N.V.R Nagappa Chetti... v. The Madras Race Club...

This appeal arises out of an action by the members of the Madras Race Club. The action was tried on the Original Side by Bell, J., and by his judgment he dismissed the suit of the plaintiffs. Hence this appeal by the plaintiffs.

The Madras Race Club is a body corporate registered under the Indian Companies Act of 1913 before it was amended in 1936. The object of the Club, as its name indicates, is to carry on the business of a race club and to provide certain amenities to its members. The Memorandum of Association and the Articles of Association are contained in Exhibit P-29. The Memorandum of Association prohibits the division of profits by way of dividend amongst the members, and they have to be utilised only for the purpose of the club. There are two classes of members, namely, club members and stand members. There are about 260 club members, and they alone are entitled to vote, while the stand members have certain other privileges but not the right to vote. The management of the business of the Club is vested in six Stewards who must be club members. They occupy the position of the directors of a company and discharge similar functions in respect of the Club. The Articles provide as usual for the qualification for Stewards, for their retirement by rotation, filling up of vacancies, and also their powers and duties. After every annual general meeting of the Club the senior Steward is elected at the first meeting of the Stewards, who is to preside at every meeting of the Stewards. The quorum for a meeting of the Stewards is fixed at three. They are charged with the duty of calling for a general meeting annually and also, on the requisition of a prescribed number of members, calling for an extraordinary general meeting for special business. Article 50 prescribes the period of notice and the manner of issuing the notice for a general meeting. The senior Steward also presides as chairman at a general meeting. Article 73 lays down the manner of serving notices on members. After the Companies Amending Act of 1936 was passed the Articles of this Club were also amended in 1941, and Exhibit P-29 contains the Articles which were in force in 1947.

Sometime in April 1947, 45 members of the Club sent a requisition to the Club for convening an extraordinary general meeting, inter alia, to appoint a committee to consider the revision of the Articles of Association and to suggest changes wherever necessary. (Exhibit P-1). In pursuance of this an extraordinary general meeting was duly held on the 21st of June 1947, and in that meeting a special committee of seven members besides the Stewards, who were ex officio members thereof was constituted for the specific purpose of the revision of the Articles of Association and the suggestion of changes. They were required to submit a report on that behalf by the end of September 1947, and it was also decided that a meeting of the general body should be called for not later than 31st of October 1947 for the consideration of the report. The special committee had several sittings, and in the meeting of the 13th of September 1947 they proposed several alterations to the Articles, the most important of which were that the management of the business of the Club should vest in a Managing Committee of 12 members instead of the Stewards, and that from among the members of the Managing Committee a senior Steward and five other Stewards should be elected, who should be solely responsible for the racing. They also recommended the abolition of the proxy system of voting. Under a license granted by the Central Government under S. 26(2) of the Indian Companies Act, 1913, the Club was permitted to be registered as a company with a limited liability without the addition of the word “Limited” to its name. The Provincial Government on whom the duty of issuing licenses subsequently devolved framed regulations under the said section governing the issue of licenses. (Vide Development Department Notification, Fort St. George, March 6th, 1937, G.O No. 549). Under Cl. 8 of this Notification.

“If the Memorandum and Articles of Association are altered without the previous approval of the Government having been obtained in that behalf the license granted by the Government shall be deemed to have become void.”

In view of this requirement the special committee directed the solicitors of the Club to draft the necessary resolutions in proper form altering the Articles of Association in the manner suggested, and at a subsequent meeting of the 26th of September 1947 in which some more alterations were suggested, the club's solicitors were also requested to further revise the draft and send it to the Government for approval. The Solicitors sent the revised draft to the Government on the 29th of September 1947 (Ex. P-5). On the 11th of October 1947 the Government approved the revised Articles of Association proposed by the Club but with one modification relating to Article 69. The Government also pointed out that revised Articles of Association should be adopted by passing a special resolution under S. 81(2) of the Indian Companies Act. S. 20 of the Indian Companies Act also requires a special resolution to alter or add to the existing Articles. On the 15th of October 1947 the special committee at its meeting considered the order of the Government and resolved that an extraordinary general meeting of the members be convened on the 7th of November 1947 at 6.30 p.m to consider the report and pass a special resolution and requested the Solicitor, Mr. Small, to draft the resolutions. The committee was adjourned to meet again at 5 p.m on 7-11-1947, (P-1). At this meeting of the special committee were present nine members of whom one was the senior Steward, Mr. Annamalai Chetti, and two Stewards. On the 16th of October notice was issued to the Club members of the extraordinary general meeting on the 7th of November 1947 at 6-30 pm. The contents of this notice P-8 are material for the decision of this case, and therefore it is necessary to set them out in extenso:

‘Notice is hereby given that an Extraordinary General Meeting of Club members of the Madras Race Club will be held at the members' Stand of the Club at Guindy, on Friday the 7th day of November 1947 at 6-30 O' clock in the evening for the following purposes:

(1) To receive the report of the Chairman of the Special Committee constituted to revise the Articles of Association of the Club and to suggest developments of the club's present amenities;

(2) To consider and, if though fit, to pass as a Special Resolution. That the Articles in the printed document submitted to the Meeting and for the purpose of identification subscribed by the Chairman thereof be approved, with or without modification and adopted as the Articles of Association of the Club in substitution for and to the exclusion of all the existing Articles of Association thereof:

(3) If the said Special Resolution be duly passed then to elect twelve Club Members as the first Managing Committee of the Club, to hold office until the Annual General Meeting of Club Members to be held in November 1948; and

(4) To consider the Special Committee's following proposals for development of the Club's amenities and to give directions to the Managing Committee thereon:—

(a) That the present Lunch Room be furnished suitably to serve as a Lounge for Club Members;

(b) That the northern corner of the verandah adjoining the Lunch room be equipped to serve as a Card Room for Club Members;

(c) That the present Billiards Room be reserved for use only by Club Members when a separate Recreation Room can be provided for Trainers and Jockeys; and

(d) That arrangement be made to serve Refreshments also.

N.B (1) A print of the proposed amended Articles of Association will follow shortly.

(2) Each nomination of a Club Member as a candidate for election to the Managing Committee should be signed by two Club Members and sent to the Secretary fourteen clear days before the date of meeting”.

This notice, it is common ground, was posted at Guindy on the 16th October. About the same time notice of the annual general meeting of the Club fixed to 18th November 1947 was also issued to the members. The extraordinary general meeting was also advertised in the Hindu of 18th October 1947 (Ex. P. 10) and the Madras Mail of even date (Exhibit P-11). In pursuance of the notice, Exhibit P-8, the Club received 24 nominations for the Managing Committee which was communicated to the members by notice dated 27th October 1947 (Exhibit P-12). By 29th October 1947 the Club received notice of amendments to the Articles of Association from Messrs. T.T Krishnamachari, G. Narasimhan, A.R Srinivasan and the Rajah of Vizianagaram, and these were notified to the members by a notice of 29th October 1947, (Exhibit P-13). On the 21st of October 1947 (it is admitted before us by both sides, though there is no evidence regarding it) the Club sent the printed draft of the proposed amendments to the Articles of Association, Exhibit P-30, to all the members. On the 5th of November 1947 the Government of Madras suggested that the Articles of Association might be suitably amended to eliminate voting by proxy and to delete Articles 55, 56, and 57 altogether with a view to make the members of the Race Club take full responsibility for the proper conduct of racing. In the light of this suggestion the Government wanted a fresh draft on these lines, or alternatively that the existing Articles suitably altered and approved by the general body be submitted to them through the Registrar of Joint Stock Companies, Madras, for approval before “it is finalised”. At 5 p.m on the 7th November 1947 the special committee met and considered the proposal of the Government. They passed at that meeting two resolutions:

“(1) Resolved that the letter be placed before the General Body Meeting to be held at 6-30 p.m with the recommendation that the suggestion of the Government be accepted; and

(2) Resolved also that this Committee recommends that the spirit of the letter of the Government of Madras be observed by refraining from using proxies at today's meeting and subsequent meeting as well as the Annual General Body Meeting”.

These resolutions were passed, one member Mr. Annamalai Chettiar dissenting. The extraordinary general body meeting was held on the 7th November 1947 at 6-30 p.m which was presided over by Mr. P. Natesan as the senior Steward, Mr. Annamalai Chettiar expressing his unwillingness to take the chair. What exactly happened at that meeting is a matter of serious controversy between the parties, and the fate of this case mostly depends upon our decision on this point. What purported to be the proceedings of the meeting of the 7th November were communicated by the Club to the members, and the plaintiffs filed the communication received by them, which is marked as Exhibit P-18. The solicitors of the Club by their letter of 10th November 1947 communicated to the Registrar of Joint Stock Companies the proposed revised Articles which, it was alleged, were adopted at the meeting of the 7th November. The Registrar of Joint Stock Companies through a telephonic message of 14th of November 1947 asked the solicitors whether the revised set of Articles was adopted by a special resolution at the meeting of the 7th, and that, if so, a copy of the resolution and a copy of the notice convening the meeting should be sent to him for reference. It was also pointed out by the Registrar that if the Articles were adopted by a special resolution, prior sanction of the Government ought to have been obtained and the Government might have to be addressed to condone the omission. To this the solicitors replied by their letter of 15th November 1947 pointing out that there was no such necessity. The general meeting was held on the 18th at which some formal business was transacted, and the members were informed that there was no necessity to elect the stewards as at the first meeting of the Managing Committee held on the 10th of November 1947 Mr. P. Natesan was elected Chairman and five persons were elected as Stewards. Mr. Annamalai Chettiar wrote to the Registrar of Joint Stock Companies on the 18th (Exhibit P-20) that the proposed special resolution had not been put to the meeting at all by the Chairman, Mr. Natesan, on the 7th of November 1947 and that it had not been passed by the requisite statutory majority. The present plaintiffs issued through their lawyers a notice to the Club questioning the legality of the meeting of the 7th November and of the election of the members of the Managing Committee on that date on the grounds elaborately specified in that notice including the fundamental objection that the special resolution was not moved or put before the meeting and was not voted upon. The notice demanded the Managing Committee to accept the invalidity of the proceedings of the meeting of 7th November failing which it was intimated a suit would be instituted for appropriate reliefs. The reply of the Club is Ex. P-23 dated 25th of November 1947 and was sent through their solicitors. In this the allegations in the notice, Ex. P-21 were denied.

This was followed by the present suit which was filed on the 8th of December 1947 by two members of the Club for themselves and on behalf of the other members of the Club other than those who were originally impleaded as defendants in the suit after obtaining the necessary permission under O. 1 R. 8 C.P.C The first defendant is the Race Club. Defendants 2 to 13 are members of the Club who were elected as members of the Managing Committee. The suit was originally filed impleading only defendants 1 to 13. Defendants 14 to 90 who are some of the other members of the Club were impleaded as parties at their own request, as they wanted publicly to dissociate themselves from the plaintiffs.

The main reliefs claimed in the plaint were: (1) a declaration that the meeting of the general body of the members of the Club held on the 7th November 1947 was invalid and void and that all business transacted thereat was invalid, null and void; (2) a declaration that the Managing Committee comprising defendants 2 to 13 purported to have been elected at the said meeting was not lawfully or validly elected and were not entitled to assume office; (3) a declaration that the proposed amended Articles have not been duly passed and are ineffective; (4) a declaration that the Stewards who were in office prior to 7th November 1947 still continue to be in office and are the persons legally and lawfully entitled to be in management and control of the Club, and (5) a declaration that the proceedings of the general meeting of the 18th of November 1947 are illegal, invalid and void. There is also a relief for an injunction against defendants 2 to 13.

The grounds on which the reliefs claimed in the plaint were sought to be sustained before us may be catalogued as follows: (1) The meeting of the 7th of November 1947 was not convened by the proper authority under the Articles, viz., the Stewards. (2) The notice of the meeting, Ex. P-8, which was posted on the 16th October 1947 contravened the provision of S. 81(2) of the Indian Companies Act as 21 days were not allowed between the date of the meeting and the receipt of the notice. (3) The notice of the meeting did not contain the necessary particulars as it did not comply with the requirement that the general nature of the business should be indicated in it, the proposed amended Articles of Association not having been sent along with the notice so as to give notice thereof of 21 clear days. (4) Item No. 2 in the agenda, the special resolution relating to the proposed amendment of the Articles was not moved or put before the meeting for being voted upon. (5) In any event even if the voting of 66 members at that meeting was in support of the special resolution, that did not constitute the statutory three-fourths majority of the members present, who numbered according to the plaintiffs 105. (6) The amendments moved were not within the scope and ambit of the original resolution and could not have been validly made. (7) The election of the 12 members of the Managing Committee was illegal as the notice regarding it was insufficient as regards the time and was also defective as the members were not informed of the qualifications and the functions of the Managing Committee before they were called upon to submit nominations. (8) The election of the entire Managing Committee was illegal, or in any event that of Mr. Natesan, was clearly illegal as he was disqualified to preside at the meeting, being himself a candidate for election to the Managing Committee. (9) If the meeting of 7th November 1947 was void, the annual general meeting of 18th November 1947 was equally void, as proxies were illegally excluded.

These charges are of course denied by defendants 2 to 8, 10, 12 and 13. In paragraph 5 of the written statement filed on behalf of the first defendant, the first defendant stated with reference to the allegations in paragraph 6 of the plaint that although 105 members signed the attendance sheet during the period of the meeting and 49 proxies were registered only 66 members were actually present at the time when the resolution to adopt the new Articles was put to vote. The other defendants 2 to 8, 10 and 12 and 13 filed a separate written statement practically adopting the written statement filed on behalf of the first defendant. Defendant 9 seems to have signed the written statement of defendants 2 to 8, 10, 12 and 13 but without looking into the written statement filed on behalf of the first defendant. Mr. Vijayaraghavan, the 9th defendant wanted to see the written statement of the first defendant before their written statement was actually filed into Court. For this purpose he wrote to his solicitors on the 10th of January 1948 communicating his intention to see the written statement of the first defendant before the written statement bearing his signature was actually put into Court. To this the reply of the solicitors dated 12th January 1948 was that their written statement was filed in Court on that day as Mr. Small was otherwise engaged that morning and that it was too late to withhold the filing of their written statement, Mr. Vijayaraghavan was informed that written statement signed by him merely adoption the written statement filed on behalf of the Club. On the 15th January 1948 Mr. Vijayaraghavan by his letter protested against this action of the solicitor and pointed out that, paragraph 5 of the first defendant's written statement was highly misleading and even incorrect. According to him, when the resolution was put to vote at the meeting 66 persons voted for, one member said he was neutral and about 30 to 35 other members did not vote either way. He pointed out that the statement in paragraph 5 of the written statement of the Club that only 67 members were present at that time was not true and that therefore he could not subscribe to it. After this protest when the written statement of defendants 2 to 8, 10, 12 and 13 was returned the solicitors scored out his name. Mr. Vijayaraghavan filed a separate written statement engaging another Counsel. Mr. Vijayaraghavan in his written statement denied the allegations in paragraph 5 of the written statement, reaffirmed the facts as stated in his letters and left other questions to be decided by the Court. Annamalai Chettiar also filed a separate written statement setting out his contention.

The learned Judge who tried the suit held that, though there were some irregularities at the meeting and though he was not prepared to accept in their entirety the contentions put forward by the Club relating to “waiver”, “estoppel” and the like the plaintiffs had failed to substantiate their contention on the material issues. He was of opinion that there was no illegality in the proceedings of the meeting of 7th November and that the special resolution was validly passed at that meeting. He characterised the action as a case of “a storm in a tea cup” and dismissed the plaintiffs' suit.

At the outset it is necessary to consider the question whether the suit as framed is maintainable. The action was brought by two plaintiffs who are members of the Club for themselves and also on behalf of the other members after obtaining the requisite leave under O. 1, R. 8 Civil Procedure Code. The learned Judge was of opinion that the suit was incompetent, as that is known as the rule in Foss v. Harbottle (1) applied to the case. The rule in Foss v. Harbottle is that a Court will not interfere with the ordinary management of a company acting within its powers and has no jurisdiction to do so at the instance of the shareholders. A share-holder is entitled to institute a suit to enforce his individual rights against the company such as his right to vote, or his right to stand as a director of a company at an election. If the shareholder however intends to obtain redress in respect of a wrong done to the company or to recover monies as damages alleged to be due to the Company, the action should ordinarily be brought by the company itself. In order therefore to enable a shareholder to institute a suit in the name of the Company, in such a case, there must be the sanction of the majority for corporate action. In ordinary cases therefore, this principle implies the supremacy of the will of the majority. It is open to a majority always to set right a thing which was done by the majority either illegally or irregularly, if the thing complained of was one which the majority of the Company were entitled to do legally and was within the powers of the company by calling a fresh meeting. That is the reason why in such cases the Court refuses to interfere at the instance of a shareholder even in a representative action brought by him. If the majority however acts in an oppressive manner, it is not as if the minority are without a remedy. This possibility was foreseen by Sir James Wigram, Vice-Chancellor who delivered the judgment in Foss v. Harbottle . At page 492 the Vice-Chancellory says:

“If a case should arise of injury to a corporation by some of its members, for which no adequate remedy remained, except that of a suit by individual corporators in their private characters, and asking in such character the protection of those rights to which in their corporate character they were entitled, I cannot but think that the principle so forcibly laid down by Lord Cottenham in Wallworth v. Holt (2) and other cases would apply, and the claims of justice would be found superior to any difficulties arising out of technical rules respecting the mode in which corporations are required to sue.”

In such a case where action by a shareholder is permitted, the plaintiffs would not have a larger right to relief than if the company itself were the plaintiff and are not entitled to complain of acts which are valid, if done with the consent of the majority of the shareholders or are capable of ratification by the majority.

The later decisions however have recognised exceptions to what is conveniently known as the rule in Foss v. Harbottle . James, L.J in Mac Dougall v. Gardiner (3) considered the rule and stated the exceptions in the following passage at page 21 which has since become classic:

“I think it is of the utmost importance in all these companies that the rule which is well known in this Court as the rules in Mozley v. Aslton (4) and Lord v. Copper Miners' Company (5) and Foss v. Harbottle should be always adhered to: that is to say, that nothing connected with internal disputes between the shareholders is to be made the subject of a bill by some one shareholder on behalf of himself and otters, unless there be something illegal, oppressive, or fraudulent—unless there is something ultra vires on the part of the company qua company or on the part of the majority of the company so that they are not fit persons to determine it: but that every litigation must be in the name of the company, if the company really desire it.”

From this it follows that a shareholder or shareholders are entitled to bring an action (1) in respect of matters which are ultra vires the company and which the majority of shareholders were incapable of sanctioning; [See Burland v. Earle (6)]; (2) where the act complained of constitutes a fraud on the minority, and (3) where the action of the majority is illegal. The decisions in Baillie v. Oriental Telephone and Electric Company Ltd., (7) and Cotter v. National Union of Seamen (8) recognised a fourth exception where a special resolution was required by the Articles of the Company and the company obtained the assent of the majority to such special resolution by a trick, or even where a company authorised to do a particular thing only by a special resolution does it without a special resolution duly passed as in such a case to deny a right of suit to the shareholders without using the name of the Company would in effect result, the company doing the thing by an ordinary resolution. In other words, this means that where a special resolution was improperly passed, if the rule that the company alone is the proper plaintiff to institute a suit questioning such resolution were to be enforced, the shareholders by a bare majority could defeat and prevent the majority from using the name of the Company. The result of such a course would be indirectly to uphold the validity of a special resolution which was otherwise invalid. To avoid this result this exception was recognised in the two decisions. The rule and the exceptions thereto are also staged in Palmer's Company Law, 17th Edition, at pages 236 and 237 and Halsbury's Laws of England (second edition) Vol. 5, page 445, paragraph 728. The appellants' learned Advocate placed before us the authorities bearing on the rule and the exceptions, and the respondents' learned Advocate did not challenge the position contended for by the appellant. It is needless to consider the authorities in detail as the substance of the decisions is as stated above.

The attempt of the learned Advocate for the appellants is to bring the present case under two exceptions, namely, that the acts complained of are illegal acts, and secondly that if the special resolution was not passed or was passed illegally the effect of applying the rule in Foss v. Harbottle to this case would be indirectly to sanction by an ordinary resolution that which the law requires to be passed only by a special resolution. For reasons, given below, in our Judgment the present suit falls within these two exceptions and that it is maintainable.

It will be convenient to deal first with the objection that the special resolution, item 2 in the agenda, was not put to the meeting and was not passed, for, this question goes to the root of the matter. If we find that no special resolution was passed at the meeting of 7-11-1947 the whole proceedings of that meeting fall to the ground. Section 20, Companies Act requires a special resolution to alter the articles. If there was no special resolution sanctioning the alteration, the action of the Club in altering the Articles without authority would be void and the alterations would have no legal effect. It is unfortunate that in this case notwithstanding the presence of the solicitor of the club, Mr. Small, at the proceedings of the meeting and notwithstanding the fact that the chairman of the meeting and the share-holders were men of status in life, there is no authentic record of the proceedings of the meeting. This has made our task more difficult. According to the pltfs., one and only one resolution was put before the meeting on that day, that is, resolution No. 1 of the special committee in Ex. P. 16, and that it was this resolution that was passed by 66 voting for, and one remaining neutral out of the members present. The pltfs. categorically asserted in the plaint that the special resolution (items in the agenda) was not put to the meeting and was not passed. This of course was denied by the defts. According to the version of the defts. the special resolution alone was put to the meeting, and it was in respect of that, that the counting of the votes took place and it was carried by 66 votes, one remaining neutral. According to both versions it would be clear from the evidence that there was only one counting of the votes at which it was found that 66 were in favour of the resolution, whether it was the resolution of the special committee that was put to the meeting or the special resolution itself. As regards the number of persons present at that sole count, there is also conflicting evidence.

Three documents have been marked in the case as containing a record of the proceedings of the meeting of the 7th November. Ex. P-17 is the report of the shorthand reporters present at the meeting and who took down the notes. Exs. P-17(a), P-17(b) and P-17(c) are the notes in short hand taken by them. They submitted to the Club a typewritten report in longhand, which is Ex. P-17. Ex. P-18 is a copy purporting to be the minutes of the meeting sent to the plaintiffs by the Club, and Ex. D-5 produced by the defendants is stated to be the record on the notes prepared by the chairman, Mr. Natesan, at the time of the meeting. Mr. Small, who is the solicitor for the defendants, was not able to say whether the Club had or had not maintained a minutes book of its meetings kept in the regular course. In the course of the arguments before us, the learned Advocate for the respondents, Mr. Nambiar, on a question put by us represented that there was a leather bound book in which the minutes of the meeting were regularly recorded and produced it before us; but as it was not produced or filed before the learned trial Judge, and as there was no request on behalf of the respondents to admit it in evidence appeal before us it was not received marked as an exhibit. Their lordships discussed the admissibility of Ex. P-5 and P-18 and held that they are inadmissible and proceeded. Exhibit D-5 was produced by the defendants as containing the minutes of the meeting. It was not included in the agreed bundle and was marked only subject to proof as is evident from the index prepared by the court clerk during the course of the trial. The plaintiffs did not admit its genuineness. The only evidence to prove this document was that of Mr. Small. According to him the document bears the signature of Mr. Natesan, and Exhibit D-5 is the notes taken by him at the meeting. He was not prepared to swear however that Exhibit D-5 was the notes which Mr. Natesan actually took, and he himself did not read it nor did Mr. Natesan. Mr. Natesan who was claimed to be the author of these notes was in Court at the time Mr. Small gave evidence. He was in the corridor, and Mr. Small said that he would come again after lunch time. Mr. Natesan, who was the chairman of the meeting, could have given very useful evidence on this as well as on most of the other matters in controversy, but for reasons best known to himself, Mr. Natesan did not choose to go into the witness-box and give evidence. This is a grave defect in the case of the defendants. The Secretary who was also in Court during the course of the trial did not enter the box and give evidence. As Mr. Natesan has not been examined, even though the signature on the document. Exhibit D-5, was proved by Mr. Small, it is impossible to act on Exhibit D-5 and accept it as the minutes of the meeting as contended by the respondents. Mr. Small describes it as “notes”. What is this Exhibit D-5? It is not regular minutes book of the Club, is only a ruled notebook in which two loose sheets on which Mr. Natesan is stated to have jotted down his notes were pasted. It is not explained why a new book which is really an apology for a minutes book was opened only for this meeting and for the succeeding general body meeting. An important scoring out in the first page of that book was not explained. According to this document, if we ignore the scoring, it would appear that the chairman put to the meeting the resolution proposed by the committee, (i.e) the special committee. After this there is the remark alleged to be in the handwriting of Mr. Natesan “Show of hands declared carried”. This was later scored out. The second page contains the statement that item 2 in the agenda, i.e, the special resolution together with the amendments proposed by Mr. Easwaran was put to the meeting and declared carried 66 voting for and one remaining neutral. It also contains the result of the election of the members of the Managing Committee.

The learned Counsel for the respondents contended that Ex. D-5 is the minutes book which contains a declaration by the chairman that the special resolution was carried and contains the signature of Mr. Natesan, and we must therefore presume under S. 83 of the Companies Act that it is a correct record of the proceedings and that the declaration is conclusive until the contrary is proved. We are not prepared to accept this as evidence of the minutes of the proceedings of the meeting of the 7th November. The contents of the document were not proved as Mr. Natesan was not called. Even according to the evidence of Mr. Small it is “notes” made by the chairman, though opinion they are minutes of the meeting. On 8th November, according to Mr. Small, himself, the Secretary and the Chairman of the Club looked through the draft report of the proceedings prepared by the Secretary and Ex. P-18 is a copy of that sent to the members. They themselves be it noted did not treat this as containing the minutes. Exhibit D-5 therefore is not evidence of the proceedings of the meeting, and the declaration contained therein cannot be treated as conclusive. The document is inadmissible in evidence, as Mr. Natesan was not called, and we have therefore no hesitation in rejecting it more especially as the scoring contained in it on a vital point remains unexplained.

Exhibit P-18 is equally inadmissible. It is a typewritten document and bears no signature, either of the chairman or the secretary, and does not even bear the endorsement that it is a true copy of an original. According to Mr. Small's evidence, himself, the chairman and the secretary sat down next evening and all the three put their heads together to consider the draft of the proceedings prepared by the Secretary and with their suggestions the chairman settled it. Typed copies of it were circulated to all the members. P-18 is one such copy sent to one of the plaintiffs. Exhibit P-18 itself does not purport to be a copy compared with any original and no original was produced in the suit. It is therefore difficult to see how Exhibit P-18 can be treated as secondary evidence. For these reasons Exhibit P-18 is wholly inadmissible in evidence and has to be rejected. The learned Advocate for the respondent expressly disclaims the benefit of S. 83 of the Company's Act, as applicable to P-18.

Exhibit P-17 however stands on a different footing. The plaintiffs insisted on the defendants producing the report of the shorthand writers who were engaged by the Club and paid out of its funds. After some hesitation the defendants produced Exhibit P-17, and curiously they themselves took objection to its admissibility. The learned Judged, we are told, gave a ruling that as it is an official record maintained by the Club it is not open to the defendants to object to its admissibility. The ruling however does not appear on record, but the learned Advocates appearing for the appellants and the respondents have admitted before us that there was a ruling by the learned Judge. We must therefore proceed on the footing that the learned Judge ruled that Exhibit P-17 is admissible in evidence, especially as it is a record of the proceedings emanating from the defendants themselves. Mr. Small in his evidence tried to impeach its accuracy in so far as it did not refer to the special resolution, but in other respects he admitted its accuracy. To what extent this Exhibit P. 17 helps the plaintiffs' case will be considered in due course. There is no reason to reject Ex. P-17 and exclude it from evidence.

We are therefore left with Exhibit P-17 and the oral evidence adduced by the parties on this question. It may be mentioned that it is common ground that at that meeting there was confusion and that there was a heated debate on the question whether voting by proxies should or should not be abolished. The meeting went on from 6-30 p.m beyond 10 p.m The plaintiffs examined three witnesses on their side to proves that only the resolution of the committee was put to the meeting and was carried and also to prove that the members present at the time of votingwere more than 67. P.W 1 Ramanathan Chettiar, who is a member of the Club, and who was also present at the meeting deposed in chief-examination that the recommendation of the Special Committee was put to vote and was carried, 66 voting for and one remaining neutral. He was at the meeting but did not vote for or against it. According to him there were about 20 or 22 persons who remained neutral at the time. In the cross-examination of this witness he was asked whether item 2 of the agenda was first moved by the chairman. The answer given by the witness was in the negative. To further question whether this resolution, meaning the special resolution, was read and moved by the chairman the witness stated that he was not able to remember. According to this witness, therefore, he was not definite whether the special resolution was put, but he was positive that the resolution of the committee was put to vote and carried by 66 voting for and one remaining neutral.

The next witness, P.W 2 in Mr. pattabhirama Rao, the son of a Zamindar, and an Advocate of this Court. He is also a member of the Club for over three years. He attended the meeting, and his evidence is that the resolution that was put to the meeting was about the proxies being used or not, and it was put from the chair. There was voting, and more than 20 remained neutral. He stated also that Exhibit P-17 contained a correct report of what he said at the meeting. No question was put to this witness in his cross-examination suggesting that the special resolution was put to the meeting and was carried. This is a very significant omission. He is a gentleman of considerable status in life and is an Advocate of this Court. There is no suggestion in the cross-examination that he was taking sides and that he was not an impartial witness. No reason is suggested why, if the case of the defendants is true, he was not cross-examined about the special resolution.

The next witness P.W 3 is Mr. R.M Sundaram, a member of the I.C.S who had put in 19 year of service and he is one of the defendants in the case. He deposed in chief-examination that there was considerable discussion about proxies at the meeting and that at the end of the discussion the proposition was put to vote. On a fair reading of the chief-examination it seems to us clear that the proposition referred to by him is the proposition relating to proxies, which was the subject-matter of the resolution by the special committee. According to him about 10 or 20 people remained neutral at the meeting. There was very little cross-examination of this witness by the defendants. He also is a very respectable witness and would have certainly stated so if really there was a special resolution which was put to the meeting and carried. He was not asked about it in the cross-examination by the learned Counsel for the defendants. It is urged that this omission was due to the fact that the plaintiffs themselves did not put the negative to the two witnesses, P.Ws 2 and 3, in the chief-examination. The burden of proving that a special resolution was passed at the meeting in the circumstances of this case when it was vehemently denied by the plaintiffs was certainly on the defendants. Of course if there had been a record of the minutes of the meeting as contemplated by S. 83 of the Indian Company's Act that would have helped the defendants and would have shifted the burden on to the plaintiffs to show that what was recorded was not true and accurate. In the absence of such record the burden lies heavily on the defendants to prove beyond doubt that the special resolution was moved at the meeting and carried by the required majority. In our opinion, the defendants did not dare to put the question to these witnesses, as they were not sure of their ground. This is the only natural inference possible in the circumstances of the case.

The evidence of P.Ws 1 to 3 is in consonance with the proceedings is reported in Exhibit P-17. Exhibit P-17 shows that there was a prolonged discussion regarding the letter of the Government and the abolition of proxies which was also the subject matter of the resolution of the special committee. At the end of the discussion the chairman moved from the chair the resolution of the special committee. After this Mr. Kothari moved an amendment that the meeting should be adjourned on the ground that the notice of the resolution was very short, and that the absentee members had no opportunity to consider the letter of the Government of Madras. This amendment again invoked discussion. Mr. Small intervened in the debate and pointed out that the members had notice already of an amendment in the matter of wiping off proxies and that there was no necessity to adjourn the matter further. He also gave his opinion that the recommendation of the Government was directive. Finally after some further discussion the resolution of Mr. Kothari to adjourn the matter was put to vote and the chairman declared that on a show of hands the resolution was lost. After this the chairman put to the meeting the resolution which had been recommended by the special committee, to vote, and according to Ex. P-17 on a show of hands it was declared duly carried, Mr. Eswara Aiyar then moved the amendment of which notice was given by Mr. T.T Krishnamachari and others in Ex. P-13, and they were also, duly carried. The meeting then proceeded to consider item 3 of the agenda, namely, the election of 12 members to, the Managing Committee. Here again one member suggested that the election might be postponed to some other date on the ground that the notice was insufficient. Mr. Small gave his opinion that as the new constitution was passed the election of the committee of management automatically followed. Mr. Albuquerque raised the point that as the new rules came into operation only on that day and as the nominations were proposed 14 days before the passing of the rule the nominations were invalid and requested a ruling from the chair whether they were valid. This was followed by some discussion, and finally the chairman gave the ruling that the nominations were entirely in order and proceeded with the election, and 12 members were declared elected. From this summary of the contents of Ex. P-17 it would be noticed that there is no statement in Ex. P-17 that item 2 in the agenda was ever put to the meeting and was voted upon. In the light of the evidence of P.Ws 1 to 3 there is no reason to assume that Ex. P-17 was an incomplete or inaccurate report of the proceedings of the meeting. Ex. P-17 therefore strongly probabilises the case of the plaintiffs that the special resolution was never put to the meeting.

The only evidence in support of the case of the defendants is the evidence of Mr. Small. According to him at the meeting the Chairman moved item 2 and actually repeated verbatim the resolution, and the resolution as amended was put to vote. There was a counting of votes in which himself and Mr. Rajan took part. The number of members actually present at the time of the voting was however not counted even according to him by anybody. Mr. Small's version however of what took place at that meeting as revealed by his cross-examination is not very convincing. He was confronted in the cross-examination by the statement in Ex. D-5 in the firs page. “The chairman put the resolution proposed by the Committee to vote.” His answer was “yes”. Then he was asked about the remark “Show of hands declared carried” which was however struck out. He was also prepared to concede that the resolution of the committee was put to vote by the chairman to the meeting. He however in answer to the question. “The Committee, I take it, means the Special Committee so that do you wish to say that it is not a correct statement?” stated:

“It is not correct. The explanation is that the Chairman was about to put to vote the special resolution and I amongst others drew his attention to the fact that Mr. Eswara Aiyar is proposing an amendment or amendments and we suggested that the amendments should come first. Some discussion followed and then the Chairman decided to put the resolution as set out in the notice of the meeting coupled with the amendments proposed by Mr. Eswara Aiyar. That was what was done.”

He makes it clear later on that the interruption was just at the moment when the chairman was actually putting to vote the resolution of the committee. If this is a correct version of what took place, what was the necessity for the chairman even before there was voting to note down in Ex. D-5 as admitted by Mr. Small, “Show of hands declared carried”, and then strike it out? There is no cogent or convincing explanation on behalf of the defendants for this statement in Ex. D-5. Mr. Natesan who was present in Court, if he had entered the witness-box, could have explained it, but he was not examined. According to Mr. Small the special committee's resolution was never disposed of by the meeting though the chairman put the resolution to the meeting for voting. This cannot possibly be correct and looks improbable. After a prolonged discussion on the subject of the abolition of proxies and a heated debate the chairman decided to put the special committee's resolution to the meeting. Having done that, is it likely and is it probable that the chairman would not have called the members present at the meeting to express their opinion by their votes on the resolution? The evidence of Mr. Small is directly contradicted by the disinterested and respectable witnesses examined on the plaintiff's side. This is a very material discrepancy between the evidence of the plaintiff's witnesses and the report or the shorthand-writers on the one hand and the evidence of Mr. Small on the other.

On the very important question as to the number of members present Mr. Small was not able to give a consistent version. In paragraph 5 of the written statement prepared by him—and he was also a member of the Club—we find the unambiguous statement that though 105 members signed the attendance sheet and 49 proxies were registered, at the time the special resolution was adopted only 67 members were actually present. Mr. Vijayaraghavan one of the members pointed out in Ex. P-25 that that statement was not true and that actually 66 people voted for the resolution, one was neutral and 30 to 35 other members did not vote either way but were present at the meeting. In reply to this Mr. Small asserted in Ex. P-27 dated 16th January 1948 that he was personally present at the extraordinary meeting of the Club along with the chairman of the Club who gave instructions for the preparation of the written statement and that they were unable to agree with the statement of Mr. Vijayaraghavan. When he came into the witness box he modified this version by admitting that besides 67 there were present at the time between 6 and 8 members who did not vote at all and certainly not more than 10 according to his observation. He was severely cross-examined on this point by the plaintiffs. In the first place his attention was drawn to Ex. P. 21, the notice issued on behalf of the plaintiffs, in which it was asserted by the plaintiffs that the attendance at the time of the meeting was 105 out of whom only 66 voted, and it was pointed to him that in the reply issued to that notice which was admittedly issued after consulting him there was no denial. He was then asked about the statement in the written statement of the first defendant in paragraph 5, and was asked whether the allegations in that paragraph were correct. His answer which is somewhat surprising was “It is a statement by deduction”. The questions put to him and the answers given by him after this statement are very interesting reading:—

“Q. Is if not correct as a statement?

A. It must be correct.

Q. You said the number of persons present at the time of the counting was between 73 and 78?

A. That was my observation.

Q. You say there were not more than ten over and above the 67 not voting at all but sitting in the room at the meeting?

A. Yes.

Q. According to your observation this is not a correct statement of fact?

A. All I can say is that this is a statement by deduction.

Q. It is a correct statement of fact according to you?

A. According to my observation, no.”

The answers clearly indicate that he did not correctly observe as to what transpired at the meeting. Having committed himself to a categorical statement in his reply to the letter of Mr. Vijayaraghavan that according to his observation only 67 were present at the time of the voting and in view of the unimpeachable evidence adduced by the plaintiffs that more persons were present, he felt uncomfortable in the witness-box and took shelter in drawing a metaphysical distinction between what he observed and what he deduced.

The position therefore is, on two very important matters Mr. Small's evidence is unconvincing and inaccurate. He himself admitted that there was confusion at the meeting and the meeting lasted from 6-30 p.m till 10 O'clock or thereafter and that members were going at intervals to the refreshment stall. It is doubtful whether even though he was present at the meeting throughout he observed correctly what transpired as admittedly there was confusion at the material time. There is no authentic record to evidence the passing of the special resolution by the general body. We are therefore unable to conclude from the evidence of Mr. Small alone that item 2 in the agenda, the special resolution, was put to the meeting and was declared carried by 66 voting in favour of the resolution.

All that the learned trial Judge says on this part of the case is that even though there was a lot of discussion and possibly some confusion at the meeting he was not prepared to believe that the members who met on that day for the purpose of bringing into being a new set of Articles forgot the main object for which they had met and that the meeting ended without anything having been effected. While no doubt this reasoning is not without force in ordinary circumstances, it must be remembered that circumstances were not really ordinary. The communication from Government received just before the meeting created a somewhat intriguing situation for the club members. The Government not only went back upon their previous approval of the new set of Articles recognising the use of proxies and recommended the abolition of the proxy system, but suggested two alternative courses of action for the meeting to pursue, one of which certainly envisaged the non-adoption of any set of new Articles at that meeting and the other somewhat ambiguously recommended only an ascertainment of the members, view with a view to the new Articles being finalised (whatever it may mean). It is nut surprising that there was not a little misapprehension at the meeting itself as to what exactly was the agenda to be considered. The chairman had crystallised the matter by moving a formal resolution that the first recommendation of the special committee be adopted. We cannot accept the view that this resolution was not disposed of but was, as it were left in the air. Even Mr. Small admits in his evidence that just at the material time there was some confusion and a misapprehension in the minds of some members as to what was being considered and dealt with. In the circumstances the argument that the meeting would not have dispersed without transacting the main business for which it was convened loses much of its force. The learned Judge also expressed the opinion that the meeting might have been conducted more efficiently. The finding of the learned Judge rests on a mere possibility and not on an examination of the evidence adduced in the case. Of course if the learned trial Judge had based his findings on oral evidence of witnesses whom he had an opportunity to observe in the witness box and of whose credibility he formed an estimate, it would have been difficult for us to differ from his conclusion. We therefore hold agreeing with the contention of the plaintiffs that the special resolution was not put to the meeting and was not passed.

If the special resolution was, in fact, put to the meeting and was passed by 66 voting for, we have no doubt on the evidence adduced even by the plaintiffs that there were no more than about 10 or 20 members who did not take part in the voting and therefore the 66 would constitute the required majority for declaring the resolution carried. In view of the finding that the special resolution was not passed, the amendment of the Articles and the consequent election of the members of the Managing Committee are wholly void.

This really disposes of the suit in favour of the plaintiffs. In this view it may hot be necessary to consider the other objections to the meeting. However we will deal with the other objections also, as in our opinion, some of them are well-founded.

We now proceed to consider them in the order in which they were enumerated earlier. The first of the objections is that the meeting was not convened by the proper authority. The Stewards constitute the authority under the Articles (Art. 49) to call for an extraordinary general meeting as well as the annual general meetings. The quorum for the meeting of Stewards is fixed at three. The notice, Ex. P. 8, was signed by the Secretary. It is common ground that there was no separate meeting of the Stewards in which they decided that an extraordinary general meeting should be convened on the 7th November. No minutes of any such meeting have been placed on record. Of the six Stewards Mr. Lawrance died sometime ago, Mr. Chidambaram Chettiar was out of India and according to Mr. Small, Mr. Hume was at the time of the notice in Ceylon, though he had no personal knowledge of it. Mr. Hume was present on the 7th both at the special committee meeting and also at the extraordinary general meeting. It may be assumed that Mr. Hume also was not available at the time Ex. P-8 was issued. The notice, Ex. P-8 did not indicate the authority under which the meeting was called. The extraordinary general meeting decided on the 21st June 1947 (Ex. P-2) that after the report of the special committee then constituted for revising the Articles was submitted a meeting of the general body should be called for not later than 31st October 1947 for the consideration of the report. This authority would not avail, because the time fixed had expired, and the meeting was subsequently convened only on the 7th November 1947. The defendants relied on Ex. P-7 which contains a resolution of the special committee passed on 15th October 1947 that an extraordinary general body meeting should be convened on the 7th November 1947. This meeting of the special committee was attended by 9 members of whom three were Stewards who were ex officio members of the special committee. As three of the Stewards who constituted the quorum for a meeting of the Stewards and who were the only persons available in India at that time took part in the special committee meeting, it is urged on behalf of the defendants that the resolution of that meeting may be deemed to be a resolution of the Stewards and therefore justified the calling of the meeting. Alternatively, it is also contended that in any event this is at the most an irregularity and not an illegality which justifies the setting aside of the resolution. If a general meeting is convened by the Secretary without proper authority it is not valid. See Haycraft Gold Reduction and Mining Company, In re and In re State of Wyoming Syndicate . Where the directors however met and decided to convene a general meeting but the meeting of the directors itself was not properly convened, it was held in Browne v. La Trinidad that by reason of the irregularity of the board meeting the general meeting was not incapacitated from acting. In the case in Harbon v. Phillips a board meeting of the directors was held which decided to convene an extraordinary general meeting. At the board meeting the plaintiffs who were the directors were refused admittance to the meeting by the Secretary under the direction of persons in possession of the board room. The plaintiffs protested and withdrew. The persons in possession of the board room purporting to act as a board adjourned their meeting to the next day to a different place, the office of their solicitor, and on the requisition presented to the meeting on the next day which was attended by three of the defendants appointed a special committee to convene an extraordinary general meeting. At the meeting of the board there was unquestionably a person who took part in the meeting and who was not a director. It was held that the meetings of the Board of Directors on the two days were unlawful and that everything that was done at those meetings was invalid. The consequence was that the appointment of the special committee and the notice convening the meeting were also invalid. It was pointed out in answer to an argument that there was a quorum of the directors and therefore the meeting was lawful that it was not enough that there was a quorum as the lawfully constituted directors were prevented from attending the meeting. The convening of the meeting, according to this decision, was not a mere ministerial act. The directors have to exercise their discretion and have to fix the time within which and the place at which the meeting should be held, and whether a meeting should at all be held. In the light of these decisions it is difficult to say that there was a valid meeting of the Stewards. There is no doubt some force in the argument of the respondents that the proceedings of the special committee in which three of the Stewards who were available in India were present may be deemed to be a valid meeting of the Stewards. The objection of the plaintiffs is technical. The mere presence of the other members of the special committee at that meeting may not vitiate the resolution to which the Stewards were a party. We do not however think it necessary to express any final opinion on this question.

The next question, for consideration is whether the notice, Ex. P-8, posted on the 16th October 1947 complied with the requirement of S. 81, Sub-Cl. 2 of the Indian Companies Act that there should be a notice of “Not less than 21 days.” There were 260 club members of whom 23 were living outside British India. 51 members who were absent members and 59 members lived at places which could be served through post after more than a day had elapsed from the date of posting. 127 members were within one day's reach from the date of posting. The notice of the meeting therefore posted on the 16th at Guindy could have been received by less than half the members only on the 17th. More than a day was required at least in respect of 59 members. Excluding therefore the date of service of notice and the date of the meeting there was only an interval of 20 days in respect of 127 members and a still less interval in the case of others. S. 81(2) of the Indian Companies Act provides:

“A resolution shall be a special resolution when it has been passed by such a majority as is required for the passing of an extraordinary resolution and at a general meeting of which not less than twenty-one days' notice specifying the intention to propose the resolution as a special resolution has been duly given

Provided that, if all the members entitled to attend and vote at any such meeting so agree, a resolution may be proposed and passed as a special resolution at a meeting of which less than twenty-one days' notice has been given.”

It is obligatory to serve notice of the meeting of a company with a statement of the business to be transacted at the meeting on every member in the manner laid down for service of notice under the Articles. Art. 49 of Table A of the Indian Companies Act which is the same as Art. 50 of Articles of the Club lays down:

“Subject to the provisions of Sub-S. 2 of S. 81 of the Indian Companies Act 1913 relating to special resolutions, fourteen days' notice at the least (exclusive of the day on which the notice is served or deemed to be served, but inclusive of the day for which notice is given) specifying the place, the day and the hour of meeting and, in case of special business the general nature of that business, shall be given in manner hereinafter mentioned, or in such other manner if any, as may be prescribed by the company in a general meeting to such persons as are, under the Indian Companies Act 1913, or the regulations of the Company, entitled to receive such notices from the Company; but the accidental omission to give notice to or the non-receipt of notice by any member shall not, invalidate the proceedings at any general meeting.”

The manner of serving notices is provided by Art. 112 of Table A which is the same as Art. 73 of Ex. P-29. It states:

“112(1). A notice may be given by the Company to any member either personally or by sending it by post to him to his registered address or (if he has no registered address in British India) to the address, if any within British India supplied by him to the Company for the giving of notices to him.

(2) Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing prepaying and posting a letter containing the notice and, unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post”.

It is admitted on behalf of the respondents that if regard be had to the expression “not less than twenty-one days” occurring in S. 81(2) there should be an interval of 21 clear days and indeed this position could not be disputed as it was established by decisions where similar expressions occurring in the Companies Act and also other statutes were considered. See In re Railway Sleepers Supply Company and Rex v. Turner . The argument however that was pressed on behalf of the respondents was that the section should be construed in the light of Art. 49 of Table A which includes the date of the meeting in cases where only 14 days notice is required. It was also argued that it was permissible to refer to the Articles for the purpose of ascertaining the intention of the legislature in the body of the Act. In support of this contention the decisions in In re Barnad's Banking Co. Ex parte The Contract Corporation Lock v. Queens land Investment and Land Mortgage Company and Halsbury's Laws of England, Vol. 5 Second Edition, page 292 para. 504 were referred to. There can be no dispute that the principle of construction contended for on behalf of the respondents' Advocate is correct. As Art. 49 is expressly made subject to the provisions of Sub-S. 2 of S. 81 it cannot be inferred that in construing that sub-section the legislature intended to include the date of the meeting within the period of 21 days. It cannot be assumed that because that date was included in other case the legislature intended to include its also in case of special rotations covered by Sub-S. 2 of S. 81. The very fact that a specific reference is made in Art. 49 to include the date of the meeting within 14 days in cases in which a notice of 14 days is required is a clear indication that it was not intended to apply to cases of meetings which require 21 days notice. Under the corresponding provisions of the English Companies Act of 1929 the Court of Chancery had to consider a similar question. Sub-S. (2) of S. 117 of the English Act corresponds to Sub-S. (2) of S. 81 of the Indian Act, and Art. 42 of the English Act corresponds to our Art. 49. In the case reported in In re Hector Whaling Limited a notice convening an extraordinary general meeting of the Company on 30th May 1935 was dated the 8th May 1935 and was posted on that day. By virtue of the Articles of Association of the Company the notice is deemed to have been served on the following day, that is, 9th May 1935. Excluding the date of the meeting it would be noticed that in that case the interval was only 20 days. Art. 138 of the company in question stated:

“Any notice or other document if served by post shall be deemed to have been served on the day following that on which the letter cantaning the same is put into the post, and in proving such service it shall be sufficient to prove that the letter containing the notice or document was properly addressed and put into the post office as a prepaid letter or prepaid registered letter as the case may be.”

On the authority of the decisions in Rex v. Turner and Chambers v. Smith , Bennett, J. held that the expression “not less than twenty-one days' notice” contained in Sub-S. 2 of S. 117 meant 21 clear days exclusive of the day of service and exclusive also of the day on which the meeting was to be held. It was also pointed out that it was not open by the Articles of Association to curtail the length of time which the statute had fixed. No doubt in that decision specific reference was not made to the language of Art. 42, and the contention now advanced was not raised and considered. It cannot however be assumed that the Counsal who argred the case and the learned Judge who decided it were not aware of the language of Art 42. In view of the clear language of the Article the point does not admit of any doubt, and perhaps that was the reason why the contention was not raised as of no substance.

It was next argued that in any event we should count 21 days from the date of posting, and that if that was done, there was an interval of clear 21 days even if the date of the meeting was excluded. The argument, in our opinion, is opposed to the clear language of Art. 112. The Article states that unless that contrary is proved the notice must be deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post, and this would be the 17th in the case of at least half the number of the members. This extraordinary contention is not supported by any decisions. Form No. VIII in whichevident a special resolution has to be communicated to the Registrar of Joint Stock Companies was relied on. In the form one of the columns is “Date of despatch of notice specifying the intention to propose the resolution as a special resolution or extraordinary resolution.” We do not think that it is permissible to rely on the language of the form to interpret the section and the Article. The date of the meeting and the date of service of notice are therefore to be excluded, and in between the dates there should be an interval of 21 days. The notice issued to all the members therefore was inadequate and did not comply with the statutory requirement and is therefore illegal. The meeting therefore was not legally convened.

The next branch of argument on behalf of the respondents in this part of the case was that as none of the members including the plaintiffs, who though absent appointed proxies on their behalf, objected at the time of the meeting, it must therefore be deemed that the members present either in person or by proxy had waived the objection. This plea was not specifically raised in the written statement nor in the issues. All that was said in paragraph 3 of the written statement was that the plaintiffs had received the notice of the meeting in due time and raised no objection to the validity of the notice at any time at or about the meeting though they were present by proxy at the meeting. Issue 3 raises in a general form the question whether the plaintiffs were entitled to question the validity of the notice of the meeting or the proceedings of the meeting at the general body of the 7th November, 1947 as stated in paragraph 3 of the written statement. As the facts have been pleaded in the written statement, though the point was not specifically raised in the form of waiver, we thought that the respondents should be allowed to argue the question. The respondents wanted also to raise a point based on the proviso to Sub-S. 2 of S. 81 but as it was nowhere raised we refused to grant them permission to raise and argue it for the first time in appeal. In 31 Halsbury, 2nd Edition at page 559 it is stated that,

“a statutory right which is granted as a privilege may be waived either altogether or in a particular case.”

If the plaintiffs had waived their right to question the legality of the notice, it is urged that they are precluded from maintaining the suit not only on their behalf but also on behalf of other members. Strong reliance was placed on the decision in Burt v. The British Nation Life Assurance Association where it was held that a plaintiff who has a right to complain of an act done to a numerous society of which he is a member, is entitled to sue on behalf of himself and all others similarly interested, though no other may wish to sue, so although there are a hundred who wish and are entitled to sue, still, if they sue by a plaintiff who is personally precluded from suing, the suit cannot proceed, although other persons on whose behalf the suit was instituted might maintain the action as plaintiffs. The question therefore resolves itself into this, namely, whether in view of the imperative provision regarding the notice in S. 81(2) it is open to the plaintiffs to waive their right to object to an illegality, the right being certainly not their personal right but a right belonging to them in their corporate character. The proviso to S. 117(2) of the English Act was added for the first time in 1929 in view of the decision in Oxford Motor Co., In re which decided that it was competent for the shareholders of the company acting together to waive the formalities required by S. 69 of the Companies (Consolidation) Act, 1908 as to notice of intention to propose a resolution as an extraordinary resolution. In that case all the share-holders met and passed a resolution without objection and it was held that the want of notice could be waived. The Indian Companies Amending Act of 1936 introduced a similar proviso in S. 81(2). Under the proviso it would be seen that the requirement as to 21 days' notice may be dispensed with by an agreement of all the members entitled to attend and vote and not merely of all the members entitled to vote and present in person or proxy at the meeting. It requires therefore an agreement of all the members of the Club in order to dispense with the requirement of 21 days' notice. The proviso in other words indicates the intention on the part of the legislature that the provision in Sub-S. 2 is mandatory and that it can be dispensed with only by the agreement of all the members. It is not enough that the members present at the meeting indicated either expressly or impliedly they consented to or acquiesced in shortening the period of notice. An express consent of all the members to waive the notice has not been established in this case. Even if the members present agreed to waive the defect in the notice the meeting would not be a valid meeting. The plaintiffs therefore are not precluded from raising the contention that the notice contravened the provision of Sub-S. 2 of S. 81.

The next objection is that the notice was insufficient, in that it did not give full particulars of the nature of the business. Under the Articles the notice should indicate the general nature of the business intended to be transacted at the meeting. The draft proposed amendments to the Articles of Association did not accompany the notice and were in fact posted only on the 21st October, and therefore must have been received on the 22nd. On this question there is no evidence on record, but it was agreed before us by the learned Advocates appearing for the appellants and the respondents as that the printed draft was posted on the 21st of October. It is therefore urged that the notice did not indicate the general nature of the business. We are not prepared however to agree with this contention. It was on the initiative of the general body that a special committee was appointed to consider the amendments, if any, to the Articles of Association. The notice clearly stated that a print of the proposed amended Articles of Association will follow shortly. From the 22nd to 7th of November the members had ample time to consider the proposed amended Articles. We do not think that the notice was insufficient and therefore bad on this ground. No useful purpose would be served by referring to the decisions to which our attention was drawn, as the decision of the question would invariably rest on the facts of each case.

In Palmer's Company Precedents, Part I, at page 1002 it is pointed out that,

“Where a large number of alterations have to be made, it is generally more convenient to adopt a new set of articles altogether. Where this course is adopted, a copy of the new regulations should lie for inspection at the office, and the notice convening the meetings should state the fact; and in some cases it may be deemed expedient to send printed copies of the proposed new articles with the notices. According to the decision of Kekewich, J., in Normandy v. Ind. Coope & Co. , the notice should call attention to any material alterations; and in Baillie v. Oriental Telephone and Electric Co., , the Court of Appeal held that a notice of a proposed resolution to alter articles involving a large increase in the remuneration of the directors was invalid on the ground that the proposed increase was not fully and frankly disclosed. …….

The notice should state that a copy of the new articles is enclosed, or that a copy of the proposed new articles may be seen at the Company's office.”

In this case in the notice it was stated that the proposed articles would be sent shortly, and they had been posted within six days from the date of posting of the notice. In the light of the principles stated above we think that there is substantial compliance with this requirement of law and that the notice was not bad on this ground.

Nor is there any force in the objection that the amendments moved relating to the proxies were not within the scope and ambit of the original resolution. Notice of the amendments was given in Exhibit P-13 by Mr. T.T Krishnamachari and others, and the Government later pointed out that it would be advisable in the interests of racing that proxies should be abolished to make the members take active interest in racing. The amendments proposed by Mr. Eswara Aiyar cannot be said to be outside the scope of the original resolution.

The next objection relates to the election of 12 members of the Managing Committee. If our view that the special resolution was not at all moved and the amendments were not passed by a special resolution is correct, the meeting had no authority to elect 12 members to the Managing Committee, as the old Articles continued to be in force. Apart from this, we think that the election was illegal, as the notice was not sufficient in the circumstances of the case. Exhibit P-8 was posted on the 16th October, and it required nominations for election to the Managing Committee to be submitted to the Secretary 14 clear days before the date of the meeting. That means, the nominations should be posted by a member either on the 21st October or on the 22nd to reach the Secretary. The members were not made aware of the functions and the duties of the Managing Committee, and in fact they did not receive the proposed alterations earlier than the 22nd, taking the view most favourable to the defendants. It is impossible for the members to make up their mind with no data before them and to submit nominations. Practically they had no valid notice of the election and the election was rushed through at the meeting of the 7th. The election is also invalid on the further ground that Mr. Natesan presided at the meeting. He was himself a candidate for the Managing Committee. There were 24 nominations and 19 actually contested the election. Objection was raised at the meeting that the new rule came into existence only on that day and that nominations were proposed 14 days before the passing of the rule. The chairman had to give a ruling on the question, and he decided in favour of the validity of the nominations including his own. The chairman's ruling may be correct or may be incorrect. Perhaps in view of the decision in Pacific Coast Coal Mines Ltd. v. Arbuthnot a notice for election of the members of the Managing Committee may retrospectively be validated by passing a special resolution, but that is not the question. Here is an instance where the chairman was in the position of a quasi-judicial officer, and he had to be a judge in his own cause. There was clearly a conflict between his duty and his interest. In the normal course he should have vacated the chair and requested another member who was not a candidate to take it, and this was not done. That a person cannot be a judge in his own cause is an elementary rule, and if an authority is wanted it is to be found in Rag v. Owens . In Fanagan v. Kernan it is stated:

“There is no more sacred maxim of our law than that no man shall be a judge in his own cause, and such force has that maxim that interest constitutes a legal incapacity to a person being a judge in every case………It is impossible for a Court of Law to allow him to exercise the function of presiding at that election of which he could influence the result”.

No man can preside at his own election and return himself. See The Queen v. White . These principles are well established, and it is unnecessary to deal with them elaborately. In fact, the respondents' Advocate does not dispute the propositions, but contends that those principles apply to meetings other than the meetings of a company. Under the Articles provision is made for the appointment of a chairman, and he continues to preside at the meeting whether the meeting is one for transacting ordinary business or passing a special resolution or for the election of members to the board, and the mere fact that the chairman is also a candidate for a committee or a board of management will not vitiate the proceedings. So ran the argument. No authority in support of this distinction was placed before us, and we do not see any reason for making a distinction between meeting of Company and other meetings. The principles above referred to are elementary and are of universal application. We therefore hold that the election of the 12 members of the Managing Committee was illegal, even apart from the question whether the special resolution was put to the meeting and passed or not.

We therefore hold that the special resolution ‘item 2 in the agenda’ was not passed, that the meeting of the 7th November was not legal and that the members of the Managing Committee were not duly elected. From this it follows that the proceedings of the general meeting of 18th November 1947 are void, and, in any event, the exclusion of proxies at that meeting was not warranted by the Articles, then in force. Differing therefore from the learned trial Judge we hold that the plaintiffs are entitled to the reliefs asked for.

The appeal is therefore allowed and the decree dismissing the suit is set aside. There will be a decree in favour of the plaintiffs as prayed for. The plaintiffs are entitled to the costs of this appeal and the costs of the suit, payable by the first defendant. Having regard to the trouble involved and the time taken we fix under R. 12 of O. 6, High Court Fees Rules, a fee of Rs. 2,500 for the plaintiffs' Advocates in the appeal and Rs. 2,500 for them in the suit.

N.R.R