B.C.Mitra, J. - (1.) The appellants made an application under Sections 397, 398 and 402 of the Companies Act, 1956 (hereinafter referred to as "the Act "). The company, in regard to whose affairs this application was made is Calcutta Landing and Shipping Company Ltd. (respondent No. 1). The main business of the company was shipping, landing and carrying of cargo. The four appellants hold among them more than 1/10th of the issued share capital of the respondent No. 1. Gladstone Lyall and Company Ltd. were appointed managing agent of respondent No. 1 on or about August 16, 1960, and held 19,705 shares in the capital of the company. Various charges of mismanagement, manipulation of dividend, misfeasance and oppression were laid in the petition. The application was dismissed by a judgement and order dated September 21, 1962, and hence this appeal.
(2.) In the court below various allegations against management of respondent No. 1 and also various charges laid in the petition were canvassed, but in this appeal Mr. S. Sen, learned counsel for the appellants, pressed some of the charges only, though he did not abandon or give up the points arising out of the other charges.
(3.) The first contention urged before us was that the dividend declared on the equity share capital of the company was manipulated in order to depress the market value of the shares to enable the directors of the company to acquire shares at an under-value. It was contended that the assets of the company were secreted and a profit, smaller than what was actually made, was shown in order to reduce the dividend. A chart was handed over to us, in which figures under various heads were collected, and it was argued that, although in the years 1957, 1958 and 1959, the gross boat hire varied within very small limits, there was a large fluctuation in the dividend declared, inasmuch as in 1957 the dividend was 15 per cent., but in 1958 it was reduced to 7 1/2 per cent. and in 1959 to 3 per cent. Although this point was canvassed before us, there is nothing in the petition with regard to fluctuation in the dividend declared in the years 1957, 1958 and 1959 nor was this point urged in the court below. The only point relating to fluctuation in the dividend declared which was argued in the court below is to be found in paragraph 26 of the petition in which it is said that for the year ending October 31, 1962, the company increased its dividend from 7 1/2 per cent. to 22 per cent. This being the only contention relating to dividend, the first contention regarding fluctuation in the dividend declared in the years 1957, 1958 and 1959 cannot be entertained by us. I shall now proceed to deal with the second contention relating to dividend, namely, increase from 7 1/2 per cent. to 22 per cent.;