Judgment :- Bhaskar Bhattacharya, J. These two appeals are at the instance of a plaintiff in a suit for declaration and injunction and is directed against a combined order dated August 6, 2010, passed by a learned Single Judge of this Court by which His Lordship disposed of two applications one filed by the plaintiff for injunction and the other filed by the defendants No. 1 to 13 for permission to hold meetings. The application filed by the defendants No.1 to 13 being G.A. No.4009 of 2008 for permission to hold meeting was disposed of by directing the defendant No.2 to hold and complete its 64th Annual General Meeting (AGM) for the year ending on March 31, 2007 within ten weeks from the date of passing of the order by complying with the provisions as to issuance of notice and laying of the balance sheet and profit and loss account of the company for the relevant financial year. His Lordship further ordered that as the defendant No.1 was also in default in holding AGMs for the financial year ended March 31, 2008 and March 31, 2009 and since there would be no time to hold the AGM for the financial year ended March 31, 2010, the company was directed to hold and complete the AGMs for the relevant financial year within eight weeks of the previous AGM. His Lordship further made it clear that the amended association of the company would apply. The prayer of injunction sought by the plaintiff in respect of the business transacted at the EGM of August 18, 2007 was, however, refused. Being dissatisfied, the plaintiff has come up with these two appeals. His Lordship further made it clear that the amended association of the company would apply. The prayer of injunction sought by the plaintiff in respect of the business transacted at the EGM of August 18, 2007 was, however, refused. Being dissatisfied, the plaintiff has come up with these two appeals. The appellant before us instituted a suit after taking leave under Clause 12 of the Letters Patent with the following reliefs: “a) A scheme be framed for the management and administration of Bengal Brick Field Owners’ Association having its registered office at 23A, Netaji Subhas Road, 3rd Floor, Kolkata-700001; b) Declaration that the amendments to the Memorandum of Association and the Articles of Association of the Bengal Brick Field Owners’ Association carried out on 18th August, 2007 are illegal, null and void; c) Declaration that all resolutions passed in the meeting on 18th August, 2007 with regard to the amendment of the Memorandum of Association and the Articles of Association of Bengal Brick Field Owners’ Association are illegal and null and void; d) Declaration that the notice dated 18th June, 2008 is illegal, null and void; e) Decree for perpetual injunction restraining the defendants and their servants and agents from holding the 64th Annual General Meeting of the Association on 21st July, 2008 in terms of the notice dated 18th June, 2008; f) Decree for perpetual injunction restraining the defendants and their servants and agents from taking any steps or any further steps on the basis of the notice dated 18th June, 2008 for holding of the 64th Annual General Meeting on 21st July, 2008; g) Decree for perpetual injunction restraining the defendant Nos.2 and 13 from representing themselves or holding themselves out as Office Bearers of the Association; h) Declaration that the defendant Nos.2 to 13 are not Office Bearers of the Association; i) Decree for perpetual injunction restraining the defendant Nos.2 to 13 from interfering with in any manner in the management and administration of the Association; j) Receiver; k) Injunction; l) Attachment before judgment; m) Costs; n) Further or other reliefs.” The facts leading to the filing of the aforesaid suit may be summed up thus: a) The company was an existing company within the meaning of Companies Act, 1956 and was registered under the previous statutory equivalent of what is now Section 25 of the 1956 Act. The company was established to promote, protect and safeguard the interest of the persons engaged in or concerned with the brick manufacturing business and trade in the State of West Bengal. The articles of association of the company that were subsisting immediately prior to the extraordinary general meeting of August 18, 2007 envisaged the members of the company electing an executive committee and also electing office bearers of the company each year. The executive committee would consist of a minimum of 60 and a maximum of 150 members. Prior to the said amendment, the members of the Association could elect directly, both the executive committee members and the office bearers of the company, in every year. Such procedure has been changed by way of amendment and after such amendment, the executive committee members are to be elected by the general members and the executive committee members are to elect office bearers from among themselves. b) By a notice of July 23, 2007 an extraordinary general meeting (EGM) of the company was convened to be held on August 18, 2007 for amending the memorandum and article of association of the company. The primary grievance of the plaintiff was that the plaintiff received no notice of the EGM. The further grievance of the plaintiff was that the amendments allowed at the EGM eroded the fundamental authority of the members of the company to choose office bearers and extended the tenure of office of both the executive committee members and office bearers to two years. c) The second challenge of the plaintiff as to the validity of the annual general meeting for the year ending on March 31, 2007, then convened to be held on July 21, 2008, at the time of institution of the suit, was on the premise that an annual general meeting (AGM) of a company may only be held in accordance with Section 166 of the Companies Act or not at all. According to the plaintiff, the company obtained an extension from the Registrar of Companies for holding its AGM for the year ending on March 31, 2007 by December 31, 2007 but no such AGM was held within such extended period. According to the plaintiff, the company had no authority to hold an AGM other than in accordance with the provision contained in Section 166 of the Act. According to the plaintiff, the company had no authority to hold an AGM other than in accordance with the provision contained in Section 166 of the Act. d) According to the contesting defendants, the plaintiff and some other similarly minded members of the company had always acted in concert. Accordingly, Kamal Krishna Ghosh, Bhaiya Surendra Singh and Subhendu Goswami, three of its members, have set up the plaintiff. The company and those at present in control thereof, insinuate that the said Ghosh, Singh and Goswami chose the plaintiff from among the members of the company who did not attend the EGM to espouse their personal cause. According to the contesting defendants, the notices for the EGM were duly issued to the members and the EGM was attended by a substantial number of the general members of the company. The defendants further alleged that the notices were sent under certificate of posting and produced a document to show due despatch of the notices. e) According to the contesting defendants, if the plaintiff was diligent, he would have known the fact that EGM had been convened and the amendments were passed thereat long before the present suit was filed. It is pointed out that the present suit has been brought a few days before the AGM for the year ended March 31, 2007 had been convened to be held on July 21, 2008 with a false charge of the plaintiff having been kept in the dark in the matter of EGM and the amendments proposed and passed thereat. According to the defendants, within a few days of institution of the suit, the said Ghosh and three other supporters applied to be added as parties following advertisements having been published pursuant to the leave granted under Order 1 Rule 8 of the Code of Civil Procedure. According to the defendants, within a few days of institution of the suit, the said Ghosh and three other supporters applied to be added as parties following advertisements having been published pursuant to the leave granted under Order 1 Rule 8 of the Code of Civil Procedure. f) In the aforesaid suit the defendant Nos.1 to 13 filed an application being G.A. No.4009 of 2008 with the following prayers: “a) If necessary, leave be given to the petitioners herein being the defendant Nos.1 to 13 to make the instant application; b) If necessary, leave be granted to the defendant Nos.1 to 13 being the petitioners herein to make an application before the Company Law Board for convening, conducting and holding the 65th Annual General Meeting of the defendant No.1 on such terms and conditions as this Hon’ble Court may deem fit and proper; c) This Hon’ble Court be pleased to record that the defendant Nos.1 to 13 intent to make an application under Section 167 of the Companies Act, 1956 to the Company Law Board for convening, conducting and holding the 65th Annual General Meeting of the Association viz. the defendant No1; d) Leave be given to the defendant Nos.1 to 13 being the petitioners herein to apply to the Company Law Board for convening, conducting and holding the 64th Annual General Meeting of the company to transact the business specified in the notice forming Annexure “A” hereto dated 18th June, 2008 on such terms and conditions as this Hon’ble Court may deem fit and proper; e) Costs of any incidental to this application be paid by the plaintiff; f) Ad interim orders in terms of prayers above; g) Such further and/or other order or orders be passed, direction or directions be given as Your Lordships may deem fit and proper.” g) The plaintiff resisted the said prayer on the ground that the decision to convene the AGM beyond December 31, 2007 was not only ultra vires the company’s charter but was also contrary to the governing statute. The substance of the plaintiff’s contention was that the company shall have no authority to hold or complete a General Meeting after the expiry of the period prescribed by the statute unless an extension thereof is obtained in accordance with the statute. The substance of the plaintiff’s contention was that the company shall have no authority to hold or complete a General Meeting after the expiry of the period prescribed by the statute unless an extension thereof is obtained in accordance with the statute. h) According to the plaintiff, in view of the provision contained in Section 167(2) of the Companies Act a civil court cannot grant any leave to the defendant to hold AGM beyond the time fixed by statute. i) The defendants, on the other hand, opposed the aforesaid contention and according to them, the provision contained in Sections 166, 167 and 168 of the Companies Act do not stand in the way of a company to call a meeting beyond the period although for not holding the meeting within the time it is to suffer penal consequences. j) By the order impugned herein the learned Single Judge appears to have accepted the aforesaid contention of the plaintiff that a company has no suo motu authority to hold its AGM beyond the time prescribed by statute. However, His Lordship was of the view that if the requirement of a company to hold its AGM is seen as a duty cast on the company by the governing statute, as is evident from the provisions of the companies Act, then it is necessary that such obligation be required to be discharged at the earliest and as the suit has been instituted by a member, in effect, for the benefit of the company and, consequently, for the benefit of all members of the company, any order passed in the present proceedings will not only bind the company but will also bind all its members and there is no impediment in issuing a direction to compel this company to hold the AGMs for which it is in default and consequently, the order impugned was passed. Being dissatisfied, the plaintiff has come up with the present appeal. Mr. Being dissatisfied, the plaintiff has come up with the present appeal. Mr. Banerjee, the learned Advocate appearing on behalf of the appellant, strenuously contended before us that the Companies Act, 1956 having given authority to the Company Law Board alone to give extension of time for holding Annual General Meeting beyond the time fixed by the said Act and at the same time, for holding of meeting beyond the period fixed by law, and there being a penal provision provided in the Act itself, a Civil Court cannot permit a company to hold a meeting beyond the said period. According to Mr. Banerjee, the learned Single Judge erred in law in giving sanction to the defendant No.1 to hold the meeting as the Civil Court, is not vested with such authority and it is only for the Company Law Board to pass such direction, if approached. In support of his contention, Mr. Banerjee places strong reliance upon the division bench decision of this court in the case of Ambary Tea Company Ltd. vs. Manjusree Saha reported in (1988) 1 Cal LT 61. Mr. Banerjee, therefore, prays for setting aside the order passed by the learned Single Judge. Mr. Mukherjee, the learned Senior Advocate appearing on behalf of the defendant Nos.1 to 13, however, opposed the aforesaid contention of Mr. Banerjee and submitted that the suit being one for administration of the company, if the Civil Court passes an order for holding Annual General Meeting of the company, the plaintiff praying for relief of administration of the company, cannot be prejudiced in anyway. If such meeting is held, Mr. Mukherjee continues, the plaintiff can establish its majority and can compel the company to alter earlier decision by the support by majority members. Mr. Mukherjee, therefore, prays for dismissal of the appeal. The only question that arises for determination in this appeal is whether the order passed by the learned Single Judge is illegal affecting any of the legal rights of the plaintiff so as to be aggrieved by the order impugned. In order to appreciate the question involved herein the provisions contained in Sections 166, 167 and 168 of the Companies Act are quoted below: “166. In order to appreciate the question involved herein the provisions contained in Sections 166, 167 and 168 of the Companies Act are quoted below: “166. Annual general meeting.- (1) Every company shall in each year hold in addition to any other meetings a general meeting as its annual general meeting and shall specify the meeting as such in the notices calling it; and not more than fifteen months shall elapse between the date of one annual general meeting of a company and that of the next: Provided that a company may hold its first annual general meeting within a period of not more than eighteen months from the date of its incorporation; and if such general meeting is held within that period, it shall not be necessary for the company to hold any annual general meeting in the year of its incorporation or in the following year: Provided further that the Registrar may, for any special reason, extend the time within which any annual general meeting (not being the first annual general meeting) shall be held, by a period not exceeding three months. (2) Every annual general meeting shall be called for a time during business hours, on a day that is not a public holiday, and shall be held either at the registered office of the company or at some other place within the city, town or village in which the registered office of the company is situate Provided that the Central Government may exempt any class of companies from the provisions of this sub-section subject to such conditions as it may impose: Provided further that— (a) a public company or a private company which is a subsidiary of a public company, may by its articles fix the time for its annual general meetings and may also by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings; and b) a private company which is not a subsidiary of a public company, may in like manner and also by a resolution agreed to by all the members thereof, fix the times as well as the place for its annual general meeting. “167. Power of Company Law Board to call annual general meeting. “167. Power of Company Law Board to call annual general meeting. – (1) if default is made in holding an annual general meeting in accordance with section 166, the Company Law Board may, notwithstanding anything in this Act or in the articles of the company, on the application of any member of the company, call, or direct the calling of, a general meeting of the company any give such ancillary or consequential directions as the Company Law Board thinks expedient in relation to the calling, holding and conducting of the meeting. Explanation.- The directions that may be given under this subsection may include a direction that one member of the company present in person or by proxy shall be deemed to constitute a meeting. (2) A general meeting held in pursuance of sub-section (1) shall, subject to any directions of the Company Law Board, be deemed to be an annual general meeting of the company. “168. Penalty for default in complying with section 166 or 167 – If default is made in holding a meeting of the company in accordance with section 166, or in complying with any directions of the Central Government under sub-section (1) of section 167, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to fifty thousand rupees and in the case of a continuing default, with a further fine which may extend to two thousand five hundred rupees for every day after the first during which such default continues.” A plain reading of the aforesaid provisions leaves no doubt that those cast a duty upon a company to hold the AGM within the time specified in Section 166 of the Act and in default, there is penal provision against the company and the officer of the company who is in default and the penalty in the form of fine would be assessed at the rate fixed for every day during the continuance of the default. Similarly, in case of a default, on the application of any of the members of the company, the Company Law Board may pass suitable direction for holding the meeting. Similarly, in case of a default, on the application of any of the members of the company, the Company Law Board may pass suitable direction for holding the meeting. In our view, it is preposterous to suggest that once default has occurred for any reason, the Directors of the company are incompetent to call any the AGM of their own after complying with the provisions of the Act unless recourse is taken by any member of the Company under Section 167 of the Act and the company and the officer responsible for the default will go on suffering the penalty so long an effective order is not passed under Section 167 of the Act. In our opinion, the provisions contained in Section 167 of the Act is merely an enabling one and it does not stand in the way of a Company in rectifying its own mistake and calling an AGM even after the prescribed period. It is not the law that after the period for calling the AGM as indicated in Section 166 of the Act is over, unless the time is extended by the Company Law Board for holding the AGM, the Directors would be incompetent to call a meeting of the AGM after complying with the formalities required for calling such a meeting although they would otherwise function as Directors. In the case of Ambary Tea Company Ltd (supra), the defendant Company held its 73rd Annual General Meeting for the year ending on 31st December, 1979 on 30th September, 1980. Thereafter, it defaulted in holding the Annual General Meeting for 1981, 1982 and 1983. On 23rd April 1984, the Directors, defendants Nos.2 to 9, issued notice calling the 74th, 75th and 76th Annual General Meetings. Two of the shareholders instituted a suit against the defendant No.1, i.e., the Company and defendants Nos.2 to 9 who were the Directors claiming, inter alia, declarations that the defendants-Directors had ceased to be Directors and the notice was void, a perpetual injunctions restraining the defendants from holding the meetings called by the said notice and for appointment by the Court of an Administrator of the Company to manage it. On an interlocutory application of the plaintiffs, the Trial Court appointed Joint Administrators to manage the Company. The defendants appealed. On an interlocutory application of the plaintiffs, the Trial Court appointed Joint Administrators to manage the Company. The defendants appealed. It was urged on behalf of the appellants that: (1) the default on the part of the Directors to hold the Annual General Meeting in accordance with the provisions of Section 166 of the Companies Act, 1956 did not result in the Directors’ automatically becoming functus officio but that they continued in their office and could validly call the Annual General Sleeting in respect of which default had been committed. (2) the order appointing Administrators to manage the Company and that too, on an interlocutory application was not proper and should be set aside by the appellate Court. The Respondents contended that failure of the Directors to comply with the statutory provisions relating to holding of Annual General Meeting resulted in ouster of the Directors from their office by operation of law and notice issued by such Directors calling the Annual General Meeting was void; and (3) in any event, the order of the Trial Court being a discretionary order and not altogether unreasonable could not be interfered with by the appellate Court. In such an appeal, it was held that the default in holding the Annual General Meeting of a Company under Section 166 of the Act did not mean that the Directors who were due to retire by rotation under Section 256 of the Act must be deemed to have vacated their office. Such Directors, the Division Bench proceeded, continued to remain Directors. Any other interpretation of the law, according to the said Division Bench, would lead to disruption in the management of Companies which was not the object of the Act because the management of Companies could not remain in static. According to the said Division Bench, after the default had occurred under Section 166 of the Act, the Directors, though they remained in office, did not have the power to call Annual General Meetings. Accordingly, the order appealed from was set aside except to the extent that the defendant Directors were restrained from calling the Annual General Meeting under the impugned notices. Accordingly, the order appealed from was set aside except to the extent that the defendant Directors were restrained from calling the Annual General Meeting under the impugned notices. With great respect to the Hon’ble Judges of the said Division Bench, we are unable to subscribe to the view taken by Their Lordships regarding interpretation of Section 167 of the Act as, in our opinion, it is not the mandate of the law that in case of default under Section 166 of the Act, it is obligatory upon the company or the defaulting Directors to approach the Company Law Board even if they propose to rectify their mistake and by giving penalty prescribed under Section 168 of the Act for the default already committed, decide to call a meeting of the AGM beyond the time prescribed by law. The object of the said provision, in our view, is to give right to a member of the Company to approach the Company Law Board if the existing management of the company avoids facing the share holders by not calling any AGM and at the same time, retains the office. But by that provision, the right of the Directors of the company to call AGM beyond the date prescribed under Section 166 of the Act is not taken away. As we intend to take a view which is in conflict with the one taken in the past by another Division Bench of this court, we propose to refer the matter before the Hon’ble Chief Justice for constituting a larger Bench for deciding the following questions of law before proceeding further: 1) Whether after the expiry of the period mentioned in Section 166 of the Act, the Directors of the Company become incapable of calling an AGM except by taking recourse to Section 167 of the Act on the basis of the order passed by the Company Law Board. 2) Whether the provisions contained in Section 167 of the Act is merely enabling one and does not take away the right of the defaulting Directors to call an AGM of its own without approaching the Company Law Board under Section 167 of the Act without however avoiding their penal liability for the default already committed in terms of Section 168 thereof. Let this matter be placed before the Hon’ble Chief Justice for appropriate order in terms of the Original Side Rules.