judgement:
Petition No. 7962 of 1977.
(Application for Intervention) Civil Appeal No. 1347(N) of 1977 Shankar Das Ghosh, J. B. Dadachanji, K. J. John and Shri Narain for the Appellants in the Appeal and Opp.
party in CMP.
7962/77.
A. K. Sen, R. P. Bhatt, E. C. Agrawala, section section Khanduja and section Sahni for Respondents Nos.
1 6. 425 Niren De and section V. Tambvekar for the applicant/Interveners (Bharat Refineries).
The Judgment of the Court was delivered by DESAI, J.
This miscellaneous petition by Interveners raises a short but interesting question in the field of Company Law.
Briefly stated, the facts leading to the present miscellaneous petition are that Company Petition.
No. 85 of 1975 was filed by Jairam Das Gupta and others (for short 'Gupta Group ') in the Calcutta High Court under sections 397 398 of the , complaining of oppression by the majority, and praying for various reliefs.
Respondents in this petition were Cosmosteels Private Limited (for short 'the Company ') and three others who would be referred to in this judgment as 'Jain Group.
By an order made by the Company Judge on 21st April 1977 the Board of Directors of the Company was superseded and one Mr. Sachin Sinha, Advocate, was appointed as Administrator to discharge various functions set out in the order.
The Court also appointed Mr. N. Chakraborty, a Chartered Accountant and Auditor to investigate into the accounts of the Company and one Mr. ' A. K. Dey, Engineer and Surveyor for valuation of the assets of the Company and further the Auditor and the Surveyor after investigation of the accounts and evaluation of the assets of the Company were to determine the break up value of the shares as on the date of the petition and on the determination of such break up value the Administrator was to call upon the Jain Group to purchase the shares belonging to the Gupta Group within a period of three months from the date of service of notice failing which the Administrator was directed to purchase the shares of the Gupta Group for the Company at the break up value determined as hereinabove mentioned.
A further, ,direction was given that if the Company was required to purchase the shares of Gupta Group on the failure of the Jain Group, the capital of the Company would protanto stand reduced.
There were also some other directions which are, not relevant for the purpose of this judgment.
Against this Order made by the Company Judge, the Jain Group and the Company preferred an appeal under the Letters Patent and certain interim reliefs were sought.
On an undertaking given on behalf of the Jain Group, the order superseding the Board of Directors and payment of Rs. 7 lacs to certain parties was stayed but the order directing valuation of the shares was not stayed and the proceeding for valuation was to go on.
The Company was restrained by an injunction of the Court from creating any encumbrance on the assets of the Company and dealing with or disposing of its assets or spending any of its money except in usual course of business with a certain ceiling fixed.
This, interim relief was modified by the order made on 25th April 1977 by which the Company was directed to carry out the order for payment of Rs. 7 lacs to the persons named in the order under appeal within a fortnight from the date of the order failing which the Administrator appointed by the learned trial Judge was to take over possession for the purpose of making payment of Rs. 7 lacs.
The direction for investigation of the accounts of the Company was stayed and simultaneously the proceeding for evaluation was also 426 stayed.
This order dated 25th April 1977 was, challenged in Special Leave Petition No. 2042 of 1977 preferred by the Company and the Jain Group.
3801/77 was moved on behalf of the appellants, for certain interim reliefs.
This Court by an order dated 12th May 1977 granted stay of the, order of the Division Bench dated 25th April 1977 directing refund of Rs. 7 lacs by the Company and in default by the Administrator.
The order of injunction granted by the learned trial Judge and confirmed by the Division Bench was kept alive subject to the same condition about not encumbering the assets of the ' Company.
The appellants then sought liberty to amend the Special Leave Petition by including a prayer for special leave against the order of the learned Company Judge dated 21st April 1977 which was granted by the Court and also special leave to appeal was granted.
The appeal came to be numbered as Civil Appeal No. 1347(N) of 1977.
The parties settled the dispute as per the consent terms and requested this Court to make an order in terms of the consent terms.
The Court accordingly made an order on 31st May 1977 disposing of the appeal in terms of the consent terms.
The only term relevant for the present purpose is the one by which the Company was directed to purchase 1300 shares held by the Gupta Group.
The price of the shares was to be determined by Messrs. Price Water House and Peet, Chartered Accountants and Auditors, as on the date of the filing of the petition under sections 397 398 on the basis of the existing as also contingent and anticipated debts, liabilities, claims, payments and receipts of the Company.
The Chartered Accountants were to determine the value of the shares after examining accounts and calling for necessary explanations and after giving opportunity to both the groups to be heard in the matter and the determination of the value by the Chartered Accountants was to be final and binding and not open to any challenge by either side on any group whatsoever.
On the value being so determined the Company had to purchase the shares and on such purchase, the share capital of the Company was to stand reduced protanto.
After the appeal was thus disposed of on 31st May 1977, the interveners filed the present miscellaneous petition on 22nd August 1977 requesting the Court to permit them to intervene in the proceedings pending in Civil Appeal No. 1347 of 1977 and to postpone the purchase of shares by the Company until such time as the Company adopts proceedings in a competent Court by following the procedure laid down by the , and particularly sections 100 to 104 for reduction of the share capital.
In the alternative there was a prayer for safeguarding the claims of interveners by modifying the order dated 31st May 1977.
The interveners claim to be the creditors of the Company to the tune of Rs. 40 lacs.
They say that the 'Cosmos Pioneer ', an Oil tanker belonged to the Company.
By a Tanker Time Charter Party executed on 21st November 1972 between the Company on the one hand and Burmah, Shell Oil Storage and Distribution Co. of India Ltd., and ESSO Eastern Inc., on the other the vessel 'Cosmos pioneer, was chartered in Indian Coastal waters for carriage of petroleum products.
Pursuant to this contract the vessel was loaded at Bombay Port on, 42 7 15th June.
1973 for carrying cargo to the port of Kandla.
On the voyage the vessel ran aground and was stranded on 18th June 1973 and the vessel and the cargo were abandoned.
Intervener No. 2 is the underwriter with whom the charterers had effected an insurance, covering the marine adventure of the aforesaid cargo and presumably on payment of the loss the underwriter has been subrogated.
The interveners have filed two suits being Suit No. 729/74 by the inter vener/petitioners and another suit No. 933/76 by Bharat Refineries Ltd. and Hindustan Petroleum Corporation against the Company and the total amount sought to be recovered in the two suits comes to Rs. 40 lacs.
Both the suits are pending.
The interveners say that they are thus creditors of the Company and before any reduction in the share capital of the Company is effected, the creditors are entitled to notice because by the reduction they are likely to be adversely affected.
There was some dispute before us whether there was any subs tance in the claims of the.
interveners and whether they could be said to be creditors of the Company but for the purpose of this judgment we will proceed on the assumption that they are creditors of the Company.
But even on this assumption, can it be said that the order of this Court dated 31st May 1977 directing the Company to purchase the shares of the Gupta Group and providing that consequent upon this purchase, the share capital of the Company would protanto be reduced, is bad for want of notice to the, interveners and other creditors of the Company ? Section 77 prohibits the Company from buying its own shares unless the consequent reduction of capital is effected and sanctioned in pursuance of sections 100 to 104 or section 402.
This section places an embargo on the Company purchasing its own shares so as,, to become its own member but the embargo is lifted if the Company reduces its share capital protanto.
It is clear that this section envisages that on purchase by a Company of its own shares, reduction of its share capital may be effected and sanctioned in either of two different modes : (i) according to the procedure prescribed in sections 100 to 104; or (ii) under section 402, depending upon the circumstances in which reduction becomes necessary.
Sections 100 to 104 specifically prescribe the procedure for reduction of share capital where the Articles of the Company permit and the Company adopts a special resolution which can only become effective on thee Court according sanction to it.
On the, other hand, reduction of share capital may have to be done pursuant to a direction of the Court requiring the Company to purchase the shares of a group of members while granting relief under section 402.
Both the procedures by which reduction of Capital of a Company may be ' effected are distinct and separate and stand apart from each other.
It would not, therefore, be correct to say that whenever it becomes necessary to reduce the capital of a Company the reduction can be brought about only by following the procedure prescribed in sections 100 to 104.
There is another independent procedure prescribed in section 402 and recognised by section 77, by which reduction of the share capital of a Company can be effected.
But both these 2 1146 SCI/77 428 procedures have one feature in common, namely, that there is Court 's intervention before the Company can reduce its share capital, and this is of vital importance from the stand point of creditors of the Company.
Sections 100 to 104 provide a detailed procedure for reduction of share capital.
Without being exhaustive section 100 mentions three modes of reduction of share capital, viz., (i) extinction or reduction of the liability on any of the shares in respect of share capital not paid up, (ii) cancellation of any paid up share capital which is lost or is unrepresented by available assets, and (iii) paying off any paid up share capital.
Section 101 provides that a Company which has adopted a special resolution for reduction of share capital has to move the Court by a petition for an order confirming the reduction.
A detailed procedure is prescribed which the Court should ordinarily follow before confirming the resolution.
This procedure has to be followed where the proposed reduction of share capital involves either the dimunition of liability in respect of unpaid share capital or payment to any shareholder of any paid up share capital and in any other case if the Court so directs.
But even in first mentioned two cases, sub section (3) confers a discretion on the Court to dispense with the procedure if the Court having regard to any special circumstances, thinks proper to do so.
The procedure envisages a Est of creditors to be settled and a notice to be published which will enable the creditors whose names are included in the Est to object to the reduction and a provision has to be made in respect of dissenting creditors.
Sections 397 and 398 enable the minority shareholders to move the Court for relief against oppression by majority shareholders.
In a petition under sections 397 and 398, section 402 confers power upon the Court to grant relief against oppression, inter alia, by providing for the purchase of shares of any of the members of the Company by other members thereof or by the Company and in the case of purchase of its shares by the Company, the consequent reduction of the share capital of the Company.
Rule 90 of the Companies (Court) Rules, 1959, provides that where an order under sections 397 and 398 involves reduction of capital, the provisions of the Act and the Rules relating to such matter shall apply as the Court may direct.
The question is: whether when on a direction given by the Court, while granting relief against oppression to the minority shareholders of the Company, to the Company to purchase the shares of some of its members which would ipso facto bring about reduction of the share capital because a Company cannot be its own member, is it obligatory to serve a notice upon all the creditors of the Company ? It was conceded that the procedure prescribed in sections 100 to 104 is not required to be followed where reduction of share capital is necessitated by the direction given by the Court in a petition under sections 397 and 398.
Section 77 leaves no room for doubt that reduction of a share capital may have to be brought about in two different situations by two different modes.
Undoubtedly, where the Company has passed a resolution for reduction of its share capital and has submitted it to the Court for confirmation the procedure prescribed by sections 100 429 to 104 will have to be followed, if they are attracted.
On the other hand, where the Court, while disposing of a petition under sections 397 and 398, gives a direction to the Company to purchase shares of its own members, a consequent reduction of the share capital is bound to ensue, but before granting such a direction it is not necessary to give notice of the consequent reduction of the share capital to the creditors of the company.
No such requirement is laid down by the Act.
Two procedures ultimately bringing about reduction of the share capital are distinct and separate and stand apart from each other and one, or the other may be resorted to according to the situation.
That is the clearest effect of the disjunctive or in section 77.
The scheme of sections 397 and 406 appears to constitute a code by itself for granting relief to oppressed minority shareholders and for granting appropriate relief, a power of widest amplitude, inter alia, lifting the ban on company purchasing its shares under Court 's direction, is conferred on the Court.
When the Court exercises this power by directing a purchase of its shares by the Company, it would necessarily involve reduction of the capital of the Company.
Is such power of the Court subject to a resolution to be adopted by the members of the Company which, when passed with statutory majority, has to be submitted to Court for confirmation ? No canon of construction would permit such an interpretation in which the statutory power of the Court for its exercise depends upon the vote of the members of the Company.
This would inevitably be the situation if reduction of share capital can only be brought about by resorting to the procedure prescribed in sections 100 to 104.
Additionally it would cause inordinate delay and the very purpose of granting relief against oppression would stand self defeated Viewed from a slightly different angle, it would be impossible to carry out the directions given under section 402 for reduction of share capital if the procedure under sections 100 to 104 is required to be followed.
Under sections 100 to 104 the Company has to first adopt a special resolution for reduction of share ,capital if its articles so permit.
After such a resolution is adopted winch, of necessity must be passed by majority, and it being a special resolution, by a statutory majority, it will have to be submitted for con firmation to the Court.
Now, when minority shareholders complain of oppression by majority and seek relief against oppression from the Court under sections 397 and 398 and the Court in a petition of this nature considers it fair and just to direct the Company to purchase the shares ,of the minority shareholders to relieve oppression, if the procedure prescribed by sections 100 too 104 is required to be followed, the resolution will have to be first adopted by the members of the Company but that would be well nigh impossible because the very majority against whom relief is sought would be able to veto a at the threshold and the power conferred on the Court would be frustrated.
That could never have been the intention of the Legislature Therefore, it is not conceivable that when a direction for purchase of shares is given by the Court under section 402 and consequent reduction in share capital is to be effected the Procedure, prescribed for reduction of share capital in sections 100 to 1 04 should be required to be followed in ,Order to make the direction effective.
430 A very serious apprehension was voiced by Mr. De that if the Court directs the Company to purchase the shares of some of its.
members while granting relief against oppression, the Company would part with its funds which would jeopardise the security of the creditors of the Company and that if such a direction for reduction of share capital can be, given by the Court behind the back of the creditors, the Creditors would be adversely affected and therefore, it was contended that, even though, while giving direction under section 402 directing the Company to purchase the shares of its members, it is not obligatory upon the Court to give notice to the creditors, such notice ought to be given in the interests of the creditors.
This apprehension is, in our opinion, unfounded.
Even when the Court is moved to confirm the resolution for reduction of share capital under sections 100 to 104,.
the Court may in its discretion dispense with the procedure prescribed in that group of sections [devide section 101(3)].
Undoubtedly, the Court would use the discretion only upon proof of special circumstances as contemplated by section 101(3), but when such discretion is used, the creditors would have no opportunity to object to the reduction.
The opportunity to object would thus depend upon the Court exercising its discretion one way or the other.
It may be noticed that until the Company submits its resolution for reduction of share capital to the Court, the creditors have no say in the matter and, therefore, the Court is empowered to ascertain the wishes of the creditors by following the procedure prescribed in sections 101 to 104.
The object behind prescribed this procedure requiring save in special circumstances as contemplated in section 101,(3), the Court to give notice to the creditors is that the members of the Company may not unilaterally act to the detriment of the creditors behind 'their back.
If such a procedure were not prescribed, the Court might, unaware of all the facts, be persuaded by the members to confirm the resolution and that might cause serious prejudice to the creditors.
But such a situation would not be likely to arise in a petition under sections 397 and 398.
In such a petition the Court would be better in a position to have all the relevant facts and circumstances before it and it would be the Court which would decide whether to direct purchase of shares of the members by the Company.
Before giving such a direction the Court would certainly keep in view all the relevant facts and circumstances, including the interest of the creditors.
Even I the petition is being disposed of on a compromise between the parties, yet the Court, before sanctioning the compromise, would certainly satisfy itself that the direction proposed to be given by it pursuant to the consent terms, would not adversely affect or jeopardise the interest of the creditors.
Therefore, it cannot be said that merely because section 402 does not envisage consent of the creditors before the Court gives direction for reduction of share capital consequent upon purchase of shares of some of the members by the Company, there is no safeguard for the creditors.
But quite apart from that, it is clear on the facts of this case that the apprehension of Mr. De is not well founded.
The order of the Court dated 31st May 1977 clearly provides that the Chartered Accountants and Auditors will determine the value of the shares as on 431 the date of filing of the petition under sections 397 and 398 on the basis of the existing as also contingent and anticipated debts, liabilities claims, demands and receipts of the Company (underlining is ours) and for the purpose of determining the value, they will be at liberty to examine the accounts of the Company for the last five years.
There fore, while ascertaining the break up value of the shares on the date of filing of the petition under sections 397 and 398, the Chartered Accountants and Auditors will have to take into account the assets of the Company as also the existing, contingent and anticipated debts, liabilities, claims, demands, etc.
This would indisputably include the claims made by the interveners in the two suits filed by them to the extent to which they appear genuine and well founded.
They need not, therefore, have the slightest apprehension that their interests are not safeguarded by the direction given by the Court.
It must also be made distinctly clear that the order of the Court does not fix any minimum price at which the shares shall be purchased by the company.
The order makes it clear that if the value of the shares is more than Rs. 65 per share, the Company will have to pay the balance and if it is less than Rs. 65 per share the Gupta Group who have to sell the shares, will have to refund the, difference between the price of the shares calculated at the rate of Rs. 65/ per share and the rate determined by the Chartered Accountants and Auditors within four weeks from the date of such determination.
This pragmatic and flexible approach clearly safeguards the interests of the creditors including the interveners.
There could have been a legitimate apprehension if some minimum price were fixed at which the company was bound to purchase the shares.
Then it could have been plausibly argued that if such minimum price were higher than the real value of the shares, the company would have to part with some of its funds jeopardising the security of the creditors.
Such not being the position, there is no scope for apprehension on behalf of the interveners that the reduction of share capital to be effected under the Court 's direction without reference or notice to creditors would adversely affect their interests.
We may also point out that a right to notice by reason of any rule of natural justice, which a party may establish, must depend for its existence upon proof of an interest which is bound to be injured by not hearing the party claiming to be entitled to a notice and to be heard before an order is passed.
If the duty to give notice and to hear a party is not mandatory, the actual order passed on a matter must be shown to have injuriously affected the interest of the party which was given no notice of the matter.
The facts discussed above by us show that no interest of the interveners, on whose behalf we have heard Mr. De at length, has been injured by not hearing them before the order was passed.
They have not shown us how the order could be different if they had been heard by issuing notices to them under the inherent powers of the Court under rule 9 of the Company (Court) Rules, 1959, even though there was no statutory duty to hear them.
Hence, we hold that the order passed by this Court on 31st May 1977 is not vitiated on such a ground.
432 It was also urged that the Court was in error in making the order without notice to the Central Government.
Section 400 provides.
that the Court shall give notice of every application made to it under sections 397 or 398 to the Central Government and shall take into consideration the representation, if any, made to it by that Government before passing a final order under that section.
It was urged that before this Court made the final order dated 31st May 1977, the record does not show that any notice was given to the Central Government and, therefore, also the order is vitiated.
We see no merit in this contention.
Undoubtedly, when a petition is made to the Court under Ss. 397 and 398 it is obligatory upon the Court to give notice of the peti tion to the Central Government and it would be open to the Central Government to make a representation and if any such representation is made, the Court would have to take it into consideration before passing the final order in the proceeding.
But section 400 does not envisage afresh notice to be issued at the appellate stage.
The present petition under sections 397 and 398 was made to the Calcutta High Court and it was not disputed that before the learned single Judge finally disposed of the petition inter alia directing purchase of shares of the Gupta Group by the Company, notice was issued to the Central Government.
as envisaged by section 400.
The Central Government apparently did not appear and make any representation.
The matter came before this Court initially against the interim order made by the appellate Bench of the Calcutta High Court in the appeal against the order of the learned single Judge, but subsequently special leave was obtained for appealing against the order of the learned single Judge also and it was after this special leave was granted that this Court made the final order.
Therefore, there was no question of issuing fresh notice to the Central Government under section 400 and the contention must be negatived.
Accordingly, we find no merits in the Civil Miscellaneous Petition and it must be rejected.
Before parting with this case we would like to point out that, unfortunately, though Suit Nos.
729/74 and 933/76 have been filed ' by the interveners in the High Court at Bombay as far back as 1974,the written statements in these suits have not been filed though more than 3 years have elapsed.
The decision in the suits may have a bearing on the value of shares to be determined under the directions of this Court dated 31st May 1977.
We, therefore, direct that Suit Nos. 729/74 and 933/76 may be expedited and they may be heard and disposed of without delay at any rate, within a period of six months.

dataset_name: IN-Abs

summary:
In Appeal No. 1347(N) 1977 by special leave against the interlocutory orders dated 21 4 1977 of the Company Judge of the Calcutta High Court in the company petition No. 85/75, filed by the respondents sections 397/398 of the Companies Act, '1956, complaining of oppression by majority and praying for certain reliefs against the appellants and also the orders dated 25 4 1977 of the Division Bench against that order, this Court made an order on 31 5 1977, in terms of an agreement reached between the par ties.
By one such term the company was directed to purchase 1300 shares held by the respondents petitioners.
The price of the shares was to be determined by Messrs. Price Water House and Peet, Chartered Accountants and Auditors, as on the date of the filing of the petition sections 397 398, on the basis of the existing as also contingent and anticipated debts, liabilities, claims, payments and receipts of the ' company.
The Chartered Accountants were to determine the value of the shares after examining accounts and calling for necessary explanations and after giving opportunity to both the groups to be heard in the matter and the determination of the value by the Chartered Accountants was to be final and binding and not open to any challenge by either side on any ground whatsoever.
After such determination of the value the company has to purchase the shares, and, on such purchase, the share capital of the company was to stand reduced protanto.
The order made it ;fear that if the value of the shares is more than Rs. 65/ per share, the company will have to pay the balance, and, if it is less than Rs. 65/ per share, the respondents who have to sell the shares, will have to refund the difference between.
the price of the shares calculated at the rate of Rs. 65/ per share and the rate determined by the Chartered Accountants and Auditors within four weeks from the date of determination.
After the appeal was thus disposed of, the interveners, claiming to be the creditors of the company to the extent of 40 lakhs, in their petition dated 22 8 1977 requested the Court (i) to permit them to be heard and (ii) to postpone the purchase of shares by the company until such time as the company adopts proceedings in a competent court by following the procedure laid down by the , particularly in Sections 100 to 104 for reduction of the share capital.
In the alternative they prayed for safeguarding their interests by modifying the Court 's order dated 31 5 1977.
Rejecting the petition to interfere with its order dated 31 5 1977, the Court, after hearing the interveners, HELD : (i) Section 77 envisages that, on the purchase by a company of its own shares, reduction of its share capital may be effected and sanctioned in either of two different modes : (i) according to the procedure prescribed in Sections 100 to 104; or (ii) under section 402, depending upon the circumstances in which reduction becomes necessary.
[427E F] (ii) Section 77 of the prohibits the company from buying its own shares unless the consequent reduction of capital is effected and sanctioned in pursuance of Sections 100 to 104 or Section 402.
It places an embargo on the company purchasing its own shares so as to become its own member, but the embrago is lifted, if the company reduces its share capital protanto.
[427E] 423 (iii) Section 77 leaves no room for doubt that reduction of share capital may have to be brought about in two different situations by two different modes.
Undoubtedly, where the company has passed a resolution for reduction of its share capital and has submitted it to the Court for confirmation, the procedure prescribed by Sections 100 to 104 will have to be followed, if they are attracted.
On the other hand, where the Court, while disposing of a petition under Ss. 397 and 398, gives a direction to the company to purchase shares of its own members, consequent reduction of the share capital is bound to ensue, and, before making such a direction it is not always necessary to give notice of the consequent reduction of the share capital to the creditors of the company.
No such requirement is laid down by the Act.
The two procedures ultimately bringing about reduction of the share capital are distinct and separate and stand apart from each other; and one or the other may be resorted to according to the situation.
That is the clearest effect of the disjunctive 'or ' in section 77.
[428H, 429AB] (iv) Where the reduction of share capital is necessitated by directions given by the Court in it petition under sections 397 and 398, the procedure prescribed in Sections 100 to 104 is not required to be followed in order to make the direction effective.
[428G] (v) It would not be correct to say that, whenever it becomes necessary to reduce the capital of a company, the reduction can be brought about only by following the procedure prescribed in Ss. 100 to 104.
Sections 100 to 104 specifically prescribe the procedure for reduction of share capital where the Articles of the company permit and the company adopts a special resolution which can only become effective on the Court according sanction to it.
Reduction of share capital may also take pursuant to a direction of the Court requiring the company to purchase the shares of a group of members while granting relief u/s 402.
Both the procedures, by which reduction of capital of a company may be effected, are.
distinct and separate and stand apart from each other.
[427F H] (vi) The scheme of Ss. 397 to 406 is to constitute a code by itself for granting relief to oppressed minority shareholders and for granting appropriate relief, a power of widest amplitude, inter alia, lifting the ban on company purchasing its share under Court 's direction, is conferred on the Court.
When the Court exercises this power by directing a purchase of its shares by the company, it would necessarily involve reduction of the capital of the company.
Such a power of the Court is not subject to a resolution to be adopted by the members of the company which, when passed with, statutory majority, has to be submitted to Court for confirmation.
No canon of construction would permit such an interpretation in which the statutory power of the Court for its exercise depends upon the vote of the members of the company.
[428C E] (vii) If reduction of share capital can only be brought about by resorting to the procedure prescribed in Ss. 100 to 104, it would cause inordinate delay and the very purpose of granting relief against oppression would stand self defeated.
[428E F] (viii) When minority shareholders complain of oppression by majority and seek relief against oppression from the Court under Ss. 397 and 398 and the Court, in a petition of this nature, considers it fair and just to direct the com pany to purchase the shares of the minority shareholders to relieve oppression, if the procedure prescribed by Ss. 100 to 104 is required to be followed, the resolution will have to be first adopted by the members of the company, but that would be well nigh impossible because the very majority against whom relief is sought would be able to veto it at the threshold and the power conferred on the Court would be frustrated.
That could never have been the intention of the Legislature.
[428F H] (ix) The object_behind prescribing this procedure requiring, in special circumstances as contemplated in Section 101(3), the court to give notice to the creditors is that the members of the company may not unilaterally act to the detriment of the creditors behind their back.
If such a procedure were not prescribed, the Court might, unaware of all the facts, be persuaded by the members to confirm the resolution and that might cause, serious prejudice to the creditors.
But such a situation would not be likely to arise in a petition 424 under Ss. 397 and 398.
In such a petition the Court would be in a better position to have all the relevant facts and circumstances before it and it would be the Court which would decide whether to direct purchase of shares of the members by the company.
Before giving such a direction, the Court Would certainly, keep in view all the relevant facts and circumstances, including the interest of the creditors.
Even if the petition is being disposed ' of on a compromise between the parties, yet the Court, before sanctioning the compromise, would certainly satisfy itself that the direction proposed to be given by it pursuant to the consent terms, would not adversely affect or jeopardise the interest of the creditors.
Therefore, it cannot be said that merely because section 402 does not envisage consent of the creditors before the Court gives direction for reduction of share capital consequent upon purchase of shares of some of the members by the company.
there is no safeguard for the creditors.
[430EH] In the instant case, there is no scope for apprehension on behalf of the interveners that the reduction of share capital to be effected under the Court 's direction, without reference or notice to creditors, would adversly affect their interests because : (1) As per the order of the Court dated 31st May, 1977 while ascertaining the break up value of the shares on the date of filing the petition under Sections 397 and 398, the Chartered Accountants and Auditors will have to take into account the assets of the company as also the existing, contingent and anticipated debts, liabilities, claims, and demands etc., as revealed in the accounts of the company for the last five years, which would indisputably include the claims made by the interveners in the two suits filed by them to the extent to which they appear genuine and well founded and.
(ii) the order of the Court did not fix any minimum price at which the shares shall be purchased by the company.
[431A C, D] (x) A right to notice by reason of any rule of natural justice, which a party may establish, must depend for its existence upon proof of an interest which is bound to be injured by not hearing the party claiming to be entitled to a notice and to be heard before an order is passed.
If the duty to give notice and to hear a party is not mandatory, the actual order passed on a matter must be shown to have injuriously affected the interest of the party which was to be given no notice, of the matter.
[431G] In the instant case, after hearing the intervener , it was found that no interest of theirs has been injured by not hearing them before the order was passed.
The order passed by this Court on 31st May, 1977, is not vitiated on the ground of non issue of notices to them under the inherent powers of the Court under Rule 9 of the Company (Court) Rules, 1959, even though there was no statutory duty to hear them.
[431H. 432A] (xi) Undoubtedly, when a petition is made to the Court under Ss. 397 and 398, it is obligatory upon the Court to give notice u/s 400 of the petition to the Central Government and it would be open to the Central Government to make a representation and if any such representation is made, the Court would have to take it into consideration before passing the final order in the proceeding.
But Section 400 does not envisage a fresh notice to be issued at the appellate stage.
[432C D] (The Court directed to expedite the suit Nos.
729/74 and 933/76 filed by the interveners in the Bombay High Court and dispose off within a period of six months).


judgement:
Appeal No. 1984 of 1968.
(Appeal by Special Leave from Judgment and Decree dated 4.12.1967 of the Allahabad High Court in Second Appeal No. 3224 of 1963 ) S.C. Manchanda, M.L. Chitravanshi and M.V. Goswami, for the appellants.
J.P. Goyal, V.C. Prashar and Shreepal Singh, for respond ents.
The Judgment of the Court was delivered by BEG, C. J.
This is the defendant 's appeal by special leave against the judgment and decree of the Allahabad High Court decreeing the suit of the plaintiff respondent for partition and separate possession of 2/3 share of House No. 397 in Katra, Allahabad.
The plaintiff claimed to be the sole heir of the auction purchaser of the house in Octo ber, 1937, at a Court sale in execution of a mortgage de cree.
The house had been mortgaged by Sharda Prasad repre senting the line of one son of Kalyan Chand, the common ancestor and original owner, and Sheo Shankar and Sangam Lal representing the line of another son of Kalyan Chand.
Kripa Shanker, now represented by the two appellants, his widow and son, was said to be a minor, and although, his brothers acted on his behalf, the defendants alleged that the loan and the mortgage were not binding upon him for want of legal necessity.
Shital Prasad, a son of Kalyan Chand, was not a party to the mortgage deed.
Hence, Sital Prasad 's share could not be said to have been sold.
On 12th Septem ber, 1938, symbolical possession was taken by the auction purchaser, and, again in 1946, in proceeding for execution of a decree.
But, the house continued to be in the occupa tion of Kripa Shanker, the husband of the appellant Raj Rani and the father of the appellant Kali Charan.
Devika Rani, widow of Shital prasad, who had filed a suit in 1937 for the declaration of her rights to 1/3 of the house, after her objections under Order XXI, Rule 100 of the Code of Civil Procedure had been dismissed, and obtained a decree from the appellate Court on 22nd 20 January, 1941, with the result that Shital Prasad 's 1/3 share went out, had not been impleaded in the suit now before us.
In 1945, the respondent auction purchaser (now represented by son, Respondent No. 1 ) had filed a suit against Kripa Shanker and another for a declaration of his rights in respect of 2/3 share in another house and the ejectment of Kripa Shanker and Prayag Das from that house.
Although that suit was in respect of another house, the defendants alleged that, in that suit, the auction purchaser had said that the house in dispute in the case now before us was also in possession of Kripa Shanker as a trespasser.
Kripaa Shanker died in 1953 leaving the appellants in pos session as his heirs.
The suit now before us was filed on 10th August, 1959.
It was alleged there that, although the auction purchaser had obtained possession of the whole house, yet, Smt.
Devika Rani, the widow of Shital Prasad having continued in possession over 1/3 share, her claim to that portion had been accepted so that it was no longer in dispute.
But, it was alleged that the auction purchaser has been in posses sion over 2/3 part of the house together with Devika Rani who had 1/3 share in the house.
It was also alleged that, after the death of Devika Rani, one Sankata Prasad, defend ant No. 3, had started giving himself out as the owner of 1/3 share, on the basis of a giftdeed of 1953 ' in his fa vour, and that defendant No. 1, Raj Rani, had been giving out that Sankata Prasad had executed a sale deed in favour of Kripa Shanker, defendant No. 2.
In para 8 of the plant, however, it is alleged: "The defendants had no concern with the 2/3 share in the said house themselves or through any other person nor were they ever in possession or in occupa tion of any part of above owners".
It is also alleged in the plaint that the plaintiff auction purchaser 's son had been, and, before him the auction purchaser had been in possession of the house.
Furthermore it is alleged that "Raj Rani had, in collusion with Sankata Prasad, defendant No. 3, Obtained a false sale deed in favour of defendant No. 2 in respect of the 1/3 share of the said house and misled some tenants in the said house and illegally prevented them from paying to the plaintiff his share in the rent".
The plaintiff, therefore, claimed to be entitled to recover the rents also of amounts wrongly realised by the defendants 1 and 2, the appellants before us.
In paragraph 10 of the plaint, it Was stated that the defendants did not pay any taxes to the Municipal Board which had to file suit for their recovery which were decreed.
The plaintiff, howev er, alleged that he had paid up the decretal amounts in excess of the 2/3 share which belonged to the plaintiff.
The plaintiff also alleged that he was being obstructed in looking after the house and realising rents.
Hence, accord ing to the plaintiff, he had to serve a notice dated 23rd April, 1959, asking the defendants to partition the proper ty.
The plaintiff alleged that the cause of action "accrued to the plaintiff firstly in 1956 and after that on the end of each month when the defendants illegally received plain tiff 's share in the rent from the tenants and did not pay to the plaintiff and then on 15 11 58.
When the plaintiff has to pay excess amount to the Municipal Board on account of the defendants and the on 23 4 59 and, lastly, in May, 1959, when the defendants refused to partition the plaintiff 's share in the said house, within the juris diction of this Court and this Court has the jurisdiction to try this suit".
The defendants appellants had denied any concern with the mortgage.
Apparently, their case was that as the husband of Raj Rani, appellant No. 1 and the father of Kali Charan, appellant No. 2, was a minor at the time of the alleged mortgage and his brother, not having borrowed the money for any legal, necessary, could not bind Kripa.
Shan ker or his heirs.
Furthermore, the defendants pleaded that, even if the house ' had been sold in execution of the mort gage decree, the defendants appellants "have been openly denying the rights of the plaintiff and had been ' in adverse possession and occupation of the property for more than 12 years so that even if the plaintiff or his predecessors had any right, it had been extinguished by the operation of law of limitation".
The first question, on pleadings set out above, for the trial.
Court to determine was: has the plaintiff come with a plea of dispossession by the defendants so that Article 142 of the old Limitation Act was applicable to.
The case, or, had the defendants, having set up the plea of adverse pos session, to establish an ouster in order to discharge their burden of proof under Article 144 of the Limitation Act ? In view of section 3 of the old Limitation Act, it was incumbent on the Court to determine whether the Suit was filed within time, even if the plea of limitation had not been taken, when the question had been raised.
Section 3 (1) provided: "3 (1).
Subject to the provision contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence." The correct procedure for the Court to adopt was not only to frame an issue on the question of limitation but to determine whether it was governed by Article 142 or by Article 144 of the Limitation Act.
The trial Court did frame an issue indicating that Article 142 was applicable.
This was issue No. 2 framed as follows: "Whether the suit is within limitation"? The trial Court observed: "It is also.
true that if the suit of the plaintiff is not established to be within limitation, that is to say that, if the possession of the plain tiff is not even within 12 years, the suit must fail as the rights of the plaintiffs would be deemed to have been extinguished by the adverse possession of defendants 1 and 2, or their Predecessor in interest, namely, Kripa Shankar".
All this shows that the trial 'Court was applying Article 142 of the old Limitation Act.
We do not, however, find any finding given by the trial Court on ' the question whether, and, if so when and how, the plaintiff was in actual or constructive pos session of any part of the house.
If Article 142 applied, it meant that the plaintiff had admitted dispossession.
If this was the case, the following finding by the trial Court on the trial of the plaintiff seems to us to be premature: 22 "Now it will be noted that there has not been any partition between the plaintiff on the one hand and the other one third share holder Smt.
Deoka or her successor in interest on the other hand.
Deoka was admittedly a relation of Kripa Shanker and there is nothing unusual if Smt.
Deoka had allowed Kripa Shanker to continue to live in the suit premises under the protection of her 1/3 share.
The consistent Municipal receipts, the litigation with tenants, and over all the title deeds of the plaintiff; they all go to lend support to the plaintiff 's case".
In the first appeal against that judgment, it was again not decided anywhere what Article of the Limitation Act applied to the case.
It appears to us that the appellate Court had also not come to the grips with the real question to be determined.
It said: "It was alleged that Kripa Shanker had taken possession over the house.
The learned counsel for the appellant argued that these documents showed that Kripa Shanker was in possession over the entire house and that Bhagwan Das never obtained actual possession over it and only symbolical possession was delivered to him in this suit, It must be borne in mind that Bhagwan Das was owner to only 2/3rd share and 1/3rd belonged to Mst.
Deoki, who was real aunt of Kripa Shanker, and unless Bhagwan Das had got his share parti tioned, he could not obtain actual possession over any portion of the house and as such only symbolical possession was delivered to him.
The question only is whether he remained in joint possession or not ? It is contended from the side of the appellants that he was not in possession and Kripa Shanker was in adverse possession at least from 1945, and that this suit was filed in 1959, that is after more than 12 years when the defendant appellants had already perfected their title by adverse possession.
This symbolical possession was delivered on 21st of November, 1946.
This suit was filed in 1959 that is more than 12 years after and, therefore, there is force in the contention that it must be proved that Bhagwan Das was in joint possession.
Bhag wan Das was a co sharer along with Mst.
Deoki.
Deoki 's share ultimately came to the defendant appellant in 1957 and as such in 1957 the defendant appellant became co sharer with the plaintiff respondent.
In 1957, 12 years had not passed and even if it is assumed that Bhagwan Das or the plaintiff respondent was not in joint possession, their right had not ceased in 1957.
It was observed by the Supreme Court of India in the case P. Laxmi Reddy vs L. Laxmi Reddy (in 1957 A.I.R. Supreme Court 314), 'the burden of making out ouster is on the person claiming to displace the lawful title Of co heir by his adverse possession '.
" If the plaintiff 's assertion was that the defendants had dispossessed him it did not matter whether the defendants represented a 23 co sharer or not.
In that event, the plaintiff 's case would certainly be deemed to be one in which the assertion of dispossession was there.
In the case before us, it appears that the rights of Kripa Shanker, on the plaintiff 's asser tion that he had been a party to the mortgage, had come to an end by the sale of his rights in the property and deliv ery of possession to the auction purchaser.
His heirs could only be in adverse possession and not holding through Kripa Shanker on the plaintiff 's own assertions.
In fact, they have not claimed to be holding through Kripa Shanker.
In any event, the allegations in the plaint appear to us to amount to an allegation that, by asserting their own owner ship and inducing the tenants not to pay rents to the plain tiff, the defendants had dispossessed the plaintiff.
In such a case, even if a defendant in actual possession could be deemed to be initially a co sharer, the plaintiff would be really asserting that the co sharer had dispossessed or ousted him.
Hence an ouster having been admitted in the plaint, the burden would lie 'upon the plaintiff of proving his Case that the ouster had taken place within twelve years.
On any other view, the distinction between articles 142 and 144 of the former Limitation Act, which is important in this case, would vanish.
In a case between co sharers, Bindhyachal Chand & Ors.
vs Ram Gharib Chand & Ors,(1) a "Full Bench of the Allahabad High Court had examined the difficulties which arise when a co sharer sues another on the allegation that he had been dispossessed.
Sulaiman, C.J., pointed out that article 144 was a residuary article Which applied to suits for posses sion of immovable property which could not fall elsewhere.
As regards the distinction between articles 142 and 144, he observed (at p. 997): "No doubt in many cases the distinction is very fine,and the line of demarcation be tween dispossession and adverse possession is thin.
But, the question in each case is one of burden of proof, and it is incumbent on the plaintiff, when he admits his disposses sion, to establish his possession within twelve years".
He went on to point out (at p. 998): "Ordinarily, the possession of one co owner, who is entitled to joint possession of the whole property, is refer able to his title, and he cannot ask the Court to presumethat his possession was illegal or adverse to the other co owner.
It follows that if one co owner is in actual possession of the joint property, and the other co owner is either absent or is not in actual possession, the latter would still be in constructive possession of his property through his co owner.
There would be prima facie no case, where the possession of one co owner was illegal and was necessarily adverse to that of the other co owner.
The presumption would be that they are both in joint possession.
But, it cannot be denied that one co owner can dispossess another (1)A.I.R.1934 All.
3 240SCI/77 24 co owner and can exercise adverse possession over a joint property.
If, therefore, the plaintiff, a co owner, admitsthat he has been dispossessed and that, at any rate, for a short period prior to the suit, the possession of his co owner was adverse to him, then he cannot fall back on a mere presumption of joint possession in his favour and succeed without showing any other circumstances whatsoever".
The following observations of the learned Chief Justice are also useful (at p. 998): "Personally speaking, I do not think that the plaintiff can by cleverly drafting his plaint evade the burden of proof which article 142 casts upon one who is suing for pos session on the ground of dispossession.
When a plaintiff falsely alleges that he is in possession and wants a relief, to which the owner in possession is entitled, e.g., for partition, injunction, joint possession, etc., and it is found that he was in fact not in possession but had been dispossessed, techni cally speaking, the suit would fail under section 42, Specific Relief Act and would be dismissed on the ground that he had omitted to ask for a consequential relief and had failed to prove his case.
But, a Court may allow him to change his ground and give him a decree for possession, treating his claim as one for recovery of possession on the basis of dispos session, provided he succeeds in showing that his dispossession took place within 12 years".
It seems to us that, in the case now before us, the High Court, on a second appeal to it, also failed to determine the crucial question of actual or even constructive pos session of the plaintiff within twelve years.
It said: "The argument advanced before me is that after the decree in suit No. 57 of 1945 the possession of Kripa Shanker became adverse and, as the suit for partition was not fried with 12 years of the date of the decree, the suit was barred by limitation.
A large number of authorities were cited before me on the point.
It was urged that if a member of an undivided Hindu family sells his undivided share and the alience does not bring a suit for partition and possession over his share within 12 years of the date of the alienation the possession of the alienor and all the other coparceners would be adverse and the suit for partition after the expiry of 12 years from the date of the alienation would be barred by time.
Some of the authorities cited by the learned counsel for the appellant, to which I do not consider it necessary to refer, would seem to support his contention.
Learned counsel for the respondent, however, has cited before me the latest case of the Supreme Court in Manikayala Rao vs Narashnhaswami (AIR The case relied upon by the High Court is distinguishable on two grounds: firstly, it was not a case where the plaintiff, on the pleadings in the plaint could be fairly said to have admitted dispossession 25 or ouster by setting up that the alleged co sharer in possession was denying the rights of the plaintiff; and, secondly, delivery of symbolical possession there was said to have interrupted adverse possession which could, there fore, not be continuously for twelve years.
In the case before us, even if a symbolic delivery of possession to a co sharer could be said to have interrupted any adverse possession, that interruption took place beyond 12 years.
Hence, it was the duty of the plaintiff to have shown by cogent evidence how, by receipt of rent or an admission by the defendants or otherwise, he or his predecessorin interest could be deemed to be in actual or constructive possession as an owner or as a co sharer with the defendants over the house in dispute.
We may observe that the difficulty in deciding the question whether article 142 or article 144, Limitation Act applies to a case which really depends upon an interpreta tion of the pleadings, was sought to be removed in the Limitation Act of 1963 by a more clarified position in article 64 and 65 of Limitation Act of 1963.
The reasons given for this change were: "Article 142 and 144 of the existing Act have given rise to a good deal of confusion with respect to suits for possession by owners of property.
Article 64 as proposed replaces article 142, but is restricted to suit based on possessory title so that an owner of property does not lose his right to the property unless the defendant in possession is able to prove adverse possession".
In other words, in cases governed by the former Limitation Act, at any rate, a plaintiff admitting dispossession, in suits based on title, had to prove that he was in actual or constructive possession within twelve years.
Hence, the change in law.
We do not, however, propose to examine or lay down here the exact position under the amended law of limitation under the act of 1963.
The result is that, in the case before us, the plaintiff had to, prove that he was he actual or constructive posses sion within twelve years.
It would be enough if he estab lishes that he was in constructive possession within twelve years by receipt of rent or otherwise.
There is no finding to that effect given by the High Court or by the Subordinate Court.
We, therefore, allow this appeal, set aside the judg ments and orders of the High Court and of the first appel late Court.
We send the case back to the first appellate Court, which is the final Court of facts, to determine, on the evidence already on record, whether the plaintiff was in actual or constructive possession within twelve years of the filing of the suit.
If the plaintiff can establish that, the suit will have to be decreed.
Otherwise, the suit must fail.
The costs will abide the results.
S.R. Appeal allowed and case remanded.

summary:
The suit property of one Kalyan Chand in the joint possession of Shital Prasad (son 1/3), Bansidar (great grandson 1/3) and Sheo Shankar Sangamlal and Kripa Shankar (1/9+1/9+1/9 grandsons) was mortgaged by Sheo Shanker, Sangamlal and Bansidhar acting on their own behalf and allegedly on behalf of Kripa Shankar (who was a minor then).
Shital Prasad was not a party to the mortgage.
When the whole house was sold in Court auction on 3 10 1937, in realisation of the mortgage money decreed, one Bhagwandas father of Kailash Chand (Respondent No. 1) purchased the said house and took symbolical possession on 12.9.1938. 'The residential portion of the house was in occupation of Kripa Shankar (Appellant 's husband) and Devika Rani w/o Shital Prasad who established her right to 1/3 share by a decree obtained on 22 1 1941.
Another suit filed by Bhag wandas for a declaration and possession over 2/3 share for ejecting Kripa Shankar was decreed on 27 8 1945, and, again symbolical possession was obtained on 21 11 46 under O.21 r.96 C.P.C. Kripa Shankar died in 1953 leaving behind the appellants Raj Rani (wife) and Kali Charan (son).
Respond ent No. 1 son of the auction purchaser Bhagwan Das filed a suit No. 475/1959 on or about 10 8 1959 for partition and possession over 2/3 share of the portion in addition 'to certain claims of rents illegally collected and the amount of tax unpaid by the appellants.
The plaint allegations were: (i) The auction purchaser has been in possession over 2/3 part of the house with Devika Rani who had 1/3 share in the house; (ii) The defendants had no concern with 2/3 share in the said 'house themselves or through any other person were not in possession or in occupation of any part of the above said house at any time as owners; (iii) The plaintiff was being obstructed in looking after the house and realis ing rents and that the defendant had misled some tenants and realised the rents due to him.
The appellant defendants took the plea (i) the mortgage was not valid as the amount was not borrowed for legal necessity; (ii) Even if the house "had been sold in execution of the mortgage, they have been openly denying the rights of the plaintiff and had been in adverse possession and occupation of the property for more than 12 years so that, even if the plaintiff or his prede cessors had any right, it had been extinguished by the operation of law limitation.
The Trial Court decreed the suit and the first appellate court confirmed it.
The second appeal filed in the High Court was also dismissed.
Allowing the appeal by special leave, the Court, HELD: (1) The High Court in a second appeal and the Subordi nate courts failed to determine the crucial question of actual or even constructive possession of the plaintiff within twelve years and give a finding to that effect.
[24E] (2) The plaintiff had to Drove that he was in actual or constructive possession within twelve years.
It would be enough if he establishes that he was in constructive posses sion within twelve years by receipts of rent or otherwise.
[25F] (3) A decision on the question whether article 142 Limita tion Act applies to a case, really depends upon an interpre tation of the pleadings.
In cases governed by the former Limitation Act, at any rate, a plaintiff admitting dispos session in suits based on title, had to Drove that he was in actual or constructive possession within twelve years.
[25C E] 19 (4) The allegations in the plaint amount to an allega tion that by asserting their ownership and inducing the tenants not to pay rents to the plaintiffs, the defendants had dispossessed the plaintiff.
In such a case, even if a defendant in actual possession could be deemed to be ini tially a co sharer, the plaintiff would be really asserting that the co sharer had dispossessed or ousted him.
Hence an ouster having been admitted in the plaint the burden would lie upon the plaintiff of proving his case that the ouster had taken place within twelve years as article 142 of the old Limitation Act applied to such a case.
In the instant case, even if the symbolic delivery of possession to a co sharer could be said to have interrupted any adverse possession, that interruption took place beyond twelve years [23B C] Bindhyachal.
Chand & Ors.
vs Ram Gharib Chand & Ors.
AIR [1934] All.
referred to.
Manikyala Rao vs Narasimhaswami ; , distin guished.
Appeal allowed and case remanded to first Appellate court to determine whether plaintiff was in possession within the period of limitation.