RAJAMMAL Vs. UNION TILE WORKS P LTD

JUDGEMENT

(1.) This is a petition filed under S.397 and 398 of the Companies Act, 1956, filed before the Companies Tribunal, New Delhi and transferred to this Court. Application 208 of 1967 for hearing issues 1 and 2 as preliminary issues was allowed by me. In pursuance to that order the case came up for hearing on issues 1 and 2 on 6-6-1968 and I heard the counsel on both sides. Issuess 1 and 2 read as follows:

(2.) The petitioner claims to be a shareholder holding 75 shares in the company. The nominal capital of the company is one lakh of rupees divided into 1000 ordinary shares of Rs. 100/- each. The paid up capital is Rs. 90,200/-. The petitioner alleges that she has obtained the consent in writing of members holding 325 shares among themselves. The letter of consent which is annexed to the petition is marked Ext. P1. The first respondent in the counter affidavit filed disputes the genuineness of the signature of Mrs. Ammal Kumar who is alleged to be a signatory to Ex. P1. It is also stated by the 1st respondent that the shareholders mentioned in Ext. P1 have not paid the sums due from them to the company on their shares and are therefore not competent to maintain the petition. The trial of the petition has not yet started and the parties have not adduced their evidence. The questions whether the signature of Mrs. Ammal Kumar in Ext. P1 is genuine and whether the petitioner and the other shareholders who are parties to Ext. P1 are liable to pay any amount due on their shares to the company cannot therefore be decided now. I make it clear that the sustainability of the petition based upon these factual matters is reserved and will be considered after the evidence is adduced on all the issues. A purely legal bar raised to the maintainability of the petition and which the learned counsel for the respondents wanted consideration at this stage was based on S.399 of the Companies Act and it is therefore necessary to extract the said provision: