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J.P. Srivastava And Sons (Rampur) Pvt. ... vs Gwalior Sugar Company And Ors. on 18 January, 1999
cites
Section 397 in The Companies Act, 1956 [Entire Act]
Section 398 in The Companies Act, 1956 [Entire Act]
Duli Chand vs Mahabir Pershad Trilok Chand ... on 16 September, 1983
As per the judgment in Duli Chand v. Mahabir Pershad Trilok Chand Charitable Trust, AIR 1984 Delhi 145, trustees cannot authorise one of them to initiate any proceedings in the name of a trust and, therefore, the consent given by the trustees is something which they cannot give legally and as such even as per the decision of the apex court which has held that one cannot give consent in respect of a matter which does not admit delegation, this petition is not maintainable.
P. Punnaiah vs Jeypore Sugar Co. Ltd on 6 April, 1994
If it is so, then, as held by the apex court in P. Punnaiah v. Jeypore Sugar Co. Ltd. [1994] 81 Comp Cas 1 as referred to by Ms. Ahmedi, consent can be given only in respect of matters which one can do by himself.
Section 47 in The Indian Trusts Act, 1882 [Entire Act]
Section 153 in The Companies Act, 1956 [Entire Act]
Suresh Kumar Jain And Ors. vs Hindustan Ferro Industries Limited And ... on 15 June, 1998
In this connection, reference may be made to the decision of the Company Law Board in an unreported case, viz., Suresh Kumar Jain v. Hindustan Ferro Industries Limited, [1999] 96 Comp Cas 507 (CLB) wherein a petition was filed in the names of 24 shareholders and the allegation of the respondents was that some of the petitioners' signatures did not tally with the specimen signatures on the record of the company and some of the shareholders had not signed the petition and as such, the petition was not maintainable in terms of Section 399. However, it was noted that the petitioners had filed, before the preliminary objection was taken, a joint power of attorney signed by all the petitioners in favour of petitioner No. 1 to file the petition. The question that arose was whether the joint power of attorney which had not been filed along with the petition and in the absence of any mention in the petition that petitioner No. 1 was filing the petition on behalf of others as the holder of power of attorney, could be taken cognizance of. Since, the Company Law Board found that in the affidavit verifying the petition, petitioner No. 1 had claimed himself to be authorised and competent to verify the petition on behalf of all the petitioners and since the original of the power of attorney was filed even before any proceedings started and before the preliminary objection relating to the maintainability was raised, the Company Law Board held that the petition was maintainable. In the present case, petitioner No. 3, in the affidavit verifying the petition, has not mentioned anything about the trust and even the consent in writing given by the trustees has been filed more than two years after the petition was filed and after the maintainability issue was raised. Therefore, we are of the view that non-enclosing the consent document with the petition is fatal to the petition and as such the petition has to be held as not maintainable.
V.K. Mathur And Others vs K.C. Sharma And Others on 21 November, 1985
Further, he also stated that there is no indication as to when and how she became the trustee of the trust and as a matter of fact as per Section 153 of the Companies Act, the shares cannot be held in the name of a trust. Assuming that she had the consent of the trustees to file the petition, there is no such averment in the petition nor any consent letter enclosed with the petition. As per the Company Law Board regulations, consent letters have to be annexed with the petition which has not been complied with in this case. For this proposition he relied on V.K. Mathur v. K.C. Sharma [1987] 61 Comp Cas 143 (Delhi). Referring to Clause 7 of the trust deed filed along with reply to the application, Sarkar submitted that the trust was formed in December, 1978, for the benefit of one K.K. Srivastava and Y.K. Srivastava, minors at that time. Assuming that the 1,029 preference shares were in the name of the trust, as per Clause 7 of the trust deed 50 per cent, of the properties of the trust would absolutely vest in K.K. Srivastava when he attained the age of majority and the balance 50 per cent. when Y.K. Srivastava attained the age of 18. At the time the deed was executed, Y.K. Srivastava was two years old as stated in the trust deed itself and Y.K. Srivastava was one month old. Therefore, 50 per cent. of the shares would have absolutely vested in the name of K.K. Srivastava in 1994 and other 50 per cent. in Y.K. Srivastava in 1996. Therefore, in any way, when the petition was filed in 1995, the trust could not have had any right to file the petition in respect of 515 preference shares which would have by that time vested in K.K. Srivastava who is not a party to the proceedings. If these shares are excluded, even assuming that petitioner No. 3 was authorised to act on behalf of the trust, the total percentage of the shares held by the petitioners and the trust would be less than 10 per cent.
Pramod C. Bhat vs Kanwar Raj Nath on 13 April, 1954
15. Ms. Ahmedi, advocate for the petitioners, submitted that this petition was filed not only by and on behalf of petitioners Nos. 1 to 4 but also on behalf of the trust as the trustees had given their consent to the third petitioner to file the petition on behalf of the trust. She also submitted, referring to para. 2 of the petition, that the number of preference shares held by the trust has been indicated in ink and, therefore, it is not correct to say that the petitioners do not rely on these shares. According to her, not only the trustees passed a resolution on June 3, 1995, to give consent to the petitioner No. 3 to file the petition, two of the trustees had actually executed a stamped document on June 9, 1995, giving the consent in writing. The only lapse, she submitted, was that these documents were not annexed to the petition. As long as these documents evidence that they were executed prior in time to the filing of the petition and have been produced when objections were taken, it cannot be said that non-filing of these documents along with the petition is fatal to the petition. According to her, Section 399 does not stipulate that the consent letters should be filed along with the petition and if as per the Company Law Board regulations, the same is to be enclosed with the petition, then, not doing so is only a procedural lapse as it has been held in Promod C. Bhat v. Kanwar Raj Nath, AIR 1954 Bom 518, wherein it was held that "if a rule goes beyond the scope of authority conferred by a statute, then the rule would
obviously be bad and the rule cannot extend the authority of an officer conferred upon him by the Legislature". Therefore, she submitted that by not enclosing the consent letters with the petition, no statutory requirement has been violated and procedural lapse, if any, can always be condoned.