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3. Sometime in April 1947, 45 members of the club sent a requisition to the Club for convening an extraordinary general meeting, 'inter alia', to appoint a committee to consider the revn. of the Articles of Assocn. & to suggest changes wherever necessary (Ex. P. 1). In pursuance of this an extra-ordinary general meeting was duly held on 21-6-1947, & in that meeting a special committee of seven members besides the Stewards, who were 'ex-officio' members thereof was constituted for the specific purpose of the revn. of the Articles of Assocn. & the suggestion of changes. They were required to submit a report on that behalf by the end of September 1947, & it was also decided that a meeting of the general body should be called for not later than 31-10-1947 for the consideration of the report. The special committee had several sittings, & in the meeting of 13-9-1947 they proposed several alterations to the Articles, the most important of which were that the management of the business of the Club should vest in a Managing Committee of 12 members instead of the Stewards, & that from among the members of the Managing Committee a senior Steward & five other Stewards should be elected, who should be solely responsible for the racing. They also recommended the abolition of the proxy system of voting. Under a license granted by the Central Government under Section 26 (2), Companies Act, 1913, the club was permitted to be registered as a company with a limited liability without the addition of the word "Limited" to its name. The Provincial Govt. on whom the duty of issuing licenses subsequently devolved framed regulations under the said section governing the issue of licenses (Vide Development Dept. Notfn., Fort, St. George, 6-3-1937, G.O. No. 549). Under Clause 8 of this Notfn.:

This notice, it is common ground, was posted at Guindy on the 16th October. About the same time notice of the annual general meeting of the Club fixed to 18-11-1947 was also issued to the members. The extraordinary general meeting was also advertised in the Hindu of 18-10-1947 (Ex. P. 10) and the Madras Mail of even date (Ex. P. 11). in pursuance of the notice Ex. P. 8, the Club received 24 nominations for the membership of the Managing Committee which was communicated to the members by notice dated 27-10-1947 (Ex. P. 12). By 29-10-1947 the Club received notice of amendments to the Articles of Assocn. from Messrs. T.T. Krishnamachari, G. Narasimham, A.R. Srinivasan & the Rajah of Vizianagaram, & these were notified to the members by a notice of 29-10-1947 (Ex. P. 13). On the 21-10-1947 (it is admitted, before us by both sides, though there is no evidence regarding it) the Club Bent the printed draft of the proposed amendments to the Articles of Assocn., Ex. P. 30, to all the members. On 5-11-1947 the Govt. of Madras suggested that the Articles of Assocn. might be suit ably amended to eliminate voting by proxy & to delete Arts. 55, 56 & 57 altogether with a view to make the members of the Race Club take full responsibility for the proper conduct of racing. In the light of this suggestion the Govt. wanted a fresh draft on those lines, or alternatively that the existing Articles suitably altered & approved by the general body be submitted to them through the Registrar of Joint Stock Companies, Madras, for approval before "it is finalised". At 5 p.m. on 7-11-1947 the special committee met & considered the proposal of the Govt. They passed at that meeting two resolutions:

14. We are therefore left with Ex. P. 17 & the oral evidence adduced by the parties on this question. It may be mentioned that it is common ground that at that meeting there was confusion is that there was a heated debate on the question whether voting by proxies should or should not be abolished. The meeting went on from 6-30 p.m. beyond 10 p.m. The pltfs. examined three witnesses on their side to prove that only the resolution of the committee was put to the meeting & was carried & also to prove that the members present at the time of voting were more than 67. (Their Lordships then discussed the evidence that P. W. 1 stated in chief-examination that the resolution of the special committee was to put to vote & carried by 66 votes for & one remaining neutral & in cross-examination he states that item V of the Agenda was not moved & that he did not remember whether the special resolution was moved by the chairman & that P. Ws. 2 & 3 have not spoken anything about the special resolution in the cross-examination & therefore the defts. did not ask the said two witnesses about it in cross-examination & then proceeded:) It is urged that this omission was due to the fact that the pltfs. themselves did not put the negative to the two witnesses, P. Ws. 2 & 3, in the chief examination. The burden of proving that a special resolution was passed at the meeting in the circumstances of this case when it was vehemently denied by the pltfs. was certainly on the defts. Of course if there had been a record of the minutes of the meeting as contemplated by Section 83, Companies Act that would have helped the defts. & would have shifted the burden on to the pltfs. to show that what was recorded was not true & accurate. In the absence of such record the burden lies heavily on the defts. to prove beyond doubt that the special resolution was moved at the meeting & carried by the required majority. In our opinion, the defts. did not dare to put the question to these witnesses, as they were not sure of their ground. This is the only natural inference possible in the circumstances of the case.

If the pltfs. had waived their right to question the legality of the notice, it is urged that they are precluded from maintaining the suit not only on their behalf but also on behalf of other members. Strong reliance was placed on the decision. in 'Burt v. British National Life Assurance Assocn.', (1859) 4 De G & J 158: (124 R R 201) where it was held that a pltf. who has a right to complain of an act done to a numerous society of which he is a member, is entitled to sue on behalf of himself & all others similarly interested, though no other may wish to sue, so although there are a hundred who wish & are entitled to sue, still, if they sue by a pltf. who is personally precluded from suing, the suit cannot proceed, although other persons on whose behalf the suit was instituted might maintain the action as pit's. The question therefore resolves itself into this, namely, whether in view of the imperative provision regarding the notice in Section 81 (2) it is open to the pltfs. to waive their right to object to an illegality, the right being certainly not their personal right but a right belonging to them in their corporate character. The proviso t$ Section 117 (2) of the English Act was added for the first time in 1929 in view of the decision in Oxford Motor Co., In re', (1921) 3 KB 32: (90 L J K B 1145), which decided that it was competent for the shareholders of the Co. acting together to waive the formalities required by Section 69 of the Companies (Consolidation) Act, 1908 as to notice of intention to propose a resolution as an extraordinary resolution. In that case all the shareholders met & passed a resolution without objection & it was held that the want of notice could be waived. The Indian Companies Amending Act of 1936 introduced a similar proviso in Section 81 (2). Under this proviso it would be seen that the requirement as to 21 days' notice may be dispensed with by an agreement of all the members 'entitled to attend & vote' & not merely of all the members 'entitled to vote & present in person or proxy at the meeting. It requires therefore an agreement of all the members of the Club in order to dispense with the requirement of 21 days' notice. The proviso in other words indicates the intention on the part of the Legislature that the provision in Sub-section (2) is mandatory & that it can be dispensed with only by the agreement of all the members. It is not enough that the members present at the meeting indicated either expressly or impliedly they consented to or acquiesced in shortening the period of notice. An express consent of all the members to waive the notice has not been established in this case. Even if the members present agreed to waive the defect in the notice the meeting would not be a valid meeting. The pltfs. therefore are not precluded from raising the contention that the notice contravened the provision of Sub-section (2) of Section 81.