Satish Chandra, J. - (1.) THIS special appeal is directed against the judgment of the learned company judge dismissing a petition under Sections 397 and 398 of the Companies Act.
(2.) THE petition related to the Amritdhara Pharmacy Private Ltd. This company is essentially a family concern, nine out of 12 shareholders (holding 2,988 out of 3,000 shares) being members of the same family, while the other three (holding only 12 shares) are friends to whom a few shares were allotted as a special favour. Vimaldeo Sharma, the respondent No. 2, holds 1,360 shares. He also commands the support of his wife, Shrimati Kusum Sharma (125 shares), and his mother, Shrimati Subhadra Rani Sharma (100 shares). Thus he is in a position to exercise control over the affairs of the company. He was the managing director of the company. The appellant, Dr. Baldeo Sharma, holds 25 shares. He was, under the articles of association of the company, permanent chairman of the board of directors. He is the first appellant before us. Appellant No. 2, Vijai Pratap Gambhir, holds six shares in the company. The two appellants instituted a company petition, principally on the ground that the affairs of the Amritdhara Pharmacy Private Ltd. were being conducted in a manner which is contrary to public interest and which is prejudicial to the interest of the petitioners. It is also claimed that the affairs of the company were being conducted in a manner which is oppressive to its members, The parties had agreed that the company petition be decided on affidavit evidence coupled with documentary evidence. After hearing the parties the learned company judge found that the petitioners had failed to prove any of the allegations made by them and dismissed the company petition by his judgment dated 17th April, 1970. In his judgment the learned company judge also made directions for the holding of an extraordinary general meeting of the shareholders of the company to elect a third director because the existing directors, namely, the appellant. Dr. Baldev Sharma, and the respondent, Vimaldeo Sharma, were at loggerheads and there was a great danger of a deadlock arising in the conduct of the affairs of the company. The learned company judge fixed 16th May, 1970, for the holding of the aforesaid meeting. We are informed by the learned counsel that at the meeting held on 16th May, 1970, Shri Hiranand Sharma was elected as the third director of the company and he is still continuing as such.
(3.) LEARNED counsel for the appellants raised two preliminary points in support of his submission that the appellants have not had a fair trial. He has urged that the learned company judge was in error in refusing to accept his rejoinder -affidavit (which has been filed along with the application for adducing additional evidence in this special appeal). In the next place, his grievance is that his application for calling the deponents of the affidavits filed on behalf of the respondents for cross -examination was erroneously rejected.;