JUDGMENT 1. THIS is an appeal from a judgment and order dated 23rd June, 1993. 2. THE entire text of that is set out in an order passed at the interlocutory stage of this appeal on an application made by Mr. Promothownath Chatterjee's clients for addition of his clients as parties. Some facts relating to the company and its shareholders and directors are also set out there. It is mentioned there, and we also mention it here, because it is a fact of very great importance, that although it is recorded in the books of this Court on 23.6.93 that there is a judgment apart from the order that is available, yet in fact no such judgment is available. 3. NO such judgment to repeat is available. 4. IT is recorded in the order "court delivers written judgment". We know of the Court delivering judgment and also of handing over of the written judgment to the Court Officer but we are not aware of delivering written judgment being recorded in an order. It is also stated in the order " (for details see the original judgment)". The meaning of the phrase original judgment is, mildly speaking, a little unclear. Since there is no judgment original or otherwise arid there are no details available from anywhere, the order appealed from is a reasonless order although- it purports wrongly to be a reasoned one, by giving reference to a non existent judgment. 5. MR. Mukherji, appearing for Gouri Basu, one of the respondents supporting the appeal, submitted that this is an appalling state of affairs. After hearing whatever could be said in this regard on behalf of the other parties, we have no hesitation in our mind that is an absolutely accurate statement in the facts and circumstances of this case. 6. THE matter is so bad that hardly anybody can raise any point against the setting aside of the order under appeal. This course appears to be irresistible even apart from the facts of this case, on the sole and simple basis of falsification of the court records. The then Acting Chief Justice retired on 23.6.93 after the erroneous insertions were made in the court records from which copy orders hare been issued to the parties. This course appears to be irresistible even apart from the facts of this case, on the sole and simple basis of falsification of the court records. The then Acting Chief Justice retired on 23.6.93 after the erroneous insertions were made in the court records from which copy orders hare been issued to the parties. This being an application complaining against oppression in regard to the company management and shareholding, simply setting aside the order, however bad or insupportable might it be, would not further the cause of justice. The court was faced with the problem of what should be the solution on the original Section 397/398 application. The petitioners who are the appellants submitted that they have been litigating with this matter in this court for nearly 10 years. If at the end of this long period they are merely faced with a remand order, then their time, energy and money will have been spent for nothing. It would be a premium, according to them, put upon the persons who are in wrongful control and management of the company. 7. LET us now come to the facts and materials. Amongst the petitioners there are the Roys, the Roy owned companies and Madhujit Basu. The roys and the Roy owned Companies owned about 25% of the share capital of the Dooars Assam Company, hereafter simply referred to as the company. The corporate shareholding is much the more important amongst the Roys, it being about 24% 8. MADHUJIT Basu is the son of Sachindra Nath Basu and Gouri Basu. They are both in the category of respondents. However, there is absolutely no difference of interest or attitude as amongst father, mother and son. In fact, Mr. Sen appearing for Samairendra Nath Basu made comments about the obliquity of motive which, according to him, was made manifest by similarly interested parties being distributed both amongst the petitioners and the respondents. 12-45/1-00 The third group of shareholders apart from the Roys and Gouri basu' s group are the group of Samarendra Nath Basu. Samarendra Nath basu and Sachindra Nath Basu are uterine brothers. They were Managing directors of the Company until 1988 when Sachindra Nath Basu had to give up that position because of his advanced age. 9. AFTER him his wife Gouri Basu joined as Managing Director with samarendra Nath Basu. 10. Samarendra Nath basu and Sachindra Nath Basu are uterine brothers. They were Managing directors of the Company until 1988 when Sachindra Nath Basu had to give up that position because of his advanced age. 9. AFTER him his wife Gouri Basu joined as Managing Director with samarendra Nath Basu. 10. SAMARENDRA Nath Basu's wife is Juthika Basu and their son is Partha pratim Basu. The shareholding of Sachindra or Gouri Basu's group, as such i.e. the shareholding of Samarendra and Samarendra's immediate family group, as such, is not much in either case. Although Samarendra Nath basu is alleged to be in sole control and management of company in effect, his personal shareholding is hardly a little more than 1% of the issued and paid up share capital of the company. 11. SACHINDRA's group and Samarendra's group would be having each about 5% of the shareholding, not taking into consideration here, about 10% of the shares which Madhujit claims to have acquired; apart from this, roughly 5% is the undisputed group shareholding. 12. THE other shareholders are scattered and not so prominent. The custodian of Enemy Property has about 6% shareholding. The parties who wish to be added have less than 1% shareholding; but the above 10% shareholding of Madhujit, which would till balance of power this way or the other needs some special mention. As against this 10% shareholding of Madhujit, which is sun not wholly and finally beyond all dispute whatsoever, one must also bear in mind another 10% shareholding of one Brojeswar, which because of the until now firm allegiance of Brojeswar to Samarendra, remained on the side of Samarendra Nath Basu. 2.00/2.45 21.9.1998 13. THE additional 10% shares of Madhujit Basu, which is somewhat of a key factor was allegedly acquired by him from one Brojen Das. That brojen Das once possessed this share block is undisputed. He is now dead. However, a will of Brojen Das has been got probated where under his property and effects have been left to Partha Pratim Basu. Thus the two sons are contenders to the ownership of the shares of Brojen Das in two different ways. 14. THE company at its board meeting of 29.7.89 allegedly refused to register Brojen Das's shares in the name of Madhujit, this version as to refusal is the subject of a serious challenge in this proceeding. Thus the two sons are contenders to the ownership of the shares of Brojen Das in two different ways. 14. THE company at its board meeting of 29.7.89 allegedly refused to register Brojen Das's shares in the name of Madhujit, this version as to refusal is the subject of a serious challenge in this proceeding. Be that as it may, for the present it is more important for us to note, that Madhujit went before the Company Law Board to have an order compelling registration of Brojen's shares in his name when he did not get the registration in the usual course. In relation to those proceedings, inspection was obtained by or on behalf of the petitioners and there and at that time, the details' of the recorded minutes of the board meetings of 29. 4. 89 and 29.7.89 become clear. It was known then that apparently the Board had refused registration. 15. THE 397, 398 petition was present sometime in April 1998. In the proceeding before the Company Law Board, Madhujit was ultimately successful in getting an order. That order directed registration (in effect) but that order also recorded that in regard to the shares of Brojen Das neither could any consideration be shown to have been paid by Brojen das when he first acquired that important chunk of shares, nor could any consideration be shown by Madhujit to have been paid to Brojen when he got the shares from Brojen. But the order of the Company Law board went in favour of Madhujit. 16. BROJEN, then alive, instituted a writ petition in this High Court as against the order of the Company Law Board. The writ application is still pending. The appeal court was approached in the writ matter at the interlocutory stage. It appears that without much contest it was ordered by the Appeal Court that no general meeting of the company would be held until disposal of the writ matter. Presumably the reason is (it is not made clear on the face of the order) that if the voting powers on the 10% shares of Brojen are not exactly known, the general meeting of the company might not produce the true result as would be indicated by the true ownership of this share holding. Presumably the reason is (it is not made clear on the face of the order) that if the voting powers on the 10% shares of Brojen are not exactly known, the general meeting of the company might not produce the true result as would be indicated by the true ownership of this share holding. However, this drastic order, passed in a writ, altogether stopping the holding of the general meetings of the company (and a drastic order it is - let us repeat) was nearly two years old when the impugned order was passed on 23. 6. 93. 17. THERE are several remarkable points about the order appealed from and let us note those here serially : 1. The judgment is stated to be delivered but it is nowhere to be found and the records of the court are falsified to that effect; 2. Samarendra Nath Basu is directed to remain a Managing Director until the next AGM of the company (which has since never been held because of the order in the writ matter); 3. The Roys are directed to disinvest in favour of Samarendra Nath basu and Gouri Basu (grouping them as the Basu family)although there is a tussle between these two groups of the Basus; 4. J. Thomas and Co. is clearly directed to continue as the Tea broking House of the company; 5. Although Samarendra Nath Basu's Managing directorship and j. Thomas's Tea Brokership were clearly spelt out, the order did not mention who should be the valuer of the shares of the Roys; the only indication is that it would be a court Dvaluer. 18. THE impugned order entrenched the sole reign of Samarendra Nath basu, he was the Managing Director for ever. J. Thomas was the tea broking house and the previous brokers Figgis were thrown out permanently by the impugned order. The Roys being the 25% shareholders were asked to disinvest in favour of the Basus without assigning a single reason why they should be compelled to sell against their wishes. Not a single reason was given why the impugned board minutes of April and July 1989 should not be struck out; not a single reason was given why, in case those board minutes could not be sustained. The roys should nonetheless disinvest. 19. MR. Not a single reason was given why the impugned board minutes of April and July 1989 should not be struck out; not a single reason was given why, in case those board minutes could not be sustained. The roys should nonetheless disinvest. 19. MR. Sanjib Banerjee appearing for all the appellants who were the petitioners in the court below made several submissions on facts and cited several authorities. Some of these are as follows - 20. HE submitted that the board minutes of 29. 4. 89 must be cancelled and struck out because there was no meeting on that day and no directors were present at meeting. No notice of the board meeting was even attempted to be produced by the respondents. At that meeting the Garden manager Mr. Mrinal Kanti Basu was sought to be removed. No resolution could be effective if even one director had been left unserved with the notice of the meeting. As regards the meeting of 29. 7. 69, Mr. Banerjee's charge was even more serious. He said that the meeting was held but the version as recorded in the minute book (which we have directed to be kept in custody of our officer) is absolutely false. On the recorded version, three matters appeared (in the principal) which are the subject matter of the dispute, challenge and attack : 1. Samarendra Nath Basu was the chairman; 2. Three persons namely Brojeswar, Apurba and Gautam were co-opted as Directors; they are all alleged to be Samarendra Nath basu's henchmen. Goutam, specifically, was said to be the nephew of the son-in-law of Samarendra Nath Basu, Dr. Diptendu hazra husband of Ishita, Samarendra's daughter. 3. The shares and transfer documents lodged by Madhujit in regard to Brojen's shares did not produce the expected result of the company and its board agreeing to register those, but those were returned to Gouri Basu with a direction to lodge those with the principal officer of the company, and those were not to be brought before the Board directly. 21. MR. Banerjee said that if the eight Directors as on 29.7.89 were present at the meeting (which they were) and they were voting in accordance with their interest and loyalties, these things would not have happened at all. 21. MR. Banerjee said that if the eight Directors as on 29.7.89 were present at the meeting (which they were) and they were voting in accordance with their interest and loyalties, these things would not have happened at all. The directoral board as on that day consisted of two roy Directors and three each from the groups of Sachindra Nath Basu and Samarendra Nath Basu. The Roys and Sachindra's group would not have committed suicide by allowing co-option of three more Directors allowing the directoral board to become majority in favour of Samarendra nath Basu. In this regard Mr. Banerjee placed reliance on the case of sindhri Iron Foundry reported at AIR 1966 Calcutta 512. The Division bench judgment contains an illuminating paragraph found often to be helpful in 397, 398 proceedings. Wherein the court proceeded on the basis that the challenged minutes could not be acceptable, as, if those were the true minutes, then the group becoming a minority thereby would have to be assumed to have committed harakirit at that meeting. The appeal court proceeded on the basis that nobody in his senses commits harakiri without reason. The principle if as applicable to every day life as to facts and materials in 397, 398 matter. We respectfully abide by this wise, practical and common sense line of reasoning. 22. REGARDING the Chairmanship of Samarendra Nath Basu, Mr. Banerjee said that a bank of the company an admitted one, had forwarded a copy of the first part of the 4th resolution of those minutes along with the description of the persons present at the board and such description described clearly D. P. Roy as the Director in the Chair. The copies are annexed to the main petition. In answer thereto, pursuant to a subpoena, Mr. Samarendra Nath basu group appears to have produced a photocopy of the bank's communication in regard to the identical resolution and that document produced under subpoena showed Samarendra Nath Basu to be in the chair. The discrepancy is that, the documents produced by the petitioners showed that Samarendra Nath Basu was not in the Chair. It was necessary to show himself in the chair as the Chairman he is to sign the Board minutes. We have noticed from the original Minute Book that Samarendra nath Basu has himself signed the board minutes in black ink, the rest being drawn up in blue ink. It was necessary to show himself in the chair as the Chairman he is to sign the Board minutes. We have noticed from the original Minute Book that Samarendra nath Basu has himself signed the board minutes in black ink, the rest being drawn up in blue ink. 2-45/3-15 23. REGARDING the lodgement of shares by Madhujit, Mr. Banerjee submitted that it would be quite in order to assume, that if the matter came to a vote Gouri Basu and Sachindra Nath Basu would not be able to vote on this issue because registration of a tilting chunk of shares in favour of their son was in issue. Even then the split of the directorial board would be 3 to 3. If it were 3 to 3 no positive resolution could be passed refusing registration. 24. DURING arguments it appeared to us that if D. P. Roy were in the chair he could have passed the resolution of registration by his casting vote according to the Articles of the company; similarly if Samarendra nath Basu were in the Chief he could have defeated the registration. But the casting vote of the Chairman is nowhere mentioned either in the pleadings or in the minutes themselves. The other interesting part is the return of the shares and the transfer documents to Mrs. Gouri Basu. When criminal proceedings were instituted for unauthorised withholding of these by the company, the answer was that since these were returned to Mrs. Basu and relodged by her with the Principal Officer, as directed in the resolution, there was no unauthorised withholding. It appears to us that the harakiri principle applies in this matter also; it is unbelievable that the shares and the transfer documents will be returned to the Managing Director Mrs. Gouri basu, she will docilely take all those away, accepting quietly the refusal by the Board to register the shares, and finally relodged those with the principal Officer of the company later on. 25. APART from challenging the two resolutions, Mr. Banerjee pointed out the acquirement of several shares in the group of Samarendra Nath basu after July, 1989. A chart was handed up to show the slight differences in acquirement as per details given in different pleadings. There are several charts of numerous alleged sellers available in the papers before us where the request of addresses are given. Banerjee pointed out the acquirement of several shares in the group of Samarendra Nath basu after July, 1989. A chart was handed up to show the slight differences in acquirement as per details given in different pleadings. There are several charts of numerous alleged sellers available in the papers before us where the request of addresses are given. Only a district and a State are mentioned, excepting may be in one or two cases; it would be impossible to locate a person from such a general and a broad geographical description. It appears that in the name of four persons and Partha Pratim bose some half a lakh rupees worth shares were allegedly purchased and registered. 26. THE share transfer committee as from the end of 1989 composed juthika Bose, Samarendra's wife and Arabinda Bose also in the group of Samarendra. There was no difficulty in regard to these registrations. Mr. Banerjee submitted that these registrations are suspect and even some dead shareholders appear to have sold their shares to Samarendra Basu's supporters. Mr. Mukherjee appearing for Gouri Basu openly supported the appellants. He said that he was entitled to do so. He also challenged the two Board minutes. He referred us to several authorities. He submitted that if there has been a justifiable loss of confidence in the management of the company, then that is good enough for even a just and equitable winding up and therefore, also for obtaining orders under Section 397 of the Companies Act. In particular, in the bunch of photocopied authorities handed up by Mr. Mukherjee there is a case of Loch v. Blackwood reported at 1924 Appeal Cases 783 alternatively at 1924 A. E. R (Rep.) 200. 27. THAT was an appeal to the Crown (Privy Council) from Barbados. In the advisory opinion of the Council it was pointed out, allowing winding up, that the company in question had prospered and the business owed much of its value and prosperity to one Mr. Mclaren. But this Mclaren appears to have harboured a feeling that he could manage the business as if it were his own. Trifling and fragmentary sums were paid to Mrs. Loch, a complainant. The complainant family had stopped getting dividends altogether. They completely lost confidence in Mclaren. Mclaren. But this Mclaren appears to have harboured a feeling that he could manage the business as if it were his own. Trifling and fragmentary sums were paid to Mrs. Loch, a complainant. The complainant family had stopped getting dividends altogether. They completely lost confidence in Mclaren. The council in the opinion stated : "the broad ground is that confidence in its management was, and is, and that most justifiably at an end". Mr. Mukherjee submitted that in the farts and circumstances of this case the confidence in Samarendra Nath Basu is similarly, and similarly justifiably at an end, so far as all are concerned excepting he himself and those in his own group. 28. MR. Mukherjee also gave us the case of Cosmosteels reported at 48 co. Cases 372, a Supreme Court decision. He showed us from this case that the company court has wide powers in passing rectifying orders under 397 and 398. This part of the Companies Act is a complete case. The court can order even to the effect which would contrary to the Act itself if such matters were, attempted to be dome by the members of the company themselves without intervention of court. As for example, it is possible for the court to order the company to buy its own shares but that would be impossible in the ordinary course of things. Mr. Mukherjee gave us several other authorities. Mr. Chatterjee appearing for the small group of shareholder who wanted to be added as parties also supported the appellants. He said that his clients were not new shareholders like Pijush Kami Hati in whose name shares were obtained by Samarendra Nath Basu after July 1989. He said that dividends his clients have not received in the past for long, and if Samarendra continues in the throne they have no hopes of receiving those in future either. He submitted that this matter tried out gravely for dispensation of justice. He submitted that faked resolutions should not be allowed to stand and no party should be allowed to benefit on the basis of the continued effect of faked resolutions, which might be one or two in number but continue permanently in their effect, on the company, the Directors and the shareholders. On behalf of the other respondents submissions were made by Mr. On behalf of the other respondents submissions were made by Mr. Sen on behalf of Samarendra nath Basu and Mr Nag on behalf of the company. Much lengthier part of the arguments on behalf of the respondents was made by Mr. Sen. He submitted that Section 398 of the Companies Act has no role to play here because mismanagement is neither alleged nor allegable. He said that, that it is not alleged with any reasonable particulars, will be seen from a bare reading of the petition and that it is not allegable, is seen from the stark fact that the company has prospered. The company has prospered from 1993 even after the impugned order was passed. There is no winding up application pending against the company. There is no suit pending against the company. There are no statutory out standings of the company of which the court has received any complaint. The interlocutory order of the Appeal Court passed on 1. 9. 97 itself mentions about the prosperity of the company from which finding there has been no attempt at further appeal. 29. REGARDING the challenged minutes, Mr. Sen took those up one by one. As to the meeting of 29. 4. 89 his submission was that the case of non-attendance of directors is falsified by the differing stand of one Raut, who is admittedly in the group of Sachindra. At first Raut's stand was that there was no notice and no meeting. Then a receipt was produced whereby it appeared that Raut had accepted Rs. 250/- as directorial fees for the meting of 29. 4. 89. Then Raut changed his stand and told that the walked into the registered office at B. B. D. Bag on 29. 4. 89, took the fees, signed the receipt there, then was told by Samarendra Nath Basu that nothing was going to happen, came away, but forgot to return the fees, Mr. Sen justifiably commented on the in acceptability of these different stands. However, as regards the other four directors in the Roy group and the Sachindra Nath Basu group these comments could not be made. There were affidavits by the other directors along with the affidavit of Raut where they all denied the actual holding of meeting of 29. 4. 89. As to those other members Mr. However, as regards the other four directors in the Roy group and the Sachindra Nath Basu group these comments could not be made. There were affidavits by the other directors along with the affidavit of Raut where they all denied the actual holding of meeting of 29. 4. 89. As to those other members Mr. Sen could not give a good factual reply nor could he produce any notice whatsoever which was even attempted to be given to the directors as regards the meeting of 29. 4. 89. Mr. Nag appearing for the company made several submissions. But as regards this meeting he said that if the court, in view of the company's submissions, thought it fit to strike out this Board resolution he would not stand in the way. 30. REGARDING the minutes of 29.7.89 Mr. Sen emphasized that the holding of the meeting is undisputed. As to the version of the petitioners, Mr. Sen submitted that even if his clients' version is rejected (for the sake of argument) then on the same line of reasoning the version of the petitioners should also be rejected. If [non-registration of Madhujit's shares is unacceptable as a resolution, the acceptance of Madhujit's shares by way of a resolution is as unacceptable, because the Board would split 3 : 3 without Sachindra and Gouri voting. In our opinion, although this might be quite true, the version of the petitioners is not under challenge: the petitioners are not alleged to be the persons causing ouster; the version recorded in the Minute Book is under challenge; that version the company is acting upon. Thus, if that version is found to be untrue and unacceptable appropriate orders must be passed in that regard. Factually no sufficiently persuasive submission could be made as to the document of the UCO Bank annexed to the petition where D. P. Roy is shown to be present in the Chair. As to the co-option of the three directors in Samarendra's group raising the number of directors from 8 to 11 Mr. Sen's argument of rejecting the petitioners' version does not hold water. This is because if three directors of Samarendra were voting for the three co-options and the five directors were voting against there would be no co-option. 31. As to the co-option of the three directors in Samarendra's group raising the number of directors from 8 to 11 Mr. Sen's argument of rejecting the petitioners' version does not hold water. This is because if three directors of Samarendra were voting for the three co-options and the five directors were voting against there would be no co-option. 31. ON the factual score it appears that there is no answer to the allegation that the minutes of 29.7.89 are faked, in the sense that those minutes do not represent accurately the transactions which took place at the meeting. Since those minutes are signed by Samarendra Nath Basu, who takes upon himself the responsibility of authenticating those, he must be held to be the principal guilty person for bringing about this false state of affairs in a statutory book of the company. What the consequence of these falsifications is, we shall mention at the end of this order. 32. MR. Sen gave us several authorities and in particular he relied upon the recent Supreme Court decision of Kilpest reported at 87 Co. Cases 615. The case of Ebrohami vs. Westbourne Galleries is considered there. It is stated there that the court should not readily deal with public companies as partners under a cover, as was done in that English case nor should the court allow the interest of shareholders to suffer because of directorial squabbles. Mr. Sen submitted that the directorial squabbles between the Roys and the Basu should not cause prejudice to the company and therefore, to the shareholders. He also gave us the case of Lalita reported at AIR 1962 Cal 127 and other cases. Mr. Sen submitted that it is a pre-condition for getting relief under Section 397 that a case should be made out that the company should be wound up on just and equitable grounds. Only then does come the further stage of enquiry, whether such a winding up would prejudice the petitioners, if a favourable answer is got by the petitioners to the second question also, then and in that event only does the question of grant of relief arise. 33. MR. Sen submitted that even if the 29. 4. 89 minutes are false, all that was effectively done on that day was that the Garden Manager Mr. Mrinal Kanti Bose was removed from service. 33. MR. Sen submitted that even if the 29. 4. 89 minutes are false, all that was effectively done on that day was that the Garden Manager Mr. Mrinal Kanti Bose was removed from service. He said that nobody can imagine that winding up of a company for termination of service of a garden Manager. 3. 15/3. 45 34. AS regards the meeting of July 1989 Mr. Sen again submitted that if that resolution is struck out the meeting would be of no effect and then that can be done without winding up the company. If a petition had been presented for just and equitable winding up for one faked board minutes, in regard to a prosperous company doing very well by any standards the court would have no hesitation in throwing that petition out. If that be so the petitioners do not cross the first hurdle and they cannot show that the company should be wound up. If they cannot show that, then they cannot get relief. We; shall come to the other arguments of Mr. Sen but let us deal with this aspect at this stage. The reports are full of cases where 397/398 proceedings have succeeded because of ouster or mismanagement shown on the basis 01 company or board minutes. Sindhri Iron Foundry is a case just like that mentioned above, and which we mention here again, for the sake of an example. It might be that an order for just and equitable winding up on the ground of faked minutes is not so common to find as oppression or mismanagement applications founded on these minutes. But the answer to this problem is very simple. When minutes are the product of fraud or coercion, when illegal actions have caused ouster from the company, so as to benefit the oppressing group, the complaining faction which comes to court has, from the very beginning, no intention of killing the company. The war that is afoot is the war of control not the war of keeping the company alive or killing it. The war that is afoot is the war of control not the war of keeping the company alive or killing it. We set out below that portion of Section 397 which deals with this aspect of the case, namely when the power of the court arises to pass orders; that is 397 (2) (b) and is as follows : "(b) that to wind up the company would unfairly prejudice such member or members, but that other wise the facts would justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up"; 35. IF one were to approach simply these words, (which are taken from the English Act of 1948 and which have since given way to the "unfair prejudice" clauses in that country), then one can see an in-built logical contradiction herein. If it is just and equitable to wind up a company, then it is just and equitable to wind up in the entirety of the facts and circumstances; if that be so how can it unfairly prejudice any member of the company ? 36. BUT to apply pure logic in these matters of practical law would be a serious error. It is much more important to apply wisdom, common sense and experience. Experience teaches one that the courts have looked upon the above part of Section 397, generally speaking, as a whole. It is true that a very strong case as regards justice and equity has to be made out by the petitioners; but when they make out such a case in an oppression petition (exclusion is one of the worst forms of oppression)they, while making out such a case, cannot escape making out the other case in the same breach that they do not wish to kill the company altogether. This is why the challenged the board minutes and challenged company resolutions more often form the subject matter of oppression petitions rather than subject matters of petitions for singly a just and equitable winding up. We note that where mismanagement itself is concerned, namely the sphere of Section 398, this peculiar phraseology of making just and equitable winding up a condition precedent and yet unfair as an order does not occur as we have mentioned in the very beginning this is an oppression application an not a mismanagement application. Mr. We note that where mismanagement itself is concerned, namely the sphere of Section 398, this peculiar phraseology of making just and equitable winding up a condition precedent and yet unfair as an order does not occur as we have mentioned in the very beginning this is an oppression application an not a mismanagement application. Mr. Sen relied heavily also on the case of Scottish Cooperative, reported at 1958 (3) AIR page 366 which was the first House of Lord's decision on the then newly introduced oppression clause in the 1948 Act in England. It was there ordered that the oppressed do sell their shares even to the oppressors. Mr. Sen submitted that if the shareholder's complain that their investment in the company is becoming useless then their complaints will be put to an end if they get a fair value for their shares. The specious argument, that it is unjust to compel the oppressed to sell their shares to the oppressors is seen to be an unacceptable argument on closer scrutiny, when shares are seem as money investments. 37. ALTHOUGH Mr. Sen could not give any extenuating or supporting circumstances in regard to the absence of judgment in the court below, and he said it was a disturbing matter, he submitted that yet the order passed relating to disinvestment by the Roys is a fully supportable order. 38. HE said that the company was a Basu company from the inception which was built by Sachindra and Samarendra's father. Some years before the problems of 1988-89 started, the elder brother Sachindra had written to the younger brother about buying up The spread out shares, so as to dilute the importance of the Roys; they were described as trustees in that letter. Mr. Sen submitted that it would not be proper to turn a Basu concern into a Roy concern. He submitted that the petitioner companies of the Roys have not managed their affairs well. He gave us reports of two companies but we do not like to rely on these heavily when these have not formed the subject of pleadings. Mr. Sen submitted that the Roys have spoilt their companies and will spoil the company of the Basus also. As against this Mr. Chatterji submitted that the Tea Industry is now in a boom and one petitioner company, Atiabari, has declared a hundred per cent dividend. That is again without pleadings. Mr. Sen submitted that the Roys have spoilt their companies and will spoil the company of the Basus also. As against this Mr. Chatterji submitted that the Tea Industry is now in a boom and one petitioner company, Atiabari, has declared a hundred per cent dividend. That is again without pleadings. It is not right to pass serious orders on mere submissions and stray papers. 39. MR. Sen then emphasised the role of Samarendra Math Basu played in the prosperity of the company. He said that the ten garden in the interior of Assam is located in a sensitive area and since Samarendra nath Basu has shown himself capable of managing the garden in that area it is necessary in the interest of the company to retain him. 40. THE suggestions as to buying out of shares of the Roys and re-distribution amongst the Basus however took widely divergent forms when coming from Samarendra Nath Basu and from the company itself. We have dictated a note in the morning in this regard and that note is set out hereunder again for ready reference : "during the course of argument it was suggested, completely without prejudice, on behalf of Mr. Samarendra Nath Basu, upon taking full instructions, that by way of settlement on a practical view of the matter the company should buy out of its own funds the shares of the Roy Group including those of D. P. Roy, T. P. Roy and the four petitioner companies; after purchase of such shares the company should allot those shares in equal halves to Madhujit Basu and Partha Pratlm Basu so that the company remains a Basu concern. It was suggested that such allotment will be without taking any money from Partha Pratim Basu or Madhujit Basu. This came from Mr. Sen, Mr. Nag appearing for the company i. e. Dooars Assam Union Tea Co. Ltd. submitted on the other hand that if the company buys the shares of the Roy Group and then allots those free of charge to Madhujit Basu and Partha Pratim Basu the company's funds would be significantly drained out as such, such allotment to Madhujit Basu and Partha Pratim Basu must be on payment by them of the equal amount as has to be paid out by the company to the Roys for buying up their shares. This was categorically stated and insisted upon by Mr. Nag. This was categorically stated and insisted upon by Mr. Nag. We note that so far as the suggestion of conclusion of litigation in this manner is concerned there is notable difference between the suggestion put forward on behalf of Mr. Samarendra Nath Basu and the suggestion put forward on behalf of Dooars Assam Union on Tea Co. Ltd. The matter be kept recorded as a Note in this proceeding. Copy of the Note by way of signed copy be given to the parties on the usual undertakings as do an order although we are aware that this mere Note is not an order". Mr. Nag, appearing for the company, did not take very long in his arguments especially because he had made some arguments which produced the order of 1. 9. 97. However, he submitted with regard to the minutes of July 1989 also that if in view of his submissions those minutes were to be struck out then those had to be struck out 41. IN the facts and circumstances of this case we are of the clear opinion that Samarendra Nath Basu and his group have falsified the director's minute book especially with regard to the minutes of the Board dated 29.4.89 and 29.7.89. We are also of the opinion that when this has been done with the obvious motive of maintaining his own control over the company, the petitioners have justly lost faith and confidence in the management under the helmsmanship of Samarendranath Basu. Although madhujit Basu being the aggrieved person with refused share registration joined as petitioner and his father and mother were on the side of the respondents, we do not find in this scheme of arrangement of parties any such obliquity or impropriety of motive which would indicate that relief should be refused to Madhujit Basu or the Roys. Although the formula evolved in the Scottish Cooperative case was that of sale of shares of the oppressed yet that is not an inflexible formula. The bringing of the matters complained of to an end has to be adjusted in the facts and circumstances of each different case. Although the formula evolved in the Scottish Cooperative case was that of sale of shares of the oppressed yet that is not an inflexible formula. The bringing of the matters complained of to an end has to be adjusted in the facts and circumstances of each different case. The person who is guilty and who has caused loss of faith in the management by himself and his group, cannot take advantage of his own wrong and cannot say that because he is the oppressor he must be allowed to buy up the shares of the oppressed. We do not see any reason why the largest block of share holders being the Roys and their companies should be compelled to disinvest in favour of either groups of the Basus. Even on the basis of the dicta in the kilpest case referred to above, we treat the company as a company and if we do so we must give the shareholding of the Roys all the value and power that such shareholding commands at law. If such be the position a sale out by the Roys, because Samarendranath Basu has faked minutes, would be a misapplication of the Scottish Cooperative principles. 42. WE do not see why a company which is apparently prosperous needs samarendra Nath Basu at its helm through out He might have managed the company efficiently but the others who are shareholders must have a chance now also let us do a little bit at self-catechism at this stage. It is necessary to see where the company stands now. . . . . . . (contd.)3-45/4-00 q. Has the company any audited accounts ? ans. No. Q. How long has it been slipping up ? ans. Quite a few years, certainly after 1993 when the impugned order was passed. Q. Has the company any other type of acceptable accounts ? ans. No. And thus in spite of an order of furnishing of accounts passed by the Court of Appeal on 19th September,1995. Q. Has the Company declared any dividends recently ? ans. None whatsoever. Q. What is the justification of the Company ? ans. The justification is that no general meetings of the company can be held because of the writ in regard to Madhujit's share transfer and because declared dividends have to be passed by the corporators, dividends cannot be paid. Q. Has the Company declared any dividends recently ? ans. None whatsoever. Q. What is the justification of the Company ? ans. The justification is that no general meetings of the company can be held because of the writ in regard to Madhujit's share transfer and because declared dividends have to be passed by the corporators, dividends cannot be paid. Q. Are there audited accounts of the company upto date which may be passed for all the years with appropriate orders from court if the company is allowed to hold a general meeting now ? ans. No audited accounts for any years have surfaced in the papers in the court of Appeal. Q. If the company is doing well where have all the profits gone ? ans. Nobody knows, most probably towards the personal benefit of samarendra Nath Basu and his group. The above will clearly show that the affairs need drastic rectification. Although we have stated that the order appealed against is to be found set out in full in the interlocutory appellate order dated 1. 9. 97, still, even at the cost of repetition, we. set out below the entirety of the extract from the minutes of 23. 6. 93, so that the entire materials are readily available at hand : "C. P. No 163 of 1990 in THE HIGH COURT AT CALCUTTA original JURISDICTION before : the Hon'ble Padma Khastgir. Acting Chief Justice 23.6.1993. In re : Diabari Tea Co. Ltd. Mr. T. Aich, Advocate appears. Vs. Sm. Roopa Seth, Advocate appears.-And- In the Matter dooars Assam Union Tea The Court delivers written co. Ltd. and Ors. judgment the Court : the petitioners 1 to 4, 6, 7 and 8 are directed to sell their shares to the Basu family represented by Samarendra Nath Basu, Gouri Basu respectively. Such shares are to be sold at a valuation to be made by a Chartered Accountant, as on 3rd April, 1990. Such valuer will submit his report within a month from this day. The remuneration of such valuer will be paid by the respondent company. Such sale to be effected within a month thereafter. In the event the said branches of the Basu family are unwilling to purchase the shares the petitioners may offer the same to the other branches and they would purchase the same failing which the shares may be purchased by the company at such valuation. Such sale to be effected within a month thereafter. In the event the said branches of the Basu family are unwilling to purchase the shares the petitioners may offer the same to the other branches and they would purchase the same failing which the shares may be purchased by the company at such valuation. J. Thomas and Co. would continue to act as the tea broking houses of the company until a fresh decision taken by the management. Samarendra nath Basu as the Managing Director is to continue till the next general meeting of the respondent company. All other interim order vacated. Liberty to apply. Such valuer may be selected from the approved list maintained by the High Court. Stay granted as prayed for, for a fortnight from date, all parties concerned to act on a signed copy of the minutes of this order on the usual undertaking. (For details see the original judgment)". 43. IN the above facts and circumstances, in our opinion, the following order is just and proper and we pass it. 44. THE Minutes of the Board dated 29.4.89 and 29.7.89 are struck out and cancelled. The directorial Board will hereafter be composed of the seven persons who were directors immediately prior to 29.7.89. One person excluded is Raut, in Sachindra's group, and that is because he has died. In place Raut, Madhujit Basu shall function as a Director, Gouri basu shall be Managing Director. Although Samarendra Nath Basu was a Director immediately prior to 29.7.89 and a Managing Director at that, yet, he shall not function as a Director or a Managing Director at that, yet, he shall not function as a Director or a Managing Director and he shall be restrained from attending any Board meeting for a period of two years from date hereof or the holding of an Annual General Meeting of the company whichever is earlier. Thus the presently functioning directors shall be six of the eight persons who were directors immediately prior to 29.7.89 Rqut being excluded for all times and Samarendra Nath Basu being excluded for the time being. Madhujit Basu shall come in as a new Director immediately as from date. The functioning Board shall, therefore, now be composed of seven persons, two from the Roy group, two from Samarendra Nath Basu's group excluding himself and three from sachindra Nath Basu's group. Madhujit Basu shall come in as a new Director immediately as from date. The functioning Board shall, therefore, now be composed of seven persons, two from the Roy group, two from Samarendra Nath Basu's group excluding himself and three from sachindra Nath Basu's group. The new Board shall consider the appropriateness of all share transfers which haver purportedly or allegedly taken place on or after 29.7.89 if the Board is of opinion in case of any of such transfers that the registration has been made on inadequate or improper materials the Board shall order rectification of the share register and such order shall be carried out by the company, its officers, servants and agents without any demur or protest. We make it clear that this scrutiny as to share registration shall be limited and limited only to shares registered or acquired after 29.7.89. The Board shall reconsider the writ petition filed by Brojen Das (now dead), the company being a party thereto and the stand which the company desires to take in that matter. Since an order of the company Law Board is prevailing and there is no direct stay against that the company shall go ahead with the registration of the shares of Brojen Das as were transferred to Madhujit basu and in regard to which shares and transfer documents were lodged by him or on his behalfs such registration of Brojen Das's shares In favour of Madhujit shall be made by the company and its officers, servants and agents without any delay whatsoever. The Board of Directors shall be free to ratify with retrospective effect the termination of service of Mrinal Kanti basu which had been effected purportedly on 29. 4. 89, if the Board is of opinion that that would be in the broad interests of the company. The Board of Directors shall be free to ratify with retrospective effect the termination of service of Mrinal Kanti basu which had been effected purportedly on 29. 4. 89, if the Board is of opinion that that would be in the broad interests of the company. The Minute Book shall be retained in court but might be taken away by an appropriately authorised' person, authority being given by the Board constituted under our order, after furnishing legible photocopies of each and every page of the said Book; the Board of Directors will be entitled to go into accounts and expenses incurred in regard to the affairs of the company for all the years past including accounts regarding sales and receipts of tea, payments to tea broking agents and other payments and expenses including litigation expenses and whether any expenses of individual persons have been unauthorisedly borne by the company. The order under appeal is set aside in toto and we have no words to describe how bad and insupportable we think it to be. The share transfer committee hereafter shall be composed of sachindira Nath Basu, Gouri Basu and Arabinda Basu, Samarendra Nath basu, the second respondent must pay costs fill for round both for the appeal and for the proceedings in the court below. He will pay each of the appellants excepting the appellants 5 and 6 costs before us and in the court below assessed at Rs. 75,000/- for each of those applicants; the same person viz. The respondent no. 2 Samarendra Nath Basu shall pay the costs to the appellant No. 5 Madhujit Basu assessed at Rs. 1,00,000/ -. He will also pay such compendious costs to each of the respondents 5 and 6 assessed at Rs. 1,00,000/- each. 45. NOTWITHSTANDING anything contained in the ordering portion above we have to add a clarification because we have no intention of making the present Board of Directors permanent. We have clarified that the present Board of Directors shall consist of eight persons, seven functioning as Samarendra Nath Bose is excluded from functioning for the time being. However, the entirety of the Board shall vacate office at the next general meeting of the company, whenever that might be held without breaking orders of Court. We have clarified that the present Board of Directors shall consist of eight persons, seven functioning as Samarendra Nath Bose is excluded from functioning for the time being. However, the entirety of the Board shall vacate office at the next general meeting of the company, whenever that might be held without breaking orders of Court. At that meeting the company and the members of the company shall elect their subsequent Board, including director and managing Directors and notice in regard to this agendum shall be appropriately served on all persons interested and concerned in that regard. At that general meeting the directors and Managing Directors including Samarendra Nath Bose, who will be vacating office, will be entitled to offer themselves for re-election. 46. IT is also necessary to clarify that for the past eight years or so the company has been functioning not at all at the instance of the shareholders but entirely through the Board of Directors. We have annulled the co-option of the three directors Brojeswar, Apurba and Goutam as that was faked in the minutes of 29/7/1989. We also make it clear that the subsequent directorial meetings held after 29/7/1989, wherever these three or any of these three co-opted directors might have taken part shall also stand annulled. In any event if appropriate notices for those directorial meetings had not been served to the other undisputed directors of the roy group and the Sachindra Nath Bose' s group the meetings will in any event have no effect. The result will be that the entire consequential directorial action after 29.7.89 stands annulled by this order of ours. Needless to mention the present directorial Board shall be entitled to reconsider, re-assess and pass fresh orders in regard to all these annulled matters, if necessary with retrospective effect. It is essential to give the directorial Board full and plenary powers as the special feature of the company has been, management through directors and riot management at the instance of shareholders at all. Mr. Chatterjee' s clients will be paid costs here and for the appeal by the respondent No. 2 Samarendra Nath Bose, such costs being assessed at Rs. 40,000. 00. 47. STAY of operation of this order is asked for on behalf of Samarendra nath Basu and the company separately but such prayers are refused in both the cases. 48. Mr. Chatterjee' s clients will be paid costs here and for the appeal by the respondent No. 2 Samarendra Nath Bose, such costs being assessed at Rs. 40,000. 00. 47. STAY of operation of this order is asked for on behalf of Samarendra nath Basu and the company separately but such prayers are refused in both the cases. 48. ALL parties, the company, Bank and all others concerned to act on a signed xerox copy of this dictated order on the usual undertakings.