Jyotirmay Bhattacharya, J. - (1.) THIS first appeal is directed against the judgment and decree dated 17th September, 2009 passed by the learned Civil Judge (Senior Division) 2nd Court at Alipore in Title Suit No. 1933 of 2008 at the instance of the defendant Nos. 1 and 2/appellants.
(2.) LET us now consider the merit of the instant appeal in the facts of the present case. The plaintiff Nos. 1, 2 and 3 as well as the defendant Nos. 1 and 2 are the shareholders of the defendant No. 3 company, namely, J.R. & M Banik Pvt. Ltd. Admittedly, the defendant Nos. 1 and 2 are the major shareholders of the said company as they purchased 51% shares from the plaintiff Nos. 1 and 2 by virtue of an agreement dated 5th November, 2006 (Ext. 3) entered into between the plaintiff Nos. 1 and 2 on one part and the defendant Nos. 1 and 2 on the other part. The said agreement provides that the Board of Directors of the company shall not accept more than 7 Directors. It further provides that initially there will be 4 Directors and out of them 2 Directors will be from the plaintiffs' group and 2 Directors will be nominated by defendant Nos. 1 and 2. The said agreement also provides that the Chairman will be nominated by the plaintiffs' group and the Managing Director will be nominated by the defendant Nos. 1 and 2. It is alleged in the plaint that by a resolution adopted in the Board Meeting on 5th November, 2006, the defendant Nos. 1 and 2 were taken in the Board of the defendant No. 3 company as Additional Directors. Admittedly, the plaintiff Nos. 1 and 2 who promoted the said company were the Directors of the said company. According to the plaintiffs, the defendants Nos. 1 and 2 ceased to be the Additional Directors of the said company on the day when the Annual General Meeting was held on 12th September, 2007. It was further alleged by the plaintiff that the defendant Nos. 1 and 2 did not participate in the Annual General Meeting held i.e., on 12th September, 2007 in spite of service of notice upon them under certificate of posting and they were not appointed as Directors of the defendant No. 3 company in the Annual General Meeting held on 12th September, 2007. The plaintiff challenged the legality of the Extraordinary General Meeting allegedly held on 22nd April, 2008 as such Extraordinary General Meeting was not held after due service of notice regarding holding of such Extraordinary General Meeting of the said Company upon them and also for the reason that such Meeting was not convened in accordance with the provisions of Section 169 of the Companies Act, 1956. The plaintiffs alleged that since the defendant Nos. 1 and 2 ceased to be the Additional Directors of the said company w.e.f 12th September, 2007, and further since none of those defendants were appointed as Directors of the said company in the Extraordinary General Meeting held on 12th September, 2007, the Annual General Meeting which was convened by the defendant No. 1, not being a Director of the said company, is illegal and null and void. Thus they claimed that their removal from the post of Directors and appointment of the defendant No. 1 as the Managing Director of the said company and induction of the defendant Nos. 2, 4 and 5 as the Directors of the said company, in the Extraordinary General Meeting held on 22nd April, 2008 were illegal and null and void. Accordingly, the plaintiffs filed the said suit seeking declaration that the Extraordinary General Meeting of the defendant No. 3 held on 22nd April, 2008 is illegal and null and void and for cancellation of the Extraordinary General Meeting held on 22nd April, 2008. They also prayed that the resolution for termination of the plaintiff Nos. 1, 2 and 3 as Directors of the said company and for appointment of the defendant No. 1 as Managing Director and defendant Nos. 2, 4 and 5 as Directors of the said company adopted and passed in the said Extraordinary General Meeting, be declared as illegal, invalid and null and void. They have also prayed for cancellation of the return filed in Form No. 32 recording the appointment of the defendant Nos. 1, 2, 4 and 5 as Directors and removal of the other Directors, viz. the plaintiff Nos. 1, 2 and 3, filed with the Registrar of Companies. Perpetual injunction for restraining the defendant Nos. 1, 2, 4 and 5 from representing the defendant No. 3 before any forum or authority or to any other person is also prayed for by the plaintiffs. Permanent injunction was also prayed for restraining the defendant Nos. 1, 2, 4 and 5 from interfering with the affairs of the defendant No. 3 in any manner and also for restraining them from representing themselves as Directors of the said company. Other incidental reliefs were also sought for in the said suit. The defendant Nos. 1 and 2 contested the said suit by filing written statement denying the material allegations therein. They challenged the legality and validity of the Annual General Meeting of the said company held on 12th September, 2007 due to non -service of notice regarding holding of such meeting on the said date, upon them. They disputed the plaintiffs' claim that they ceased to be the Additional Directors of the said company w.e.f. 12th September, 2007 when Annual General Meeting was allegedly held without appointing the defendant Nos. 1 and 2 as Directors of the said company. They claimed that the Extraordinary General Meeting held on 22nd April, 2008, was legal and valid inasmuch as such Extraordinary General Meeting was held upon service of notice upon the plaintiffs by adopting two modes of service i.e. Speed Post and under certificate of posting. They further claimed that since the defendant No. 1 continued to be Managing Director of the said company on the day when such Extraordinary General Meeting was convened on the requisition of the shareholder, namely, the defendant No. 2, the Extraordinary General meeting held on 22nd April, 2008 cannot be held to be illegal and/or invalid.
(3.) READING the pleadings of the parties, we are of the view, that the dispute between the parties centres around the issues regarding legality of the Annual General Meeting held on 12th September, 2007 and/or the legality of the Extraordinary General Meeting held on 22nd April, 2008. Of course, other issues were raised in the said suit and those were also decided by the learned Trial Judge in favour of the plaintiffs. The issues on which the fate of the suit was dependent are the issues as mentioned above which the learned Trial Judge has decided in favour of the plaintiffs. The learned Trial Judge held that the Annual General Meeting held on 12th September, 2007, was legal and valid. While coming to such conclusion the learned Trial Judge drew presumption regarding due service of notice of holding such Annual General Meeting upon the defendant Nos. 1 and 2 under certificate of posting. The learned Trial Judge also declared the Extraordinary General Meeting held on 22nd April, 2008 as invalid and null and void. The learned Trial Judge held that the defendant No. 1 who convened the said Extraordinary General Meeting on 22nd April, 2008 on the requisition of the defendant No. 2 being a shareholder, was incompetent to convene such Extraordinary General Meeting under Section 169 of the Companies Act as on the day when he convened such meeting, he was not an Additional Director of the said company in view of the provisions contained in Section 260 of the Companies Act. Thus, the learned Trial Judge decreed the said suit in part on contest with cost against the defendant Nos. 1 and 2. The Extraordinary General Meeting of the defendant No. 3 company held on 22nd April, 2008 was declared as illegal and null and void. All resolutions adopted in the Extraordinary General Meeting of the defendant No. 3 company were declared as illegal and null and void. The defendant Nos. 1, 2, 4 and 5 were restrained from representing themselves as Managing Directors and/or Directors of the defendant No. 3 company on the basis of the resolution adopted in the Extraordinary General Meeting held on 22nd April 2008. The return filed in Form No. 32 regarding the appointment of the defendant Nos. 1, 2, 4 and 5 as Directors and removal of the other Directors viz. the plaintiff No. 1, 2 and 3 before the Registrar of Company, West Bengal was cancelled. However, the other reliefs which the plaintiffs claimed by way of perpetual injunction were not granted by the learned Trial Judge in the said suit.;