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9. Mr. S.S. Roy appeared with Mr. P.C. Sen and Goutam Mitra on behalf of the petitioner and submitted that first of all an order of injunction be passed restraining the defendants from interfering with the petitioner's services as the manager of the Bombay branch till the hearing of this suit. He submitted that while granting such an injunction the court has ample power under Order 39 of the CPC to grant such an interim relief and the court is not confined to or restricted by the provisions of the Specific Relief Act. As, according to Mr. Roy, the Specific Relief Act is not a complete code and is not exhaustive by itself, as such the court's power to grant such an interim relief is not confined to or restricted to the provisions of the Specific Relief Act. He further submitted that in proper cases the court has in fact granted an order of injunction. In this respect he craved reference to two English decisions reported in [1975] 2 All ER 233 (CA) (Chappell v. Times Newspapers Ltd.) and [1971] 3 All ER 1345 (CA) (Hill v. C. A. Parsons & Co. Ltd). Mr Roy further referred to a case (Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain) and submitted that although a contract of personal service cannot ordinarily be specifically enforced but an order of injunction can be granted, and he submitted that this case of the petitioner falls within the special exceptional category and as such an order of injunction restraining the defendants from interfering with the services of the petitioner as a branch manager should be granted. He particularly drew my attention to the judgment of Mr. Justice Bhagwati delivered in the case referred to above and submitted that a progressive view of the matter should be taken and considering the present difficulties in securing jobs in India, the law regarding master and servant should be given a liberal interpretation and reliefs should be granted in favour of the petitioner. He further submitted that cases involving personal relations and of personal nature should be distinguished from professional management of impersonal nature and in such cases there is no reason why specific performance should not be granted of any contract of employment which does not involve relationship of personal character. He further referred to cases reported in AIR 1914 Cal 362 and [1906] ILR 33 Cal 351, AIR 1925 Cal 233 (Ram Sadan Biswas v. Mathura Mohan Hazra) and [1932] 36 CWN 291 and AIR 1932 Cal 353 (Nanda Lal Mukherji, In re) and submitted that the court's power to grant an interim injunction is not limited in such a case to the provisions of the Specific Relief Act but the court in special circumstances may grant an order of injunction under Order 39 of the CPC. His second submission was that the plaintiff's position as a director should not be disturbed by the defendants till the hearing of this suit. He drew my attention to the fact that although Mr. Malkani was required to take the qualification share within two months from the 1st of August, 1976, before the said period of the two months expired, the articles of association of the company have been amended whereby it has been made no longer necessary for a director to hold any qualification share, and as such he is not disqualified from acting and holding himself out as a director of the company. Thirdly, he submitted that although Mr. Malkani was holding an office of profit of that of a manager with the company that fact was within the knowledge of the board of directors and the shareholders and in spite of having the said knowledge they have decided to appoint Mr. Malkani as a director, and as such he is not disqualified under Section 314 of the Companies Act. Fourthly, he submitted that not only the directors have written letters to him and accepted him as a director of the company but they have also written various letters to various parties including the directors of the American company bringing to their knowledge the fact that Mr. Malkani has been taken in as a director of the Indian company. Moreover, from the statutory returns filed by the company all along even as late as on 5th of January, 1978, it would appear that Mr. Malkani has been shown in the returns as a director of the company. Nowhere from the returns it would appear that Mr. Malkani was taken as a tentative director as alleged to be claimed by the respondents in these proceedings. He further submitted that, as his name appears from the statutory returns filed with the Registrar of Companies, those returns under Section 164 of the Companies Act shall prima facie be evidence of such directorship of the company. Moreover, under Section 303 of the Companies Act, every company is required to keep at its registered office a register containing the names of its directors, managing directors, secretary and other particulars. The company in this case has not produced the said register to show the actual position. As such his client should be regarded as a director of the company and the defendants should be injuncted from interfering with his position as a director. Last of all Mr. Roy submitted that the purported allotment of shares in favour of the defendants Nos. 1, 2 and 3 are not binding on the petitioner as from the returns filed with the Registrar of Companies it would not show that such a meeting was held and such shares were issued by the company to the said directors. Although he has not taken this point in the petition, he has submitted that he has taken this point in the affidavits in reply and the court is entitled to pass an order taking into consideration all the facts as pleaded in the affidavit-in-reply.

10. Mr. Sankar Das Banerjee, Mr. Ashoke Sen, Mr. Samiran Sen, Mr. Sahkar Ghosh, Mr. Sudipta Sircar and R.C. Nag appeared on behalf of the defendants. The first point taken by them is, the petitioner is not entitled to get any order of injunction restraining the company from interfering with or dispensing with his services as a branch manager of the company at Bombay as the court will not specifically perform a contract of personal service by giving an order of injunction ; secondly, Mr. Ghosh submitted that Mr. Malkani by not taking the qualification share within two months' time has disqualified himself to remain or act as a director; thirdly, Mr. Malkani by not disclosing his position or office of profit in the company has disqualified to remain as a director ; fourthly, the board of directors under the articles of association of the company cannot appoint any new directors, and as such any appointment by the directors is ultra vires the articles and is not binding on the company. Mr. Ghosh's further contention is that the oral agreement as set out by the petitioner is wrongful as there has never been such an agreement by and between the petitioner and the defendants Nos. 1, 2 and 3 to take him as a director on partnership basis and on equal terms. The court should not look into an oral agreement which is against the provisions of the articles of the company as under the articles of association of the company, it is the company which has the right to appoint the new directors. Moreover, he submitted that the terms alleged to have been agreed upon by and between the petitioner and the respondents Nos. 1, 2 and 3 are vague and not complete and as such not binding on the parties. He submitted that, although in the letters the expression "equal partnership" has appeared, yet no literal construction to the said words be given except to mean that the directors wanted to act in comradeship or in friendship with Mr. Malkani who was looking after the Bombay branch of the Indian company. Mr. Ghosh has submitted that the shares having already been allotted in favour of the defendants Nos. 1, 2 and 3 and as such no order of injunction can be passed in respect of non-allotment of shares. The petitioner, according to Mr. Ghosh, was not entitled to get any shares as there has never been any oral agreement to allot to him any share on equal basis along with the respondents Nos. 1, 2 and 3. Lastly, he submitted that no order should be passed on this application in favour of the petitioner.