- (1.) THIS is an application under section 397. 398 etc. of the Companies Act, 1956 for appointment of a Special officer and/or Administrator and/or receiver to carry on management of the respondent No. 1 Brahmaputra Fertilisers and Distributors (Private) Limited, hereinafter' referred to as the Company and for various orders restraining the Respondent Nos. 2 to 5 from acting as Directors for investigation and for various ether orders which are usual in these type of applications.
(2.) THE facts of this case is very interesting and clearly show how companies are being formed for utilizing official positions, permits for essential commodities, to serve as a source of additional income for persons in position under the garb of a mere share-holder and apparent innocence and absence in the company's affairs on the records and asking the Court to ignore ordinary human nature or character and to suspend common sense and experience to examine the facts and circumstances of a case and to rely solely on technical law of pleading and apply the literal meaning of the statutes and various authorities and decisions of Courts dealing with the principles regarding 397, 398 applications and principles analogous thereto. Although the matter is really confined to very short campus, it was argued at length, which to my mind appeared to be mostly unnecessary and has been advanced solely for the purpose of diverting the Court's mind from the real issue and the undisputed facts in the background of the nature of the business for which the company was incorporated and how it was conducted and the obvious purpose and intention of the so-called share-holders and particularly the Respondent No. 5, pratap Kumar Sen Gupta. The petition is of frightening volume containing about 160 pages of annexure being the correspondence showing the background in which the company came into existence and the "brain Power" behind the control. In order to appreciate the said correspondence, it should be noticed that the nick name of the persons which have been used in the correspondence only to show that the promoters of the company were close relations and hailed from the same part of the country and was very much intimate with each other without any apprehension at the beginning of being deprived or deceived by each other. Here, the petitioner's nick name is Nasu, the Respondent No 5, pratap Kumar Sen Gupta's nick name is "habul" and Abhrangsu Sen Gupta, the younger brother of the petitioner is called as "haru". It is not necessary for me to go into such voluminous correspondence but it is sufficient to note that the company was incorporated on the 19th of February, 1959, and a few "tell tale" correspondence crystallizing the desire, intention and purpose of promotion, formation and inception of the company. These letters are dated the 21st of december, 1957, 19th of July, 1958, 29th of July, 1958, two letters of 5th of November, 1958, 5th of December, 1958, 13th of December 1958, 15th of december, 1958, 2nd of February, 1959, and 3rd of May, 1971. Those letters are set out hereunder and they are at pages 121, 124, 99, 104, 126, 105, 107, 109, 129 and 154 of the petition. [letters are not printed-Ed. ]
(3.) I have set out some of those correspondence only with a view to give the background in which the company has come into existence, that is originally Brahmaputra Fertilisers and distributors, hereinafter referred to as the said "firm", was a partnership in which the petitioner and his brother, abhrangsu Sengupta, the Respondent no. 6, were the partners. The said firm used to carry on business as agents and sellers of fertilisers mainly in Assam. It was registered in the State of Assam at Shil-long on the 3rd of March, 1956, and both the petitioners and his brother, the two partners of the said firm were residents of Assam. In the year 1956, the said firm was appointed by the Government of India as distributors of fertilisers to the Tea Industries in North East India. As most of the tea Company had their registered office at Calcutta or managed by managing agents who had their offices at Calcutta, both the partners of the said firm being residents of Assam found it difficult to carry on the said firm's business activities in Calcutta. It is alleged that the Respondent No. 5, P. K. Sen Gupta, who was known to the petitioner from his student life, was then a responsible and influential government officer in the State of West Bengal, offered to render his assistance to the said firm in his activities at Calcutta. It is further alleged that from the beginning of the said business of the partnership firm at Calcutta, the Respondent no. 5, looked after the same and initially an office was opened at Calcutta which was originally at No. 34, ganesh Chandra Avenue, and thereafter, shifted at No. 2, Church Lane, calcutta. It is further alleged that on the recommendation of the Respondent no. 5, various persons who are now deceased were appointed managers at the Calcutta office and later on, the respondent No. 3, Arun Gopal Bagchi, was introduced by Respondent No. 5, to look after the affairs of the said firm at Calcutta and the over-all control of the said firm at Calcutta rested with the respondent No. 5. It is further alleged that the petitioner and his brother only two partners of the firm, had implicit faith and confidence in Respondent No. 5 and they were very intimate with each other so as to correspondence and call each other in their respective nick name which has been set out before.;