to the Bill should be ruled out as an aid to the construction of a statute". But Mr. Thakkar admitted that the rigour of the rule laid down in the above-mentioned case was relaxed in a subsequent decision of the Supreme Court in Commissioner of Income-tax v. Smt. Sodra Devi [1957] 32 I.T.R. 615, 621, 628 ; [1958]S.C.R 1 ; A.I.R. 1957 S.C 8.52 , where Bhagwati J., at page 835, says : "It is clear that unless there is any such ambiguity it would not be open to the court to depart from the normal rule of construction which is that the intention of the legislature should be primarily gathered from the words which are used. It is only when the words used are ambiguous that they would stand to be examined and construed in the light of surrounding circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.' And Lord Penzance said Howard v. Bodington [1877] 2 P.D. 203, 211 : 'I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter ; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory". Viewed in the light of these principles, the section, in my opinion, appears to be directory in so far as the person who desires to be a candidate for the office of a director would be required to file his consent. The object of the legislature is evident when one considers the various amendments made by the legislature before the section was enacted in the present form. Those who have once acted as directors were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has filed the consent within the prescribed time. No argument is necessary for saying that the sub-section is mandatory. Then Mr. Thakkar submitted that the learned judge was in error in holding that there is realty no difference between the retiring director and the additional director while considering the application of section 264(1) of the Act. As all the relevant points were urged before me I had to consider them and give my decision accordingly. In fact when I found that the section is directory it is sufficient for the final disposal of the appeal but these are all points of law touching the interpretation of section 264(1) as a whole and, therefore, I must consider each point urged by the counsel separately. That takes me to the interpretation of the key words in section 264(1) "or otherwise". The learned judge while considering these words has relied on the dictionary meaning of the expression "retire". A person retires when he ceases to hold a particular office. There is no difference between retiring by rotation and retiring by ceasing to hold office. The additional directors appointed under section 260 hold office only up to the date of the next annual general me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the company. At the commencement of the ordinary general meeting they will be no longer in office. But, the retiring directors and the other continuing directors will act as directors throughout the meeting. In others words, they would constitute the total number of directors for deciding the proportion of the directors retiring. Romer L.J., at page 257, sums up the legal position in the following words : "I agree that in the circumstances the number of directors to be considered is the number of directors existing at the moment when the ordinary general meeting begins, and inasmuch as at the particular moment that it begins the two directors elected under article 90 cease to be directors, the number of directors then must be taken to be five and not seven". Mr. Thakkar relies on this decision for underlining a similar distinction between the directors retiring by rotation at every annual general meeting and the additional directors holding office only up to the date of the next annual general meeting. Mr. Thakkar says that when the legislature has used the expressions like "retiring" and "holding office" up to a particular point of time, the court will have to interpret t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept this interpretation of section 256(1). Section 256(1) provides : "....one-third of such of the directors for the time being as are liable to retire by rotation, or if their number is not three or a multiple of three, then, the number nearest to one-third, shall retire from office". In the illustration given by Mr. Thakkar, certain fixed number of directors will remain in office permanently and the others will retire, so as to enable the company to fill up those vacancies. Those who are retiring in this manner are, according to Mr. Thakkar, not retiring by rotation. I am not prepared to accept this interpretation of section 256(1) of the Act. When few of the directors retire in the manner indicated in section 256(1) of the Act, then they are retiring by rotation. If the articles so provide, all the directors may retire and that retirement certainly will not be covered by the expression "retiring by rotation". On a reference to the Shorter Oxford Dictionary, volume II: N-Z, 3rd edition, revised with addenda, I find that the adverb "otherwise" means in another way or in other ways. Whether the expression "otherwise" would include one or more classes is not clear. At any r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 264(1) or sub-section (2) was necessary in the case of persons who had immediately before the reappointment acted as directors. Considering the object of the amendment there is no reason why the additional directors who are expressly exempted from the requirement of filing a consent under section 264(2) should be excluded while construing a somewhat similar exemption under section 264(1) of the Act. In my opinion the expression "otherwise" covers all the other directors who for one reason or the other cease to hold office and are immediately thereafter reappointed as directors. For these reasons I hold that the learned judge was right when he recorded a finding that additional directors are not required to file any written consent under section 264 of the Act, as a condition precedent for the validity of their re-appointment. Then Mr. Nariman submitted that no such consent under section 264(1) is required for appointment of any person as an additional director under section 260 of the Act. He relies on the wording of section 264(1), viz . : "Every person proposed as a candidate for the office of a director shall sign and file with the company, his consent in writing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their appointment in the general meeting. Once it is found as a fact that no consent was required for the appellants' appointment as additional directors, then there is no reason why the appellants should not be allowed to rely upon the letters of consent, when the validity of their appointment is challenged by the plaintiffs. Letters of consent were to be filed duly signed by the persons concerned with the company. They are so signed and filed with the company. There are no words used in the letters to indicate that they had given the consent only to act as additional directors, if appointed. In the absence of any such restrictive words, it can be fairly assumed that they gave their consent in writing not only to act as additional directors, if appointed, but also to act as directors, if appointed. In my opinion even for this additional reason the appointment of the appellants cannot be challenged. The last point raised in the present appeal is about the maintainability of the suit. Mr. Nariman, consistent with the appellants' stand in the lower court, submits that the plaintiffs have come to the court with certain grievances about the irregularities committed by the company whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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