NARANJAN SINGH Vs. EDWARD GANJ PUBLIC WELFARE ASSOCIATION

JUDGEMENT

(1.) This petition has been filed under Ss. 397 and 398 of the Companies Act, 1956 (hereinafter called "the Act") by 468 persons for various reliefs mentioned therein. It was contested by respondents Nos. 1 to 9 and 11, inter alia, on the ground that the petition has not been filed by the requisite number of members and consequently, it was liable to be dismissed. On the above objection, issue No. 2 was framed which reads as follows :

(2.) The said issue was ordered to be treated as a preliminary one. The question that arises for determination is as to whether the petition is signed by the requisite number of members. Sub -section (1) of Sec. 399 of the Act deals with the right to apply under Ss. 397 and 398 which reads as follows:

(3.) It is evident from a reading of the sub -section that a petition under Sec. 397 or Sec. 398 can be filed by not less than l/5th of the total number of members of the company. In the present case, the total number of members admittedly was 1,545. Therefore, the petition could have been filed by 309 members. The petition is purported to have been filed by 468 members. The respondents have filed affidavits of 227 petitioners, wherein they have stated that Shri Niranjan Singh, son of Manna Singh, mentioned at serial No. 1 and Dewan Chand, son of Bahadur Chand, mentioned at serial No. 3, came to them and requested them that they should sign a blank paper because they had to file a suit against the Municipal Committee for stopping it from demolishing the new encroachments made by some of the members. They subsequently came to know that instead of filing a suit against the Municipal Committee, they filed the petition in this court. In addition, the names of 56 petitioners appear twice and the names of two persons appear thrice in the petition. The respondents have filed an affidavit of Shri Nand Lal, Municipal Commissioner, that the petitioner, Dial Chand, at serial No. 194 had died 2 1/2 years prior to that date. The affidavit was attested on 14th January, 1976. The petition bears the date 22nd of September, 1975. Thus, according to the affidavit, he had died prior to the filing of the petition. Therefore, according to the respondents, the names of 287 persons should be excluded from the petitioners.