DESCON LTD. Vs. BIMAN BEHARI SEN AND ORS.

JUDGEMENT

(1.) This is an appeal from the order of the Company Law Board made on March 30, 2010 (Biman Behari Sen v/s. DESCON Ltd. (No. 1) (2011) 162 Comp Cas 611). It held in that order that the supporters of the Applicants before them were more than the required number necessary under Sec. 399 of the Companies Act, 1956 ("the Act") to support their application under Ss. 397 and 398 of the Act. The Appellant submits that such support was not there and the Board ought to have dismissed the main proceedings and allowed their application in this behalf.

(2.) Any shareholder cannot maintain a proceeding under Ss. 397 and 398 of the Act. Sec. 399, inter alia, enacts that 100 or one -tenth of the total number of members of a company whichever is less have the right to apply under Ss. 397 and 398. Any member or members holding not less than one -tenth of the issued share capital can also apply. Sec. 399(3) permits any member with the support of others, adding to make the required number of shareholders, to make the application.

(3.) Here it is common ground that the Applicants and their supporters have only 4.73 per cent, shares in the Appellant -company. So they do not fall within the alternative requirement.