KAILASH NATH ROY Vs. BENGAL BONDED WAREHOUSE ASSOCIATION

JUDGEMENT

(1.) THE petitioners Kailash Nath Roy, Kaushik Roy, Indira Roy, Aloke Nath Roy and Anjali Roy together moved this petition under section 397/ 398 of the Companies Act, 1956 ('the Act') against the respondents on the ground of oppression and mismanagement alleging that the respondents 2 to 5 acting prejudicial to the interest of the petitioners and the company as well. As the petitioners' counsel Mr. Reetobrata Mitra moved this petition for interim reliefs, Mr. S.N. Mookerjee, senior counsel appearing on behalf of the respondents raised a preliminary objection stating that the petitioners in this petition are short of requisite shareholding that is required under section 399 of the Act to invoke jurisdiction under section 397/ 398 of the Act, thereby he sought for the dismissal of this petition at the very threshold itself.

(2.) LEARNED senior counsel Mr. S.N. Mookerjee, representing the respondents, argued that the averments of the petition indicate that these petitioners together holding only 10.005 per cent in the company showing first petitioner shareholding as 8.72 per cent out of 10.005 per cent shareholding in the company. However, the fact is that the shareholding held by first petitioner is a joint shareholding held along with R -2 and R -5 as revealed in the annual return (Annexure 28 -p. Nos. 143 and 145 of this petition), so that it cannot be construed as exclusive shareholding held by 1st petitioner. Since subsections (1) and (2) of section 399 envisage that 10 per cent shareholding is a requisite qualification to invoke jurisdiction under section 397/ 398 of the Act, as these petitioners do not have exclusive shareholding of 10 per cent as envisaged under section 397/ 398, this petition is not maintainable in the eye of law, hence, to be dismissed.

(3.) TO which senior counsel Mr. Mookerjee argued that the ratio held in those cases are not applicable in the present case because in Gwalior Sugar case (supra), the petitioner Mrs. Nini Srivastava is a trustee to J.K. Srivastava & Sons (P.) Ltd. representing the interest of the trust to which she has been authorised by the other co -trustees. In that situation, hon'ble Supreme Court held that as and when any authorisation has been there from co -trustees permitting the trustee to move proceedings, her right to invoke jurisdiction under section 397/ 398 could not be turned down saying that she has no authority to invoke jurisdiction under section 397/ 398 of the Act. The main issue in that case is whether Mrs. Nini Srivastava before Company Law Board ('CLB') represents the trustees or not. Hence, it is not applicable in the present case.