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2015 DIGILAW 705 (CAL)

Partha Bhattacharya v. Jati Ranjan Banik

2015-08-21

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. This first appeal is directed against the judgment and decree dated 17th September, 2009 passed by the learned Civil Judge (Senior Division) 2nd Court at Alipore in Title Suit No.1933 of 2008 at the instance of the defendant Nos. 1 and 2/appellants. Let us now consider the merit of the instant appeal in the facts of the present case. The plaintiff Nos. 1, 2 and 3 as well as the defendant Nos. 1 and 2 are the shareholders of the defendant No. 3 company, namely, J.R. & M Banik Pvt. Ltd. Admittedly, the defendant Nos. 1 and 2 are the major shareholders of the said company as they purchased 51% shares from the plaintiff Nos. 1 and 2 by virtue of an agreement dated 5th November, 2006 (Ext. 3) entered into between the plaintiff Nos. 1 and 2 on one part and the defendant Nos. 1 and 2 on the other part. The said agreement provides that the Board of Directors of the company shall not accept more than 7 Directors. It further provides that initially there will be 4 Directors and out of them 2 Directors will be from the plaintiffs’ group and 2 Directors will be nominated by defendant Nos. 1 and 2. The said agreement also provides that the Chairman will be nominated by the plaintiffs’ group and the Managing Director will be nominated by the defendant Nos.1 and 2. It is alleged in the plaint that by a resolution adopted in the Board Meeting on 5th November, 2006, the defendant Nos.1 and 2 were taken in the Board of the defendant No. 3 company as Additional Directors. Admittedly, the plaintiff Nos.1 and 2 who promoted the said company were the Directors of the said company. According to the plaintiffs, the defendants Nos. 1 and 2 ceased to be the Additional Directors of the said company on the day when the Annual General Meeting was held on 12th September, 2007. It was further alleged by the plaintiff that the defendant Nos.1 and 2 did not participate in the Annual General Meeting held i.e., on 12th September, 2007 in spite of service of notice upon them under certificate of posting and they were not appointed as Directors of the defendant No. 3 company in the Annual General Meeting held on 12th September, 2007. The plaintiff challenged the legality of the Extraordinary General Meeting allegedly held on 22nd April, 2008 as such Extraordinary General Meeting was not held after due service of notice regarding holding of such Extraordinary General Meeting of the said Company upon them and also for the reason that such Meeting was not convened in accordance with the provisions of Section 169 of the Companies Act, 1956. The plaintiffs alleged that since the defendant Nos. 1 and 2 ceased to be the Additional Directors of the said company w.e.f. 12th September, 2007, and further since none of those defendants were appointed as Directors of the said company in the Extraordinary General Meeting held on 12th September, 2007, the Annual General Meeting which was convened by the defendant No.1, not being a Director of the said company, is illegal and null and void. Thus they claimed that their removal from the post of Directors and appointment of the defendant N0.1 as the Managing Director of the said company and induction of the defendant Nos. 2, 4 and 5 as the Directors of the said company, in the Extraordinary General Meeting held on 22nd April, 2008 were illegal and null and void. Accordingly, the plaintiffs filed the said suit seeking declaration that the Extraordinary General Meeting of the defendant No.3 held on 22nd April, 2008 is illegal and null and void and for cancellation of the Extraordinary General Meeting held on 22nd April, 2008. They also prayed that the resolution for termination of the plaintiff Nos.1, 2 and 3 as Directors of the said company and for appointment of the defendant No.1 as Managing Director and defendant Nos. 2, 4 and 5 as Directors of the said company adopted and passed in the said Extraordinary General Meeting, be declared as illegal, invalid and null and void. They have also prayed for cancellation of the return filed in Form No.32 recording the appointment of the defendant Nos. 1, 2, 4 and 5 as Directors and removal of the other Directors, viz. the plaintiff Nos.1, 2 and 3, filed with the Registrar of Companies. Perpetual injunction for restraining the defendant Nos. 1,2, 4 and 5 from representing the defendant No.3 before any forum or authority or to any other person is also prayed for by the plaintiffs. Permanent injunction was also prayed for restraining the defendant Nos. the plaintiff Nos.1, 2 and 3, filed with the Registrar of Companies. Perpetual injunction for restraining the defendant Nos. 1,2, 4 and 5 from representing the defendant No.3 before any forum or authority or to any other person is also prayed for by the plaintiffs. Permanent injunction was also prayed for restraining the defendant Nos. 1,2,4 and 5 from interfering with the affairs of the defendant No.3 in any manner and also for restraining them from representing themselves as Directors of the said company. Other incidental reliefs were also sought for in the said suit. The defendant Nos. 1 and 2 contested the said suit by filing written statement denying the material allegations therein. They challenged the legality and validity of the Annual General Meeting of the said company held on 12th September, 2007 due to non-service of notice regarding holding of such meeting on the said date, upon them. They disputed the plaintiffs’ claim that they ceased to be the Additional Directors of the said company w.e.f. 12th September, 2007 when Annual General Meeting was allegedly held without appointing the defendant Nos.1 and 2 as Directors of the said company. They claimed that the Extraordinary General Meeting held on 22nd April, 2008, was legal and valid inasmuch as such Extraordinary General Meeting was held upon service of notice upon the plaintiffs by adopting two modes of service i.e. Speed Post and under certificate of posting. They further claimed that since the defendant No.1 continued to be Managing Director of the said company on the day when such Extraordinary General Meeting was convened on the requisition of the shareholder, namely, the defendant No.2, the Extraordinary General meeting held on 22nd April, 2008 cannot be held to be illegal and/or invalid. Reading the pleadings of the parties, we are of the view, that the dispute between the parties centres around the issues regarding legality of the Annual General Meeting held on 12th September, 2007 and/or the legality of the Extraordinary General Meeting held on 22nd April, 2008. Of course, other issues were raised in the said suit and those were also decided by the learned Trial Judge in favour of the plaintiffs. The issues on which the fate of the suit was dependent are the issues as mentioned above which the learned Trial Judge has decided in favour of the plaintiffs. Of course, other issues were raised in the said suit and those were also decided by the learned Trial Judge in favour of the plaintiffs. The issues on which the fate of the suit was dependent are the issues as mentioned above which the learned Trial Judge has decided in favour of the plaintiffs. The learned Trial Judge held that the Annual General Meeting held on 12th September, 2007, was legal and valid. While coming to such conclusion the learned Trial Judge drew presumption regarding due service of notice of holding such Annual General Meeting upon the defendant Nos. 1 and 2 under certificate of posting. The learned Trial Judge also declared the Extraordinary General Meeting held on 22nd April, 2008 as invalid and null and void. The learned Trial Judge held that the defendant No.1 who convened the said Extraordinary General Meeting on 22nd April, 2008 on the requisition of the defendant No.2 being a shareholder, was incompetent to convene such Extraordinary General Meeting under Section 169 of the Companies Act as on the day when he convened such meeting, he was not an Additional Director of the said company in view of the provisions contained in Section 260 of the Companies Act. Thus, the learned Trial Judge decreed the said suit in part on contest with cost against the defendant Nos. 1 and 2. The Extraordinary General Meeting of the defendant No.3 Company held on 22nd April, 2008 was declared as illegal and null and void. All resolutions adopted in the Extraordinary General Meeting of the defendant No.3 Company were declared as illegal and null and void. The defendant Nos. 1, 2, 4 and 5 were restrained from representing themselves as Managing Directors and/or Directors of the defendant No.3 company on the basis of the resolution adopted in the Extraordinary General Meeting held on 22nd April 2008. The return filed in Form No.32 regarding the appointment of the defendant Nos. 1, 2, 4 and 5 as Directors and removal of the other Directors viz. the plaintiff No.1, 2 and 3 before the Registrar of Company, West Bengal was cancelled. However, the other reliefs which the plaintiffs claimed by way of perpetual injunction were not granted by the learned Trial Judge in the said suit. Being aggrieved by the judgment and decree passed by the learned Trial Judge as aforesaid, the defendant Nos. the plaintiff No.1, 2 and 3 before the Registrar of Company, West Bengal was cancelled. However, the other reliefs which the plaintiffs claimed by way of perpetual injunction were not granted by the learned Trial Judge in the said suit. Being aggrieved by the judgment and decree passed by the learned Trial Judge as aforesaid, the defendant Nos. 1 and 2 have filed the instant appeal before us. The plaintiffs have not filed any appeal and/or any cross-objection for challenging the decree by which the other reliefs claimed by the plaintiffs in the suit, were denied by the learned Trial Judge. Let us now consider as to how far the learned Trial Judge was justified in passing the said decree in favour of the plaintiffs in the facts as stated above. Since the fate of this appeal is dependent upon determination of the issues regarding legality of the Annual General Meeting held on 12th September, 2007 and/or the legality of the Extraordinary General Meeting held on 22nd April, 2008, this Court restricts its consideration to those two issues only as none of the learned Counsel appearing for the parties addressed us on the other issues by pointing out any illegality in the findings of the learned Trial Judge on the other issues framed in the said suit. Re: Legality of Annual General Meeting. Let us first of all consider the legality of the Annual General Meeting held on 12th September, 2007. The plaintiffs claimed that before holding the Annual General Meeting of the said company on 12th September, 2007, notice for holding such meeting dated 10th August, 2007 (Ext.7) was duly served upon the defendant No.1 under certificate of posting being Ext.7(a). The conclusion regarding due service of such notice on the defendant Nos. 1 and 2 was drawn by the learned Trial Judge on the basis of the presumption of due service of such notice under certificate of posting. The learned Trial Judge held that notice under certificate of posting was presumed to be duly served upon the defendant Nos. 1 and 2 within forty eight hours from the date of posting. Since Ext.7 (a) being the receipt of certificate of posting shows that the said notice (Ext. The learned Trial Judge held that notice under certificate of posting was presumed to be duly served upon the defendant Nos. 1 and 2 within forty eight hours from the date of posting. Since Ext.7 (a) being the receipt of certificate of posting shows that the said notice (Ext. 7) was posted on 11th August, 2007, the learned Trial Judge held that service of the said notice dated 10th August, 2007 was deemed to have been effected on 13th August, 2007 i.e., after expiration of forty eight hours from the date of posting the said letter. The learned Trial Judge further held that such notice was not only served upon the defendant Nos. 1 and 2 but such notice was legal and valid as the Annual General Meeting was called by giving sufficient notice as per the provision of Section 171 of the Companies Act. In this contest we are required to consider as to how far the learned Trial Judge was justified in drawing presumption regarding due service of notice (Ext.7) upon the defendant Nos.1 and 2 in the context of the pleadings of the parties and their evidence. On perusal of the plaint we find that the plaintiffs asserted that such notice was duly served upon the defendant Nos. 1 and 2 under certificate of posting. The defendant Nos. 1 and 2 denied service of such notice upon them in their written statement. The parties led their evidence to prove their respective claims on the issue regarding service of such notice by the plaintiff upon the defendant Nos. 1 and 2. Let us now consider the evidence of the parties to find out as to how far the parties succeeded in proving their respective claims regarding service or non-service of such notice by the plaintiffs upon the defendants/appellants. Both the plaintiff Nos. 1 and 2 adduced evidence in the suit. The plaintiff No. 1 did not say anything about service of such notice being Ext. 7 upon the defendant Nos. 1 and 2 in his examination-in-chief. He has not made any whisper about sending of such notice, under certificate of posting. He has also not said that such notice was duly served upon the defendant Nos. 1 and 2 in his examination-in-chief. In the cross-examination though he has denied the suggestion of not sending such notice dated 10th August, 2007 for service upon the defendant Nos. He has not made any whisper about sending of such notice, under certificate of posting. He has also not said that such notice was duly served upon the defendant Nos. 1 and 2 in his examination-in-chief. In the cross-examination though he has denied the suggestion of not sending such notice dated 10th August, 2007 for service upon the defendant Nos. 1 and 2 but he admitted that the expenses for sending the said notice dated 10th August, 2007 to the defendant Nos. 1 and 2 were not shown in the company’s Register and Voucher. Subsequently he voluntarily stated that expenses for sending notice to the defendant Nos. 1 and 2 were borne from his own pocket. This is all so far as the evidence of the plaintiff No.1 is concerned with regard to service of notice (Ext.7) upon the defendant Nos. 1 and 2. Let us now consider the evidence of the plaintiff No. 2 regarding service of such notice upon the defendant No.1 and 2. She stated that on 10th August, 2007, the plaintiff No.1 issued notice to herself and the defendant Nos. 1 and 2 intimating that the Annual General Meeting will be held on 12th September, 2007. That is all so far as her evidence is concerned regarding service of such notice upon the defendant Nos.1 and 2. The defendant also adduced evidence in the said suit. He in his evidence-in-chief categorically stated that no notice of the Annual General Meeting held on 12th September, 2007 was ever tendered to or served either upon him or upon the defendant No. 2 or upon the other shareholders of the defendant No. 3 company. He further stated that the document showing despatch of the purported notice dated 10th August, 2007 (Ext. 7) under certificate of posting (Ext. 7a) have been manufactured and fabricated by the plaintiff Nos. 1 and 2 for the purpose of this litigation. Despite he denied the service of notice upon the defendant Nos. 1 and 2 and the other shareholders for holding the said Annual General Meeting on 12th September, 2007 in his examination in chief, the plaintiffs did not cross-examine the said witness of the defendants/appellants on the point of service of the said notice (Ext.7) upon the said defendants. Thus, if the evidence of the parties regarding service of such notice (Ext. 7) upon the defendant Nos. Thus, if the evidence of the parties regarding service of such notice (Ext. 7) upon the defendant Nos. 1 and 2 is considered then we find that she claimed that her husband, viz, the plaintiff No.2 sent such notice for service upon the shareholders. Thus, she is not a witness to the posting of such notice by her husband under certificate of posting. Since she herself admitted that she did not post the said notice herself, it goes without saying that she had no direct knowledge about sending of such notice by her husband under certificate of posting. As such, even for not cross-examining the said witness of the plaintiffs regarding service of such notice (Ext.7) upon the defendants/appellants, no presumption regarding due service of such notice upon the defendants/appellants can be drawn. We find that the other witness of the plaintiff, viz., plaintiff No.1 has been sufficiently cross-examined by the defendant on the notice point. Though he stated in his cross examination that such notices were sent but he also admitted in his cross-examination that expenses for sending such notices were not reflected in the Register and Voucher of the said company. Though he voluntarily said that expenses for sending such notice to the defendant Nos. 1 and 2 were borne from his own pocket but no reliance can be placed on this part of the evidence of the said witness as a Director of a company is neither expected to spend money from his own pocket for the cause of the company nor the Companies Act imposes an obligation upon a Director to spend money from his own pocket to meet the expenses for service of notice for holding any Annual General Meeting of a company, upon the shareholders. It is not the case of the plaintiff that the company had no fund which could have been spent by the plaintiff for sending such notice to the defendant Nos. 1 and 2. As such sending of such notice by spending money from the pocket of the said witness is unworthy of reliance. It is not the case of the plaintiff that the company had no fund which could have been spent by the plaintiff for sending such notice to the defendant Nos. 1 and 2. As such sending of such notice by spending money from the pocket of the said witness is unworthy of reliance. Though service of notice under certificate of posting was permissible under the provision of the Companies Act at the relevant time and also as per the agreement entered into between the parties on 5th November, 2006 but still then we cannot be oblivious of the said agreement whereby the parties also agreed to adopt various modes of service of such notice by Fax, Telecopy or other wire transmission or by registered post. The mode of communication of such notice which was agreed upon between the parties was as follows:- “For JMRB Group : Phone – Fax E-mail I.D” “To PRB Group (defendants/appellants) Phone – Fax E-mail I.D” When the parties agreed to accept different modes of service of notice in their agreement, it is very astonishing to note as to why the plaintiff No 1 opted for the weakest form of service of notice (Ext. 7) upon the defendant Nos. 1 and 2, i.e., under certificate of posting, without adopting any other modes of service, particularly when the agreement provides that in case of sending of such notice by fax, telecopy or other wire transmission, service will be presumed to be effected on the date of its transmission and such service by mail will be presumed to be effected when such notice is received by the addressee. Thus, service of such notice upon the addressees by certificate of posting cannot be presumed as per the said agreement, unless the sender succeeds in proving that such notice was actually received by the addressee. Such evidence is lacking from the side of the plaintiffs. That apart failure to cross examine the defendants’ witness on the point of service of such notice (Ext. 7) upon the defendant proves that the plaintiffs admitted the defendants’ claim for non-service of such notice upon them. Let us now consider as to how far presumption regarding due service of such notice upon the addressee under certificate of posting, can be drawn in the light of the decision of the Hon’ble Supreme Court in the case of Mst. L. M. S. Ummu Saleema Vs. Let us now consider as to how far presumption regarding due service of such notice upon the addressee under certificate of posting, can be drawn in the light of the decision of the Hon’ble Supreme Court in the case of Mst. L. M. S. Ummu Saleema Vs. Shri B.B. Gujaral & Anr. reported in (1981) 3 SCC 317 wherein the Hon’ble Supreme Court held that certificate of posting might lead to a presumption that a letter addressed to the concerned authority was posted and in due course reached the addressee, but that is only a permissible and not an inevitable presumption. It was further held therein that neither Section 16 nor Section 114 of the Evidence Act compels the Court to draw a presumption. The Hon’ble Apex Court held that presumption may or may not be drawn and if presumption is drawn initially, on consideration of the evidence, the Court may ultimately hold that the presumption is rebutted and may arrive at a conclusion that no letter was received by the addressee or that no letter was ever despatched as claimed. In another decision of the Hon’ble Supreme Court in the case of Shiv Kumar and Ors. Vs. State of Haryana and Ors., reported in (1994) 4 SCC 445 , the Hon’ble Supreme Court held that “we have not felt safe to decide the controversy at hand on the basis of the certificate produced before us, as it is not difficult to get such postal seals at any point of time”. Keeping the aforesaid principles laid down by the Hon’ble Supreme Court in mind and after examining the evidence of the parties on the dispute regarding service of such notice being (Ext.7) upon the defendant Nos. 1 to 2 as recorded hereinabove, we have no hesitation to hold that the plaintiffs have failed to prove due service of such notice (Ext. 7) upon the defendant Nos. 1 and 2. We hold that the presumption attached to due service of notice by certificate of posting was duly rebutted by the addressee, viz. defendants/ appellants and since even thereafter the plaintiff did not take any steps for proving tendering of such notice to the addressees by bringing the postal peon in the dock , the plaintiffs have miserably failed to prove that such notice (Ext. 7) was duly served upon the defendant Nos. 1 & 2. defendants/ appellants and since even thereafter the plaintiff did not take any steps for proving tendering of such notice to the addressees by bringing the postal peon in the dock , the plaintiffs have miserably failed to prove that such notice (Ext. 7) was duly served upon the defendant Nos. 1 & 2. We thus, respectfully disagree with the findings of the learned Trial Judge regarding due service of such notice (Ext. 7) upon the defendant Nos. 1 and 2. Accordingly, we hold that the Annual General Meeting which was allegedly held on 12th September, 2007 was bad, illegal and ineffective and cannot be given effect to. Thus, we hold that the defendant Nos. 1 and 2 continued to be the Directors even after 12th September, 2007 and their Directorships remained unaffected by the alleged Annual General Meeting held on 12th September, 2007. Before coming to the aforesaid conclusion, we must record that we cannot be unmindful of the fact that the defendants/appellants were the major shareholders of the said company. If the Notice (Ext. 7) had really been served upon the said defendants/ appellants then we find no reason as to why the defendants who were the majority shareholders of the said company would refrain from attending the said meeting as they, could have out voted the plaintiffs being the minority shareholders by attending the said meeting. This is other reason which prompted us to conclude that the notice (Ext. 7) was not served upon the defendants/appellants. As such the Annual General Meeting held on 12th September, 2007 is bad, illegal and inoperative. Re: Legality of Extraordinary General Meeting: Let us now consider the legality of the Extraordinary General Meeting held on 22nd April, 2008. Such an Extraordinary General Meeting was requisitioned by the defendant No.2, who was admittedly the shareholder of the defendant No.3 company. On the requisition for calling such an Extraordinary General Meeting by the defendant No.2, the defendant No.1 being the Managing Director of the said company served notice dated 31st March, 2008 being (Ext. L-3) intimating the plaintiff No. 1, that an Extraordinary General Meeting of the said company will be held on 22nd April, 2008 at Reliance Diagnostics AE-337, Sector-I, Salt Lake City, Kolkata-700 064 at 10 A.M. to transact the businesses mentioned in the said notice. L-3) intimating the plaintiff No. 1, that an Extraordinary General Meeting of the said company will be held on 22nd April, 2008 at Reliance Diagnostics AE-337, Sector-I, Salt Lake City, Kolkata-700 064 at 10 A.M. to transact the businesses mentioned in the said notice. In the said notice it was mentioned that the Extraordinary General Meeting of the company is convened by the defendant No. 1 as the Managing Director of the said company as per the order of the Board. Identical notices were served upon the other shareholders of the said company. All such notices were sent by Speed Post as well as under certificate of posting. The learned Trial Judge after considering the pleadings of the parties as well as their evidence came to the conclusion that such notice was duly served upon the plaintiffs/ respondents. The plaintiffs/ respondents have not filed any appeal or cross-objection by challenging such finding of the learned Trial Judge. The defendants had no intention to conceal such notice. They accepted both the modes of service. Thus, in the absence of any reliable evidence that such notice was not served upon the plaintiff/respondent, we do not find any reason to differ from the findings of the learned Trial Judge regarding service of such notice upon the plaintiffs/respondents. Rather adverse presumption regarding due service of notice upon the plaintiffs, is drawn by this Court against the plaintiffs for their failure to cross-examine the defendants’ witness in this regard. On consideration of the pleadings of the plaintiffs as well as their evidence, we find that the plaintiffs/respondents challenged the legality of the Extraordinary General Meeting held on 22nd April, 2008 also on the ground that the defendant No. 1, who convened such Extraordinary General Meeting was not competent to do so in terms of the provision contained in Section 260 of the Companies Act, as according to the plaintiffs, the said defendant No. 1 ceased to be an Additional Director w.e.f. 12th September, 2007 when the Annual General Meeting was held. Section 260 of the Companies Act no doubt provides that Additional Directors will hold office only up to the date of next Annual General Meeting of the company. Nobody has brought on record the exact date when such Annual General Meeting was due to be held. Section 260 of the Companies Act no doubt provides that Additional Directors will hold office only up to the date of next Annual General Meeting of the company. Nobody has brought on record the exact date when such Annual General Meeting was due to be held. However, we find that the plaintiffs claimed that the Annual General Meeting was convened by the plaintiffs/appellants in 2007 vide notice being Ext. 7 and the said Annual General Meeting was held on 12th September, 2007. Having regard to the fact that we have already held that the said Annual General Meeting which was allegedly held on 12th September, 2007 was illegal and invalid and inoperative due to non-service of notice for holding such Annual General Meeting upon the defendants/respondents, we hold that the said defendants/appellants continued to remain Additional Directors of the said company even after 12th September, 2007. In fact, they were Additional Directors of the said company at the relevant time when the Extraordinary General Meeting was convened. Mr. Bhattacharya, Learned Senior Counsel appearing for the plaintiffs/respondents submits that Section 169(1) of the said Act provides that the Board of Directors of the Company is required to call an Extraordinary General Meeting of the Company, when such meeting is requisitioned by the share holders. He further submits that since such Extraordinary General Meeting was not convened by the Board of Directors of the company, convening such an Extraordinary General Meeting by the defendant No.1 on the requisition of the shareholder, was also bad and illegal. Mr. Banerjee, Learned Senior Counsel appearing for the Defendants/Appellants, has drawn our attention to the notice being (Ext. L-3) to show that the said notice was issued by the defendant No. 1 as the Managing Director of the said company and such notice was issued by him as per the order of the Board of Directors. Though the said letter was tendered into evidence and was also admitted into evidence on proof but the plaintiffs/respondents did not cross-examine the defendants’ witness as to how the defendant No.1 was authorized by the Board of Directors of the said company to convene such meeting. The defendant No.1/appellant was also not called upon to produce the resolution authorizing the Defendant No.1 to convene such meeting on behalf of the Board of Directors. The defendant No.1/appellant was also not called upon to produce the resolution authorizing the Defendant No.1 to convene such meeting on behalf of the Board of Directors. As such for non-production of such resolution and/or authorization we cannot hold that the defendant No.1 was not authorized by the Board of Directors of the said company to convene such meeting. We, thus, hold that the Extraordinary General Meeting was validly held on 22nd April, 2008 and the resolution adopted in the said meeting is also good, valid and effective inasmuch as such resolution was adopted by the majority shareholders. We, thus, ultimately conclude by holding that the learned Trial Judge was not justified in passing a decree in favour of the plaintiff even in part. The impugned judgment and decree is, thus, set aside. The suit is thus dismissed on contest. Before concluding, we also like to record herein that after the appeal was entertained, the other Division Bench of this High court directed for holding of another Extraordinary General Meeting under the supervision of the special Officer appointed by the Court and the said order was ultimately approved by the Hon’ble Supreme court in the special leave petition filed by the plaintiffs. Such a meeting was held under the supervision of the Special Officer and in the said meeting the defendant No.1 was appointed as Managing Director and the defendant Nos. 2, 4 & 5 were appointed as Directors and the plaintiffs were not appointed as Directors. Thus, the affairs of the said company was allowed to be managed by these defendants during the pendency of this appeal, in terms of the resolution adopted in the said meeting. Hence the appeal is allowed. Since the application for amendment of plaint has not been pressed by the Learned Counsel of the plaintiff/respondent in course of hearing of this appeal, we have not considered the same. The said application is deemed to be disposed of. Urgent Photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. I agree.