R.S. Narula, J. - (1.) THIS is an application of six members of the Rohtak Krishna Trading Company Ltd. (hereinafter called the Company) for directing the Company not to hold its annual general meeting on November 8, 1971 (today) This application has been made in the course of the trial of C.O. No 89 of 1971, which has been filed by the same petitioners against the Company and its six office bearers under sections 397, 398 and 399 of the Companies Act, 1953 (hereinafter called the Act) for setting aside the allotment of certain shares, for staying the holding of the annual general meeting of the Company and to direct an amendment in Article 79 of the Articles of Association of the Company, and for other ancillary reliefs. The annual general meeting of the Company was fixed for September 30, 1971. L.M. No. 119 of 1971 dated September 14, 1971, had been originally filed by the petitioners for restraining the respondents from holding the general meeting of the Company which had originally been fixed for September 30, 1971, on various grounds. One of those grounds was that the date fixed for the meeting being a bank holiday under the Negotiable Instruments Act, the meeting could not be permitted to be held on that date. On September 29, 1971, the learned senior counsel appearing for the Company stated that the annual general meeting would not be held on September 30, 1971 (because of its being a bank holiday) and that a fresh date of the general meeting would be fixed by the Directors for which fresh notices would be issued to the members in accordance with law In view of the situation created by the above -mentioned statement of the Learned Counsel for the Company, it was considered unnecessary by me to deal with the other points raised by the petitioners on the basis of which it had been argued that the meeting should not be held at all. L.M. No. 119 of 1971 was, therefore, dismissed by me as infructuous, but without any order as to costs, on September 29, 1971.
(2.) NOTICES dated October 12, 1971, were then issued by the Directors for holding the annual general meeting of the Company on November 8, 1971, at 2 P.M. On November 1, 1971, the present application was then filed. The only ground on which the prayer, for staying the holding of the meeting has been pressed is that Article 79 of the Articles of Association of the Company, which reads as follows, is ultra vires section 87(1)(b) of the Act: - 79. No share -holder other than a trading member, or his or its authorised representative shall be entitled to vote in respect of any matter placed before the Company at any General Meeting in which by reason of their functional interests only the Trading Members are actually interested. Every share holder shall have one vote whether on a show of hands or at poll, irrespective of the share held by him except the Chairman who shall have, in addition, a casting vote. Section 87(1) of the Act provides - Voting rights. (1) Subject to the provisions section 89 and sub -section (2) of section 92 - (a) every member of a company limited by shares and holding any equity share capital therein shall have a right to vote, in respect of such capital, on every resolution placed before the Company; and (b) his voting right on a poll shall be in proportion to his share of the paid up equity capital of the Company. The rest of that section is not relevant for our purposes, nor are the provisions of sections 89 and 92 of the Act material for deciding this case.
(3.) THE argument of Mr. Bhagirath Dass is that whereas section 87(1)(b) of the Act confers on every member of the Company the voting right in proportion to his share of the paid up equity capital of the Company in case of a poll, Article 79 of the Articles of Association of the Company talus away substantial part of that statutory right of the members of the Company by giving every share -holder only one vote irrespective of this holding in the Company. In reply to this argument. Mr. Anand Sarup, learned senior counsel for the Company, has invited my attention to section 9A(1)(d) of the Forward Contracts (Regulation) Act, 1952 (hereinafter called the Regulation Act), which reads as under: - 9A(1): A recognised association may make rules or amend any rules made by it to provide for all or any of the following matters, namely, - (a) x x x (b) x x x (c) x x x (d) the regulation of voting rights in respect of any matter placed before the association at any meeting so that each member may be entitled to have one vote only, irrespective of his share of the paid -up equity capital of the association. (e) x x x (f) x x x (g) x x x;