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44. Mr. Sen further submitted that although Dr. Dutta has disputed his cessation of office since April 4, 1997, but he took no steps to redress his grievances by legal proceedings contemporaneously. Form No. 32 was also filed regarding cessation of office by Dr. Dutta as a director under Section 283(1)(g) of the said Act on March 14,1997 (volume IV, pages 1870-1874 of the paper book).

45. He further contended that Section 397 of the said Act itself makes it clear that the oppression is to be qua shareholder. The directorial complaints cannot constitute shareholders oppression, and he relied upon the decisions reported in Bagree Cereals P. Ltd. v. Hanuman Prasad Bagri [2001] 105 Comp Cas 465 (Cal), Sheth Mohanlal Ganpatram v. Shri Sayaji Jubilee Cotton and Jute Mills Co. Ltd. and Hanuman Prasad Bagri v. Bagress Cereals P. Ltd. [2001] 105 Comp Cas 493 (SC).

60. Once it had been established that the petitioners have been wrongfully reduced from the majority position to minority, the petitioners were entitled to relief. He further contended that the board meetings convened purportedly to be shown in the absence of the petitioners, such board meetings have been found to be invalid. Once such a finding was reached, the consequential relief ought to have followed. All transactions at such invalid board meetings were required to be held null and void. The issuance of additional shares were required to be declared null and void. This would have resulted in the petitioners being restored to their majority status. In any event, he submitted that the conduct of the Sajal Dutta group having been found to be oppressive and wrongful, they should not be permitted to remain in control by an ineffective order. According to him, there is no infirmity in the order in so far as the pre-condition to be exercised in the light of Section 397 of the said Act is concerned. It is submitted that the order has to be read as a whole and it will be evident from the order that the Company Law Board was satisfied that a case for just and equitable winding up has been made out. In any event, it is not always necessary to record that a case for just and equitable winding up had been made out, particularly in a case, where the majority shareholders were ousted from their majority position and converted into minority. Section 398 of the said Act does not require such recording of satisfaction that a case for just and equitable winding up had been made out. There is no doubt that material changes had taken place in the company, which had been brought about by Mr. Sajal Kumar Dutta and his group. The argument that the company has done well under Sajal Kumar Dutta should not be countenanced as it is not correct on the facts and in any event, would amount to putting a premium on dishonestly and oppressive conduct. Further, the subsequent events regarding the alleged prosperity of the company are matters which could not be taken into account in an appeal restricted to questions of law. He further submitted that ordinarily the majority shareholders are not directed to go out of the company. In the instant case, the majority shareholders were the promoters of the company and the persons who conceived idea of setting up the company. It is also to be considered as to whether the petitioners being qualified doctors would be more suitable for controlling the company having a hospital as the only project. He further submitted that the respondents in continuation of their illegal activities for their wrongful gain committed contemptuous act by creating charge on all the movables and immovable properties of the company in favour of Bank of Baroda.

62. He further relied upon another decision reported in Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holding Ltd. and contended that in the present case there is an express finding of facts that the conduct of other group was oppressive and accordingly, the said group should be directed to sell out their shares to Dr. Kamal Kumar Dutta and other. According to Mr. Sarkar, in Bajrang Prasad Jalan v. Mahabir Prasad Jalan, , the court held that the minority who should be directed to sell out their shares to the majority shareholders. He also relied upon the decision reported in P. K. Prathapan v. Dale and Carrington Investments P. Ltd. [2002] 111 Comp Cas 425 (Ker) and contended oppression was a finding of fact when there was a finding of oppression and it was conducted in a manner oppressive to the members of the company, the Company Law Board has power to pass such order with a view to bring to an end to the matters complained of and can make such orders as it thinks fit. But such order should be reasonable, rendering justice to the parties.

67. Mr. Sarkar submitted that although the judgment in favour of the petitioner and despite a case of oppression having been found to have been made out, the petitioners were not granted adequate reliefs by cancelling the impugned shares and by restoring the petitioners to majority shareholder in the company. He also submitted that the allotments of shares that have been found by the Company Law Board to be oppressive, should be cancelled and a general meeting should be directed to be convened after the petitioners have been restored to their majority status and such general meeting would be held for the purpose of electing directors in the company. He further submitted that it is imperative that the present impasse be resolved so that the hospital of the company does not suffer any further prejudice. It is also submitted that the petitioners being doctors are better equipped to run the hospital of the company.