KAILASH CHANDRA DUTT Vs. JOGESH CHANDRA MAJUMDAR

JUDGEMENT

(1.) This is an appeal by defendant 2 one of the directors of a limited company at Cachar. The suit out of which this appeal arises was by one of the share-holders. The learned Judge states the facts as follows : There is an Insurance Company with a registered office at Silchar. This company, has a capital of over a lakh of Rupees, and according to the opinion of the learned Judge everything does not appear to have gone on well with this company and internal faction has been causing a good deal of trouble. The directors of the company were elected in 1921. According to the Articles of Association of the company the directors are to be elected annually. A general meeting was convened on 22 June, 1922 at, which among other things it was proposed to elect new directors. Before the election of the directors was completed the meeting came to an end and, therefore, there was no general meeting for election of directors. The old directors apparently continued to act, and the present suit was brought for a declaration that the directors elected in 1921 were no longer the directors, of the company and that all acts done by them were illegal and void. The Subordinate Judge made the declaration asked for. The defendants appealed and the learned Judge has affirmed the decision of the Subordinate Judge.

(2.) The first question that arises in this case is whether such a suit for declaration is maintainable under the provisions of Section 42, Specific Relief Act. There cannot be any doubt that in order to obtain a declaratory decree the plaintiff must bring his suit within the provisions of Section 42, Specific Relief Act. With regard to the question of declaratory decree it is useful to refer to the observations of Sir Lawrence Jenkins, C.J., in the case of Deokali Koer V/s. Kedar Nath [1912] 39 Cal. 704. At p. 708, the learned Chief Justice says with reference to Section 42, Specific Relief Act as follows: It is in this section (apart from particular legislative sanction) that the law as to merely declaratory decrees applicable in the circumstances of this case is now to be found. The terms of the section are not a precise reproduction of the provision contained in the Act of 1859 and the English law; in one direction they are more comprehensive, in another more limited. It is a common tradition that the section was designed to be a substantial reproduction of the Scotch action of Declavator, but whether this be so or not is of no great moment. We have to be guided by its provisions as they are expressed. The section does not sanction every form of declaration, but only a declaration that the plaintiff is "entitled to any legal character or to any right as to any property"; it is the disregard of this that accounts for the multiform and at times, eccentric declarations which find a place in Indian plaints. If the Courts were astute as I think they should be to see the plaints presented conformed to the terms of Section 42, the difficulties that are to be found in this class of cases, would no longer arise. Nor would plaintiffs be unduly hampered if the provisions of Section 42 were enforced, for it would be easy to frame a declaration in such terms as would comply with the provisions of the section where the claim was one within its policy.

(3.) Sir Lawrence Jenkins when a member of the Judicial Committee again observed in delivering the Judgment of the Judicial Committee in Sheo Parson Singh V/s. Ram Nandan Prasad 1916, P.C. 78 at p 97 (of 43 I.A.) as follows: The Court's power to make a declaration without more is derived from Section 42, Specific Relief Act, and regard must therefore be had to its precise terms.