BHAGWANJI MORARJI GOCULDAS Vs. ALEMBIC CHEMICAL WORKS CO LTD

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Chagla dated December 16, 1942. The appellant's claim is based on an agreement dated December 7, 1907, which in draft form was annexed to the memorandum and articles of association of the respondent company, which was incorporated on July 30, 1907. Mention of the agreement then in draft is to be found in Clause 6 of the memorandum of association of the respondent company, which commences as follows : The members who at present constitute, or who may hereafter constitute the firm of Messrs. Kotibhasker, Amin & Co., are hereby appointed secretaries, treasurers and agents of the company upon the terms contained in the agreement annexed to the articles of association and it is hereby expressly provided that, in consideration of the services rendered by them in promoting the company after first establishing the practicability of the industry by actually starting tentative factories, the appointment of the said firm as secretaries, treasurers and agents of the company shall not be liable at any time hereafter to be revoked or cancelled on any ground or for any reason whatever, save and except their being found guilty of fraud in the management and discharge of their duties as such secretaries, treasurers and agents. And the clause proceeds to lay down the rates of remuneration which the firm are to receive.

(2.) By the said agreement four named persons, A S. Kotibhasker, B.D. Amin, K. T. Gajjar (then a minor) by his guardian T. K. Gajjar and M. B. Bhatavdekar, parties of the second part, described as all of Bombay, and carrying on business there under the name and firm of Messrs. Kotibhasker, Amin & Co., promise and agree on behalf of themselves and each of them and tht members or member of the said firm of Messrs. Kotibhasker, Amin & Co. for the time being, thereinafter referred to as "the said firm," to and with the respondent company as follows : (1) That the said Anant Shridhar Kotibhasker, Bhailal Dajibhai Amin, Krishnalal Tribhowandas Gujjar and Moreshwar Bhalchandra Bhatavadekar or the members or member of the said firm for the time being will faithfully and to the best of their and his ability perform the offices of secretaries, treasurers and agents of the said company, for the purposte of carrying on to the best advantage the (sic) of the said company, as long as the said company and the said firm shall continue to carry on their respective business at the remuneration, upon the terras, and subject to the conditions, hereinafter particularly mentioned and described. (2) In consideration of the agreement hereinbefore contained on the part of the said firm, and in further consideration of the said firm, having promoted the said company, the said company hereby promise and agree with the said firm and its members or member for the time being, that the said firm shall be employed as, and shall be the secretaries, treasurers and agents of the said company as long as the said firm; and the said company shall exists and continue to carry on business either in the present or any other name, and that such appointment shall not be liable to be at any time revoked or cancelled on any ground or for any reason whatever, save and except their being found guilty of fraud in the management and discharge of their duties as Such secretaries, treasurers and agents; and the said company doth hereby for itself and its successors covenant with the. said Anant Shridhar Kotibhaskar, Bhailal Dajibhai Amin, Krishnalal Tribhowandas Gajjar and Moreshwar Bhalchandra Bhatavdekar and the said firm severally and jointly that the said company shall from time to time when the constitution of the said firm changes by death, retirement, admission of any new partner or otherwise enter into a fresh agreement, if necessary, with the said firm and the partner or partners therein in the terms in these presents contained. Provided that the appointment of the said firm as such secretaries, treasurers and agents shall forthwith cease and determine in the event of the company going into liquidation except for the purpose of reconstruction.

(3.) And by clause 8- The said firm may at any time during the continuance of this agreement, subject to the approval of the board of directors1, transfer to any fit and proper person or persons all the interest of the said firm under this agreement.