J.P. SRIVASTAVA AND SONS PVT. LTD. AND ORS.versusM/S GWALIOR SUGAR CO. LTD. AND ORS.

A               J.P. SRIVASTAVA AND SONS PVT. LTD. AND ORS.
                                     v.
                     MIS GWALIOR SUGAR CO. LTD. AND ORS.

                                OCTOBER 26, 2004

B                     [RUMA PAL AND ARUN KUMAR, JJ.]


          Companies Act-Sections 397, 398 and 399(3)

          Petition by shareholders including a trust-Support of share holders
C having 10% of total issued shares-Calculation of-Held: Shareholding of
    the trust was to be taken into account as trust deed allowed a co-trustee-
    petitioner to act for the trust under express authorisation.

          Petition by Shareholders including a trust-Beneficial interest in part
    of shares held by trust already vesting in its beneficiaries prior to filing of
D   petition-Held; This was irrelevant as beneficial interest rf'uld not make
    owner thereof a member of company-It could not mean that owner of shares
    as registered with company was incompetent to file the petition.

          Shareholders supporting petition-letter of their consent-Held;
   Requirement of filing such letter with the petition was not mandatory in the
 E sense that their non-filing would ipso facto result in dismissal of petition-
    /I was especially so in view of power of CLB to pass any order for ends of
   justice and dispense with requirement of regulations-Only requirement was
    offiling of document as proof that consent of supporting shareholder had in
   fact been obtained prior. to filing of petition-substantial compliance with
·F the rule was sufficient provided no prejudice was caused-Regulations 18
    (Serial 27 of Annexure lll), 44 and 48 of Company law Board Regulations
    1991.

        Support of petitioners with qualifYing percentage of shares-Held; If
  Court is satisfied that petitioners represent a body of shareholders holding
G requisite percentage, it could assume that involvement ofcompany in litigation
  was not lightly done and not reject the petition on a technical requirement.

         Objection as to maintainability-Held-If objection is taken by demurrer
    ClB could decide the issue based on averment in the petition alone, accepting
                                         648
H
               J.P. SRIVASTAVA AND SONS PVT.LTD. v. GWALIOR SUGAR CO.LTD.        649

    the pleas therein as correct-However, Where CLB takes into consideration             A
    facts outside the petition, it cannot not foreclose the petitioner from supporting


-
     its case in the petition on the basis of evidence not annexed thereto-On
    facts, held that as objection of prior consent of shareholders holding 10%
    of total issued shares was taken in application by respondent, CLB should
    have determined the issue on evidence and dismissal ofpetition only because
    letters of consent had not been annexed with it was incorrect-Regulation             B
    24 of Company Law Board Regulations 1991.

           Appellants, a group of minority share holder in a company-respondent
    no. 1, filed a petition before Company Law Board (CLB) under Sections 397
    and 398 of Companies Act complaining of mis-management and oppression                C
    of the company. Respondent No. 8 contended that the petition was not
    maintainable as requirement of Section 399 of Companies Act of petitioner
    having 10% of total issued shares was not met by the appellant as that
    calculation was done with respect to equity shares only whereas it should have
    also included preference share. Petitioner-appellant no. 3 contended that she
    had filed the petition on her behalf as well as family trust which held 1029         D
    preference shares, and hence the petition was maintainable. CLB held that
    petition was not maintainable as the said trust had not consented to filing of
    the petition by no. 3. Single judge of High Court dismissed the appeal against
    that order on the grounds that since the Trust could neither delegate their
    powers nor authorise one of them to represent the trust, that consent of the
    trustees was not pleaded, that there was no compliance with Regulation 18 of         E
    Company Law Board Regulations 1991, and that the shares of trust had vested
    in the beneficiaries. Division Bench upheld the dismissal of the appeal. H ..·nce
    the present appeal.

         Question before the Court was whether trustees could authorise one of           F
    them to initiate proceeding for and on behalf of the trust, and if so, whether
    appellant no. 3 was so authorised.

          Disposing of the appeals, the Court

           HELD: 1. Although as a rule trustees must execute their duties of their       G
    office jointly, this general principle is subject to the following exceptions when
    one trustee may act for all (1) where the Trust Deed allows the trusts to be
    executed by one or more by majority of trustees (2) where there is express
    sanction or approval of the act by the co-trustees; (3) where the delegation of
    power is necessary; (4) wh~re the beneficiaries competent to contract consent
    to the delegation; (5) where the delegation to a co-trustee is in the regular        H
    650                     SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A course of the business; (6) where the co-trustee merely gives effect to a
    decision taken by the trustees jointly. 1661-E, GI

          Mis Shanti Vijay and Co. v. Princess Fatima Fouzia and Ors., AIR (1980)
    SC 17, relied on.

B         Atmaram Ranchhodbha v. Gulahusein Gu/am Mohiyaddin, AIR (1973)
    Gujarat 113 and Duli Chandv: Mis Mahabir Pershad Trilok Chand Charitable
    Trust, Delhi, AIR (1984) Delhi 145, approved.

          Jain Swetambara Murthi Pujaka Samas/ha v. Women Dattareya Pukale,
    AIR (1979) Karnataka 111, disapproved.
c
          1.2. The present trust comes within at least three of the exceptions listed.
    Clauses in the trust deed clearly allow not only co-trustee but any person to
    carry out the trust and to act for the trust provided of course such person is
    expressly authorised. [661-G; 66~-G-Hl

D          1.3. From the resolution of Trustees and their affidavits the conclusion
    is inescapable that the Trustees had expres!ily authorised appellant no. 3 to
    file the petition. Additionally, the affidavit of her husband, who is alleged to be
    the registered owner of the 1029 preference shares, clearly shows that he
    had expressly consented and authorised appellant no. 3 in his capacity as such
E   trustee to file the proceedings. [664-C-DI

          P. Punnaiah v. Jeypore Sugar Co. Ltd., AIR (1994) SC 2258, relied on.

          2.1. The intention of the petitioners undoubtedly was to represent the
    J.K. Group which admittedly has the qualifying number of share, although
    the expression of such intention was not as clear as it should have been.
F                                                                          [665-B-q

          2.2. All the fora below have n,ot proceeded on the basis that the pleading
    in the petition did not reflect the intention. They have rested their findings
    on the law as perceived by them that the Trust could not have been represented
G   by one co-trustee. The perception has held to be erroneous. 1669-C-D)

          3. The other ground on which the flora dismissed the petition was that
    the beneficial interest in 551 shares of the 1029 held by the Trust had already
    vested in the beneficiaries prior to the filing of the petition complaining of
    mismanagement and oppression. This is again an incorrect legal proposition.
H   An equitable or beneficial interest in- shares does not make the owner of the
                 J.P. SRI VASTA VA AND SONS PVT.LTD. v. GWALIOR SUGAR CO. LTD.      65 l

      interest a member· of the company. Therefore, even assuming that in terms of          A
      the Trust Deed the shares had devolved on the beneficiary of the Trust, this
      would not mean that the owner of the share as registered with the company
      would not be competent to file petition under Sections 397 and 398.
                                                                     [669-D, E, F)

            Mis Howrah Trading Co. v. Commissioner of Income Tax, AIR (1959)                B
      SC 775 and Killick Nixon Ltd v. Bank of India, [1985) (57) Co. Cases 832,
      referred to.

            4.1. Section 399 of the Act has replaced Section 153-C(3) of the India
      Companies Act, 1913 with some major differences. Section 153-C(3) of the
      1913 Act itself provided that the consent of the shareholders supporting the          C
      petition should be obtained in writing. Sub-section (3) of Section 399 of the
      1956 Act, however, contains no such requirement It only speaks of'obtaining'
      of the consent. It does not speak of consent in writing nor does it require any
      such writing to be annexed with the petition. Regulation 18 also does not itself
      contain the requirement for filing of the consent letters. The requirement            D
      has been prescribed in Annexure Ill, which is referred to in Regulation 18.
      Serial 27 of Annexure Ill contains a list of several documents required to be
      annexed to petitions relating to the exercise of power in connection with
      prevention of oppression or mismanagement under Sections 397, 398, 399(4),
      400, 402, 403 404 and 405, These requirements can hardly be said to be
      mandatory in the sense that non-compliance with any of them would ipso facto          E
      result in the dismissal of the petition. Apart from this, Regulation 18 itself
      is subject to the power of CLB under Regulation 44 providing for its inherent
      power and Regulation 48 providing for its power with the requirements of
      regulations Given these power of CLB, it cannot be held that non-compliance
      with one of requirements in Sri. No. 27 in App. III of Reg. 18 goes to the very
      root of the jurisdiction of the CLB to entertain and dispose of a petition under
                                                                                            F
      Sections 397 and 398. All that regulation 18 requires by way of filing of
      documents, is proof that the consent of the supporting shareholders had in
      fact been obtained prior to the filing of the petition in terms of Sections 399(3).


..                                         . [665-B-C-D; 666-B-C-D, E, G; 667-A-B I

            4.2. If the Court is satisfied that the petitioners represent a body of
      shareholders the requisite percentage, it can assume that the involvement of
                                                                                            G

      the company in litigation is not lightly done and that it should pass orders to
      bring to an end the matters complained of and not reject it on a technical
---   requirement. Substance must take precedence over fron;t Section 399(3) and
                                                                                            H
    652                     SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A Regulation 18 have been substantially complied with in this case.
                                                                  [669-H; 670-A-B)

          Pratap Singh v. Shri Krishna Gupta, AIR (1956) SC 140, referred to.

          5.1. It is open to the persons opposing the application under Sections
B 397 and 398 to question the correctness of an assertion as to the consent
    made by the petitioner. It is equally open to the petitioner to provide evidence
    in support of the plea taken in the petitioner. If of course the objection to the
    maintainability is taken by demurrer, the CLB can decide the issue on the
    basis of the averments contained in the petition alone, accepting the pleas
    therein as correct. But where the CLB takes into consideration facts outside
C   the petition as it has done in this case, it cannot foreclose the petitioner
    supporting its case in the petition on the basis of evidence not annexed thereto.
                                                                           (667-B-C)

          5.2. Since the CLB calculated the total shareholding of the company
    including preference shares based on the allegations contained in respondent
D   no. 8's application, it was for the CLB to determine the issue of actual prior
    consent on evidence. This view finds support from Regulation 24. The finding
    of the CLB and the High Court to the effect that the petition of the appellant
    deserved to be rejected only because the letters of consent had not been
    annexed to the petition was therefore incorrect. [667-D; 668-B-C)

E         CIVIL APPEL LA TE JURISDICTION : Civil Appeal No. 6951 of 2004.

         From th~ Judgment and Order dated I 0.8.200 I of the Madhya Pradesh
    High Court in L.P.A. No. 17 l of 2000.

          Ms. Tasneem Ahmadi, Santosh Dwivedi, Anurag Pandey and Sudhir
p Kumar Gupta for the Appellants.
          C.A. Sundram, Gopal Jain, Ms. Rakhi Ray, Ms. Bina Gupta, Ms. Nandini
    Gore, Mrs. Manik Karanjawala and Umesh Kumar Khaitan with him for the
    Respondents.

          The Judgment of the Court was delivered by
G
          RUMA PAL, J. Leave granted.

        This appeal arises out of proceedings initiated under Sections 397 and
  398 of the Companies Act (hereinafter referred to as 'the Act') by a group
  of minority shareholders complaining of mis-management and oppression in
H respect of the respondent No. I company M/s. Gwalior Sugar Company Ltd. ·             --
        J.P. SRIVASTAVAANDSOl'!_SPVT. LTD. v. GWALIOR SUGAR CO. LTD. [RUMAPAL,J.] 653

    (referred to as 'the Company'). The appellants are the unsuccessful petitioners.    A
    The primary question to be resolved in this appeal is whether they held the
    requisite one-tenth of the issued share capital of the Company under Sectiori
    399 (I) of the Act when they filed the petition under Ss. 397 and 398.

          The shares of the Company are basically held by two branches of the
    family of J.P. Srivastava. J.K. Srivastava, who was originally the petitioner No.   B
    4, and H.K. Srivastava who was originally the respondent No.2, were the two
    sons of J.P. Srivastava. During the pendency of the proceedings before us,
    both J.K. Srivastava and H.K. Srivastava have died and are now represented
    by their respective heirs. In the case of J.K. Srivastava, his interest is now
    represented by his widow Mrs. Raj Mohini Srivastava and his only son Vijay
    Kumar Srivastava. As far as H.K. Srivastava is concerned, he is represented         C
    by his four children, Vikram, Hemlata, Vir and Radhika. The corporate
    shareholders in the Company are in tum also held by members of the Srivastava
    family. Mrs. Nini Srivastava, appellant No.3, the wife of Vijay Srivastava, was
    the third petitioner in the proceedings as originally filed. She was described
    as a petitioner "for herself and as trustee for J .K. Srivastava Family Trust"      D
    (referred hereafter as the Trust).

          The proceedings were initiated before the Company Law Board (CLB)
    on !st July 1995. The pleadings were completed and the matter heard from
    time to time. On 22nd January 1996, CLB issued an order, the relevant extract
    of which reads thus:
                                                                                        E
            "In view of the close relationship between the parties, we suggested
            to the counsel for both the sides that they should try to work out an
            amicable settlement between the parties. The counsel have undertaken
            to do so. The result of their efforts will be intimated to us on 20th
            February 1996 at 2.30 p.m."
                                                                                        F
          Hearings were adjourned on 22.2.96, 4.3.96 and 15.3.96 when the CLB
    was informed that compromise talks were in progress. Ultimately on 7.5.96, the
    CLB passed this order:

            "It was agreed by the parties that the petitioners will sell their shares

-           to the respondents for a value per share to be determined by a valuer
            appointed by us and the value will be binding on all the parties. The
            parties will approach jointly reputed valuers and suggest an acceptable
                                                                                        G


            name for our approval on 3015196 at 4.15 p.m."

-         On l 0.6.1996, with the consent of the parties, the CLB appointed M/s
                                                                                        H
    654                     SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.

A Thakur Vaidyanathan Iyer as company chartered accountants, New Delhi to
    value the shares of the company. On 22.11.96, the chartered accountants
    valued the shares. As the respondents had reservations about the value, the
    matter was re-heard by the valuer who reconsidered the submissions of the
    parties. Ultimately, the value of the equity shares was given by the valuer as
    Rs.6340 per share. The valuation for a prefe~ence share of Rs. 100 was fixed
B   at par. The respondents objected to this valuation also. The contention of the
    respondents was that the other disputes relating to family properties in
    possession of the petitioners should be settled also. After various hearings
    the matter was fixed for hearing on 6.11.1998.

          On 3.11.1998, the respondent No. 8, Mrs. Radhika Srivastava, moved an
C application challenging the order dated 10.6.1996. In the application it was
    alleged that the respondent No.8 had no knowledge of the compromise and
    that she had been kept in the dark about the settlement arrived at. She prayed
    for recall of the order dated 10.6.1996. It was also said that the calculation of
    10% of the petitioner's shareholding in the Company was made only with
D   regard to the equity share capital of the company, whereas Section 399 sub-
    section (I) requires the petitioner to have 10% of the total issued share capital
    which would include preference shares and that the shareholding claimed by
    the petitioners diq not amount to 10% of such total. It was contended that
    the appellants therefore did not hold the requisite 10 per cent of the issued
    share capital of the respondent No. I company and therefore the petition
E   under Section 397 and 398 was not maintainable and should be dismissed.

           The appellants filed a pre-notice reply on 5.11.1998 in which they stated
    that the petitioner No. 3 (the appellant No. 3 before us) had filed the petition
    on behalf of herself and as a trustee of the J.K. Srivastava Family Trust
    (referred to as the Trust) and that the Trust held 1029 preference shares. It
F   was also alleged that the respondent No.8 was fully aware of and had
    participated in, the proceedings, in which there had been 25 hearings over
    three and a half years.

         On 6th November, 1998, the matter was listed for orders to be passed
  by CLB, when, according to the appellants, the CLB directed the appellants
G to file the consent/authority if any given by the Trust to Mrs. Nini Srivastava
  to file the petition under Sections 397 and 398. On 9th November, 1998 the
  appellants brought on record an affidavit dated 9th June, 1995 executed by
                                                                                        -
  the trustees to the effect that they had granted consent to the appellant No.3
  to file the petition, a resolution of the Trust dated I 0th June, 1995 and an
H affidavit of Mr. V.K. Srivastava dated 12th June, 1995. The appellants also
                                                                                        -
                                                                                        I
           J.P. SRIVASTAVA AND SONS PVT.LTD. v. GWALIOR SUGAR CO.LTD. [RUMA PAL,J.J 655

       filed a detailed reply in which it was inter a/ia stated that the Trust held 1029   A
       preference shares in the company, that Mrs. Nini Srivastava had been appointed
       as a trustee of the Trust on 24th August, l 994, that authority/consent to file
       the petition under Sections 397,398 had been given by the trustees on 9.2.1995
       and by Mr. V.K. Srivastava a co-trustee by his affidavit dated 12th June, 1995.

             The other respondents supported the respondent No. 8's application.           B
       In the counter affidavit filed on behalf of the Company, it was said that:

              "As per the records of the Company as on date i.e the shareholders
              register, I 029 Preference Shares stand registered in the name of Mr.
              V.K. Srivastava Trustee, J.K. Srivastava (family) Trust and not in the
              name of Mrs. Nini Srivastava. The endorsement in the cause title             c
              against the name of Mrs. Nini Srivastava who is not all a Trustee is
              no compliance at all and the petition is liable to be dismissed as being
              not maintainable on the ground that it has been filed by the petitioners
              holding less than Ill 0th of the issued share capital of the company
              i.e. 27.68 lakhs".                                                           D
              The hearing in the matter was concluded by the CLB and judgment
       reserved two days after the last affidavit was filed. On 18th January, 1999 the
       CLB passed an order rejecting the challenge by the respondent No.8 to the
       consent order dated I 0.6.1996. It revised the valuation and considered that
       a sum of 6000 per equity share would be an appropriate value and Rs. I 00           E
       would be the appropriate value for the preference shares. However, the CLB
       upheld the contention of the respondent No. 8 that the application under
       Sections 397 and 398 was not maintainable on the ground that the petitioner
       did not hold the requisite 10 per cent shares. The CLB proceeded on the basis
       that the Trust held 1029 shares in the company but that it had not consented
       to the filing of the petition under Sections 397, 398 by Nini Srivastava.           F
       According to the CLB " ... The only issue for examination is whether the Trust
       is a party to the proceedings or whether the Trustees have given their
       consent to file the petition and if so whether the same is legally valid". It
       answered this issue against the petitioners because;

               (I) No authority of the J.K. Srivastava Family Trust authorizing the
                                                                                           G
               3rd Petitioner to represent the Trust nor any affidavit by her
               representing the Trust had been annexed to the petition;

               (2) since there was no averment to the effect that the petitioner had
               the consent of the Trustees to file the petition and since the consent      H
.,_.
    656                    SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.

A           documents were not enclosed with the petition, the requirement under
            Regulation 18 had not been complied with and that non-enclosing the
            consent document with the petition was fatal to the petition.

            (3) If the preference shares held by the Trust is not taken into
            consideration, then the total number of shares held by' the petitioners
B           would work out to about 7% of the subscribed capital and if the
            shares are included, then the percentage would go to I0.85%.

            (4) 515 preference shares of the trust had already vested in the one
            of the beneficiaries thus reducing the percentage of the petitioners
            share holding to less than 10% and;
c
            (5) relying upon Duli Chand v. Mis. Mahabir Pershad Tri/ok Chand
            Charitable Trust, Delhi AIR (1984) Delhi 145 that Trustees cannot
            authorize one of them to initiate proceedings in the name of the trust.

          It therefore reached the conclusion that the shares held by the Trust
D cannot be taken into account for the purposes of the provisions of Section
    399. Therefore without passing any directions pursuant to its finding on the
    effect of the consent order, it dismissed the petition.

          Several appeals were preferred from this order under Section IO-F of the
    Act both by the appellants and the respondents. The learned Single Judge
E   dismissed all the appeals holding that the petition was not maintainable
    because no consent of the trustees had been pleaded, that there was no
    compliance with Regulation 18, that the shares of the Trust had vested in the
    beneficiaries and that the trustees could not delegate their powers or authorize
    one of them to represent the Trust.
F         During the pendency of the appeals, the respondents, according to the
    appellants, committed further acts of oppression in respect and mismanagement
    of the company. Consequently, a second petition was filed under Sections 397
    and 398 of the Act by the appellants.

G          A Letters Patent appeal was filed from the decision of the Single Judge
    before the Division Bench by the appellants. The Division Bench held that
    the filing of the consent along with application under Section 399(3) of the
    other share h_olders was a sine q'w non to the initiation of proceedings under
    Sections 397 and 398 and that on the failure on the part of the appellants to
    file the alleged consents the application had been rightly dismissed. It was
H   held that it was not necessary to determine the nature of the trust and
           J.P. SRIVASTAVA AND SONS PVT.LTD. v. GWALIOR SUGAR CO. LTD. [RUMA PAL,J.] 657

       whether the shares held by the Trust had devolved on any of the beneficiaries
                                                                                           A
       before the petitions under Sections 397 and 398 of the Companies Act had
       been filed. It was said that:

               "If the trust contained some other properties there is likelihood that
               the shares may not be divided."

             The Division Bench was also of the view that since the second application
                                                                                           B
       had been filed, the CLB should consider whether the shares of the trust
       should be reduced and the implications of Section 153 of the Act. The CLB
       was directed to decide the subsequent application on its merits ignoring the
       observations made by the CLB in its order dated 18.1.1999 as well as of the
       Single Judge and to decide the case on merits on the basis of the persons           c·
       whose names were recorded in the register of share holders.

              Befoce us the appellants contended that the Trust and the co-trustees
       had authorised the third appellant to represent the Trust. It was submitted
       that there was no dispute in fact that the Trust held 1029 shares in the
       company. The only dispute was whether the third appellant was authorized            D
       to act on behalf of the Trust. It was submitted that Section 399(3) did not deal
       with the authorization but with the consent of supporting shareholders. It is
       said that the Trust still continues and has not been brought to an end by
       reason of devolution of the shares to the beneficiaries. It is said that the co-
       trustees had in fact consented to/ authorized the appellant No. 3 to initiate
                                                                                           E
       and prosecute the petition under Sections 397 and 398 and that in any event
       the CLB should have given an opportunity to the appellants to implead the
       other co-trustees. It was pointed out that the respondent No.8 had never
       raised any issue that the trustees were necessary parties and that in their
       absence the petition under Sections 397 and 398 was not maintainable. It was
       also submitted that the High Court erred in holding that compliance with            F
       Regulation 18 of the Company Law Board Regulation was a mandatory
       requirement. It was said that Section 399(3) only requires that the consent
       should be obtained prior to the filing of the petition. If this was proved as
       a fact, the requirement of filing the consents in writing along with the petition
       under Regulation 18 should not render the petition itself not maintainable.
       Reference has been made to Regulations 44, 46 and 48 to show that the CLB
                                                                                           G
...    retained the power to dispense with the requirements of Regulation 18, in
       support of the submission that Regulation 18 was merely directory.

             Learned counsel appearing on behalf of the respondents submitted that
 ,.    the petition had originally been filed only on the basis of the equity share
~                                                                                          H
....



                                                     '                                          '
    658                      SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A holding of the four petitioners and did not refer to any redeemable preference'
    shares. In the absence of these pleadings, it was asserted that the petitioners
    did not have the requisite qualification shares for initiating proceedings under
    Sections 397,398. It was submitted that the subsequent phrase "plus 1029
    preference shares" in paragraph 2 of the petition was an interpolation.
    Secondly, it is submitted that Mrs. Nini Srivastava did not have the ·consent
B   of the other trustees, and that assuming that she had the consent of the
    trustees to file the petition, there was no such averment in the petition nor
    any consent letter filed with the petition in violation of the mandatory
    requirement of Regulation 18 of the Company Law Board Regulations. Finally,
    it was said that the only person who could have joined the petition as a
C   petitioner was V.K. Srivastava who was the registered share holder of the 1029
    Preference Shares. It is said that the trust was not and could not have been
    a member of the company. This, according to the respondents, clearly followed
    from Sections 41 (2) read with Section 153 of the Act. It is said that admittedly,
    the application had not been filed on behalf of V .K. Srivastava. Even assuming
    that the Trust was the registered member of the Company, it is contended that
D   there was no averment that the company petition had been filed on behalf of
    the Trust. It is submitted that there was in fact no consent and that the so
    called consents were subsequently obtained.

          Any Member/or members of a Company may apply under Ss. 397 and
E 398 of the Act to the CLB complaining of mismanagement or oppression
    provided such Member or Members have the requisite shareholding as
    prescribed under Section 399 to do so. The relevant portions of Section 399
    read as under:

          "S.399. Right to apply under Sections 397 and 398.
F           ( l) The following members of a company shall have the right to apply
            under section 397 or 398:-

            (a) in the case of a company having a share capital, not less than one
            hundred members of the company or not less than one-tenth of the
            total number of its members, whichever is less or any member or
G           members holding not less than one-tenth of the issued share capital
            of the company, provided that the applicant or applicants have paid
            all calls and other sums due on their shares;

            (b) xxx    xxx    xxx

H           (2)xxx     xxx xxx
    J.P. SRI VASTA VA AND SONS PVT.LTD. v. GWALIOR SUGAR CO. LTD. [RUMA PAL,J.J 659

        (3) Where any members of a company are entitled to make an application        A
        in virtue of sub-section (l), any one or more of them having obtained
        the consent in writing of the rest, may make the application on behalf
        and for the benefit of all of them.

        The question is, did the appellants who were the original petitioners
        have the requisite number of shares when the petition was filed.              B
     The question itself raises two further issues viz. who were the petitioners
and did they in fact hold the necessary shares?

      Mrs. Nini Srivastava claimed to represent the Trust which held 1029
shares so making up the necessary shareholding under Section 399. It will be          C
noted from the arguments particularized earlier that there has been a shift in
the arguments raised by the respondents. Before the CLB, the Single Judge
and the Division Bench the respondents arguments and basis of the decision
of the three fora was that the Trust held the I 029 Preference Shares and that
the Trust had not consented to or authorized the filing '.of the petition under
Sections 397, 398 of the Act. Before us however, the main focus of the                D
argument has been that the Trust was not owner of the :1029 shares but that
the owner was Mr. V.K. Srivastava, who is now appellant No.4(b) before us,
and that the petition had not been filed on his behalf by the appellant No.3.
Although in the affidavit in reply filed by the Respondent No.8 there is a plea
that shares could not be held in the name of the Trust under Section 153 of           E
the Act, from the reasoning of the CLB and the two decisions of the High
Court which we have noted earlier, it is apparent that the issue was not
pressed.

       The three courts below have concurrently found that the Trust which
held the preference shares was not properly represented by Nini Srivastava.           F
This was the only case which the appellant had to meet. Now the respondents
contend that in fact it was Vijay Kr. Srivastava who held the 1029 shares and
not the Trust and Nini Srivastava did not represent him. Although a passing
reference was made to the fact in the counter affidavit filed by the Company
as noted above, that was done in the context of denying that Nini Srivastava          G
was a trustee. In our judgment it would not be proper to permit the respondents
to raise an issue not argued by them either before the CLB or the High Court
and to make out a new case at this stage. To allow a party to take grounds
not urged earlier would not only result in taking the other party by surprise
but it would deprive such party of any adjudication on the issue by the
different courts - a right to which each party is otherwise entitled. It would        H
    660                   SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A   also place such party at a great disantage as no opportunity would have been
    granted to it to meet the new plea. In the case of Rajahmundry Electric
    Supply Corporation v. A. Nageshwara Rao and Ors., AIR (1956) SC 213 the
    contention on behalf of the Company, while opposing a petition under Ss.
    397, 398, was that there was no proof that the applicant had obtained the
    consent of the requisite number of shareholders opposing the petition. It was
B   said that out of the 80 persons who had consented to the institution of the
    application, 13 were not shareholders at all and that two members had signed
    twice. This Court said:

           "This point is not dealt with in the judgment of the trial court, and
           the argument before us is that as the objection went to the root of
c          the matter and struck at the very maintainability of the application,
           evidence should have been taken on the matter and a finding recorded
           thereon".

          The submission was rejected because the objection though raised in the
D   written statement had not been pressed at the trial and had not been argued
    before the Trial Judge. We will therefore decide only those issues which were
    pressed and decided upon by the three courts.

         The issue then is was it represented before the CLB by Nini Srivastava?
    The answer to this would depend on whether the trustees of the trust could
E   authorize one of them to initiate proceedings for and on behalf of the Trust.
    A Full Bench of the Gujarat High Court in Atmaram Ranchhodbhai v.
    Gulamhusein Gu/am Mohiyaddin, AIR (1973) Gujarat 113 said:-

           " ............ Whether the trust is a private trust governed by the Indian
           Trusts Act or is a public charitable or religious trust, a trustee cannot
F          delegate any of his duties, functions and powers to a co-trustee or
           to any other person unless the instrument of trust so provides or the
           delegation is necessary or the beneficiaries competent to contract
           consent to the delegation or the delegation is in the regular course
           of business. These are the only four exceptional cases in which
           delegation is permissible and save in these exceptional cases, the
G          trustees cannot, c;,ven by a unanimous resolution, authorize one of
           themselves to act as managing trustee for executing the duties,
           functions and powers relating to the trust and every one of them must
           join in the execution of such duties, functions and powers ". (p.115)

          The issue in that case was whether one co- trustee could determine a
H tenancy. The Court said he could not, but held:
   J.P. SRIVASTAVA AND SONS PVT. LTD. v. GWALIOR SUGAR CO. LTD. [RUMAPAL,J.] 661

        "But when we say that the tenancy must be determined by all co-            A
        trustees, we must make it clear that what we mean is that the decision
        to terminate the tenancy must be taken by all the ·co-trustees. The
        formal act of giving notice to quit pursuant to the decision taken by
        all the co-trustees may be performed by one co-trustee on behalf of
        the rest. The notice to quit given in such a case would be a notice
        given with the sanction and approval of all the co-trustees and would      B
        be clearly a notice given by all co-trustees." (p.116)

      The view has been followed by the different High Courts [See for
example Du/i Chand v. Mis. Mahabir Pershad Tri/ok Chand Charitable
Trust, Delhi AIR (1984) Delhi] and held to be too narrow in Jain Swetambara
Murthi Pujaka Samastha v. Waman Dattatreya Pukale, AIR (l 979) Kamataka            C
ll l.

      This Court in Mis. Shanti Vijay and Co. v. Princess Fatima Fouzia and
Ors., AIR ( 1980) SC 17 held that:-

        " the act of one trustee done with the sanction and approval of a co-      D
        trustee may be regarded as the act of both. But such sanction or
        approval must be strictly proved."

      It was also held that a trustee could act on behalf of others, if there is
a clause in the Trust Deed authorizing the execution of the Trust to be carried
out by "one or more or by majority of the trustees".                               E

       Therefore although as a rule, trustees must execute their duties of their
office jointly, this general principle is subject to the following exceptions
when one trustee may act for all (I) where the Trust Deed allows the trusts
to be executed by one or more or by majority of trustees, (2) where there is
                                                                                   F
express sanction or approval of the act by the co-trustees; (3) where the
delegation of power is necessary; (4) where the beneficiaries competent to
contract consent to the delegation; (5) where the delegation to a co-trustee
is in the regular course of the business; (6) where the co-trustee merely gives
effect to a decision taken by the trustees jointly.
                                                                                   G
      The present case comes within at least three of the exceptions listed.
The Trust in question was created on 25.12.1978 by J.K. Srivastava, one of
the original petitioners in favour of his two minor grandsons, Kuna! and Yatin.
The trustees named in the Trust Deed were the settlor's wife, Raj Mohini (now
the appellant No.4 (a)) and their son Vijay (now the appellant 4(b)) who was
                                                                                   H
    662                        SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A also the father of the beneficiaries. The Trust Deed contains the following
    clauses:

                   "Clause 7: The Trustees shall hold the Trust Fund or any property
               representing the same in trust for the Settler's said grandsons so,
               however, that when Master Kuna! Krishna Srivastava attains the age
B              of 18 years, he will be given his fifty percent share of the then Trust
               Property or Fund and thereafter the same will rest absolutely in him,
               and so, however, that thereafter the Trustees shall hold the remaining
               Trust Property or Fund for the benefit of Master Yatin Krishna
               Srivastava till he attains the age of 18 years when the Trust will
               automatically ease and the properties shall vest absolutely in the said
c              grandson, Master Yatin Krishna Srivastava.

               Clause 12:The Trustees may instead of acting personally employ and
               pay any agent whether a solicitor, banker, stock broker or any other
               person to transact any business or to any act required to be transacted
               or done in the execution of the trusts hereof including the receipt and
D              payments of money and shall be entitled to be allowed and paid all
               charges and expenses so incurred and shall not be responsible for the
               default of any agent employed in gooq faith.

               Clause 16: The Trustees shall have full power to file and defend suit,
               appeals, applications etc. to declare, sign and verify all plaints, written
E              statement, memo of appeals, cross objections, applications, affidavits
               etc. and to appeal at any place or places in the Union of India before
               any Court, office or authority to present and lodge any documents for
               registration and to admit disputes, differences and demands to
               arbitration and to adjust, approve and settle all accounts relating to
F              the Trust Fund and to execute all releases and discharges and to do
               all other things relating thereto.

               Clause 19: All the decisions that will be required to be taken in
               carrying out the Trusts herein contained shall be taken by majority of
               the Trustees. If the Trustees are equally divided the Chairman shall
G              have an extra or casting vote. The Trustees present shall form a
               quorum for any meeting of the Trustees."

          These clauses clearly allow not only one co-trustee but any person to
    carry out the trusts and to act for the trust provided of course such person
    is expressly authorized [See: Killick Nixon ltd v. Bank of India (supra);
H
    J.P. SRIVASTAVA AND SONS PVT.LTD. v. GWALIOR SUGAR CO.LTD. [RUMA PAL,J.J 663

Punnaiah v. Jeypore Sugar Co. Ltd., (supra)].
                                                                                    A
        The Resolution dated 3rd June, 1955 of the Trustees records inter alia:

         "The constituents of the J.K. Srivastava group had decided to file a
         petition with the Company Law Board in Delhi, under Section 397 and
         398 of the Company's Act, in the matter.                                   B
          Mrs. Nini Srivastava reported that she was also to be a Petitioner and
          the petition had been prepared.

          The petition, application and Annexures were placed on the table,
          duly examined read and understood and duly approved particularly to
          its contentions, submissions and prayers.                                 c
          It was then duly resolved that Mrs. R.M. Srivastava and Mr. Vijay K.
          Srivastava Trustees give consent on behalf of the Trust to the filing
          of the Petition/presentation of the Petition by Mrs. Nini Srivastava
          and that she be also authorized to take all Legal action as advised in
          the manner".                                                              D

        A joint affidavit affirmed on 9th June, 1995 by Raj Mohini and Vijay
says:

          "We have read and understood the Petition Under Section 397 and
          398 of the Companies Act, ancillary application annexures and confirm     E
          our consent to Mrs. Nini Srivastava, a Trustee of the Trust and a
          Petitioner with others, in the Petition, to her filing/presenting the
          same. We also hereby give consent and authority to Mrs. Nini
          Srivastava a Trustee of the Trust to take such and all legal actions
          as advised".
                                                                                    F
      Finally, an affidavit was affirmed by Vijay Krishna Srivastava on 12th
June, 1955 to the following effect:

              "I, Vijay Krishna Srivastava, Trustee of the J.K. Srivastava Family
          trust, holding 1029 fully paid up, Cumulative Preference Shares of        G
          Rupees I00 each of Gwalior Sugar Company Lt., as Trustee, have
          hereby given consent to the filing presenting of the Petition before
          the Company Law Board, New Delhi, under Sections 397 and 398.of
          the Company Act, by Mrs. Nini Srivastava a Trustee of J.K. Srivastava
          Family Trust, in the matters of J.K. Srivastava and others J.K.
                                                                                    H
    664                      SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.

A           Srivasatava constituents) against Gwalior Sugar Co. Ltd. and the H.K.
            Srivastava and Others (H.K. Srivastava constituents). The Petition
            relates inter alia to the transfer of 3229 Equity Shares of Gwalior
            Sugar Co. Ltd. and other acts of oppression and mismanagement by
            the H.K. Srivastava Constituents in management of Gwalior Sugar
            Company Ltd.
B
                I have read and understood the Petition under Sections 397 and
            398 of the Companies Act, ancilliary application/ annexures and confirm
            consent to Mrs. Nini Srivastava, a trustee of the J.K. Srivastava
            Family Trust, and a Petitioner with others, in the Petition to her filing/
            presenting the same."
c
           The conclusion is inescapable that the Trustees had expressly authorized
    Nini Srivastava to file the petition. Additionally, the affidavit ofVijay Srivastava,
    who is alleged to be the registered owner of the I 029 preference shares,
    clearly shows that he had expressly consented and authorized Nini Srivastava
    in his capacity as such trustee to file the proceedings. If the respondents had
D   fairly and squarely raised the issue as to the petition not being consented to
    by Vijay Srivastava as the registered shareholder of the 1029 shares, it would
    have been open to the appellants to have relied on this affidavit and if
    necessary amended the petition. The power to allow such amendments has
    been expressly granted to the CLB under Regulation 46. As was stated
E   several decades ago by the Privy Council in Charan Das v. Amir Khan, AIR
    (1921) 50:-

                "Where the plaintiffs, through some clumsy blundering, attempted
            to assert rights that they undoubtedly possessed under the statute
            in a form which the statute did not permit, ~hey should be at liberty
F           to express their intention in a plainer and less ambiguous manner, and
            to amend the plaint so as to express the rights which it has been really
            their intention all along to establish, although the amendment of plaint
            is sought to be made at a time when the suit itse-lf if instituted then
            would be time-barred". (P.50)

G         However, for the reasons indicated by us earlier we do not propose to
    entertain this plea of the respondents at this stage.

          It is true that criminal proceedings have been instituted -by the
     respondents on the allegation that the stamp paper on which the 1ffidavits
    ·have been affirmed were purchased subsequently. But we are not prepared
H
    J.P. SRIVASTAVA AND SONS PVT. LTD. v. GWALIOR SUGAR CO. LTD. [RUMAPAL,J.J 665

to reject the documents as forged ones not only because the executants have                         A
hotly contested the allegations but also because there is no finding to that
effect by any of the three courts below or by the criminal court. Indeed as
matters now stand the criminal proceedings have been stayed by the High
Court. Furthermore, Vijay Srivastava and Raj Mohini's continuous support is
also apparent from the fact that both of them are parties to the appeal before                      B
us albeit in the capacity of heirs of Late J.K. Srivastava.

      The Courts below however refused to entertain the petition because the
documents referred to earlier had not been filed along with the petition in
accordance with their interpretation of S.399 and Reg. 18. Section 399 of the
Act has replaced Section 153-C (3) of the Indian Companies Act, 1913 with                           C
some major differences. Section 153-C (3) of the 1913 Act itself provided that
the consent of the shareholders supporting the petition should be obtained
in writing'. Sub Section (3) of Section 399 of the 1956 Act, however, contains
no such requirement. It only speaks of "obtaining" of the consent . It does
not speak of consent in writing nor does it require any such writing to be
annexed with the petition. Many of the decisions cited by both the parties                          D
have turned on the wording of Section 153-C (3) of the 1913 Act such as
Makhan Lal Jain v. The Amrit Banaspati, Co. Ltd., AIR (1953) Allahabad 326
when in the context of Sub section 3 of Section 153-C (a) it was held:

          " .......... the law requires that the consent should be in writing, i.e., in
          the form of a document. Therefore, the document itself should prove                       E

"53C (3) No application under sub-section (i) ;hall be made by any member unless-

    (a)    in the case of a company having a share capital the member complaining-

          (i) has obtained the consent in writing of not less than one hundred in number            p
          of the members of the company or not less than one-tenth in number of the
          members, whichever, is less or.

           (ii) holds not less that one-tenth of the issued share capital of the company
           upon which all calls and other sums due have been paid; and

    (b) in the case of a company not having a share capital the m,c:mbcr complaining has
    obtained the consent in writing of not 1ess than one-fifth in number of the members,            G
    and where there are several persons having the same interest in any such application
    and the condition specified in clause (a) or clause (b) of this sub-section is satisfied with
    reference to one or more of such persons, any one or more of them may, with the
    permission of the court, make the application on behalf of, or for the benefit of, all
    persons so interested, and the provisions of rule 8 of Order 1 of the First Schedule to
    the Code of Civil Procedure, 1908 (Act V of 1908), shall apply to any such application
    as it applies to any suit within the meaning of that rule.                                      H
    666                         SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A              that the consent has been given. No evidence, either by way of
               affidavit or of oral sworn statement in Court, can be given to prove
               that such consent was given".

          The reasoning in this decision would no longer be apposite having
    regard to the change in the language in Section 399 (3) and the shifting of
B the requirement from the Act to Regulation 18 of the Company Law Board
    Regulations 1991 (hereinafter refer to as the 'Regulations'). Regulation 18 also
    does not itself contain the requirement for filing the consent letters2 • The
    requirement has been prescribed in Annexure III, which is referred to in
    Regulation 18. Serial No.27 of Annexure III contains a list of several documents
C required to be annexed to petitions relating to the exercise of powers in
  . connection with prevention of oppression or mismanagement under Sections
    397, 398, 399(4), 400, 401, 402, 403, 404 and 405. The documents required to
    be annexed to such petition include "where the petition is prescribed on
    behalf of members, the letter of consent given by them". Other documents
    required to be filed include "documents or other evidence in support of the
D statement made in the petition, as are reasonably open to the petitioner(s)",
    as also "three spare copies of the petition". These requirements can hardly
    be said to be mandatory in the sense that non-compliance with any of them
    would ipso facto result in the dismissal of the petition. Apart from this,
    Regulation 18 itself is subject to the powers of CLB under Regulations 44 and
E 48. These read as follows:
               44.   Saving of inherent power of the Bench:- Nothing in these rules
                     shall be deemed to limit or otherwise affect the inherent power
                     of the Bench to make such orders as may be necessary for the
                     ends of justice or to prevent abuse of the process of the Bench.
F              48.   Power to dispense with the requirement of the regulations.-
                     Every Bench shall have power for reasons to be recorded in
                     writing, to dispense with the requirements of any of these
                     regulations, subject to such terms and conditions as may be
                     specified.

G         Given these'powers in the CLB, we cannot hold that non-compliance
    with one of requirements in Sri. No.27 in App. III of Reg. 18 goes to the very
    root of the jurisdiction of the CLB to entertain and dispose of a petition under

    1(18)    Documents to accompany the petition-(!) A petition shall be accompanied by
            documents as prescribed in Anncxure III and shall be accompanied by an index of
H           Documents.
    J.P. SRIVASTAVAANDSONS PVT. LTD. v. GWALIOR SUGAR CO. LTD. [RUMA PAL,J.]667

Sections 397, 398. All that regulation 18 requires by way of filing of documents,    A
is proof that the consent of the supporting shareholders had in fact been
obtained prior to the filing of the petition in terms of Section 399(3). It cannot
be gainsaid that it is open to the persons opposing the application under
Sections 397 and 398 to question the correctness of an assertion as to
consent made by the petitioner. It is equally open to the petitioner to provide
evidence in support of the plea taken in the petition. If of course the objection    B
to the maintainability is taken by way of demurrer, the CLB can decide the
issue on the basis of the averments contained in the petition alone, accepting
the pleas therein as correct. But where the CLB takes into consideration facts
outside the .Petition as it has done in this case, it cannot foreclose the
petitioner from supporting its case in the petition on the basis of evidence         C
not annexed thereto. Since the CLB calculated the total shareholding of the
company including preference shares based on the allegations contained in
the respondent No.S's application, it was for the CLB to determine the issue
of actual prior consent on evidence. This view finds support from Reg. 24
which says:
                                                                                     D
        24. Power of the Bench to call for further information/evidence:- The
        Bench may, before passing orders on the petition, require the parties
        or any one or more of them, to produce such further documentary or
        other evidence as the Bench may consider necessary.-

             (a) for the purpose of satisfying itself as to the truth of the         E
                 allegations made in the petition; or

             (b) for ascertaining any information which, in the opinion of the
                 Bench, is necessary for the purpose of enabling it to pass
                 orders on the petition.
                                                                                     F
      In P. Punnaiah v. Jeypore Sugar Co Ltd., AIR (1994) SC 2258, the
member of the c·ompany was the daughter, Rajeshwari. She was sought to be
represented as a petitioner in an application under Ss. 397 and 398 by her
father acting as her agent. The respondents objected saying that this was no
consent at all. With a view to. counter-act the objection taken by the
respondents, the appellants filed an affidavit of Smt. Rajeshwari wherein she        G
affirmed that she had authorized her father to act on her behalf as her G.P.A
in that behalf and to take all such steps as he deemed proper to protect her
interest. This Court rejected the objection raised by the respondents.

      Hansaria, J. rested his concurrence with the view on the affidavit filed       H
    668                     SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A by Rajeshwari subsequent to the filing of the petition. He said: " .
            " ................ As Smt. Rajeshwari made her position clear in the affidavit
            filed in the High Court, I do think she had authorized her father to act
            on her behalf in the matter at hand, and the application under Section
            397/398 of the Companies Act, 1956, as filed in the Court, ought to
B           be taken as one to which she had consented".

          The finding of the CLB and the High Court to the effect that the petition
    of the appellant deserved to be rejected only because the letters of consent
    had not been annexed to the petition was therefore incorrect. What the CLB
    and the High Court should have done was to have satisfied themselves that
C   the consent had in fact has been given prior to the filing of the petition. There
    is nothing either in the orders of CLB or the High Court which could even
    remotely be construed as a rejection of the affidavits, resolution, etc. filed by
    Nini Srivastava to show that prior consent had in fact been obtained. We may
    also note the unrebutted specific averment by the petitioners to the effect that
D   V.K. Srivastava was personally present throughout the litigation.

           Having decided that Nini Srivastava could have been and was authorized
    to act on behalf of the Trust, the next question is, did Nini Srivastava file the
    petition on behalf of the Trust? The CLB has noted that the cause title to the
    petition showed that she had filed the petition for herself and as Trustee of
E   the Trust. According to the respondents, this was again an interpolation. But
    the CLB has given no such finding nor has the High Court. Besides the
    petitioners had said 'the petitioners are holding some preference shares aim'.
    It is admitted that Nini Srivastava holds 50 preference shares in her personal
    name. However, the use of the plural is significant. It is not the case of the
F   respondents that any other individual petitioner holds preference shares
    except for the Trust. Then again in paragraph 2, even if one were to ignore
    the phrase 'plus 1029 preferential shares', it has been specifically averred that
    'the petitioners form the group headed by J .K. Srivastava'. There is no
    dispute that the "group of J.K. Srivastava" holds the requisite percentage of
    shares for maintaining proceedings under Ss. 397, 398 and that the Trust falls
G   within that group. Again in paragraph 6.2 of the petition there is a categoric
    reference to the I 029 redeemable preference shares held by the Trust as being
    held by the petitioners. This was also how the respondents understood the
    petition. fn an application filed by them on 19th March, 1988 under Reg.44
    they said:

H               "That shareholding of the respondent company is divided mainly
    J.P. SRIVASTAVA AND SONS PVT. LTD. v. GWALIOR SUGAR CO. LTD. [RUMA PAL,J.J669

        between two groups namely, H.K. Srivastava Group in the Management           A
        holding about 30% Equity Shares and I 029 Redeemable Cumulative
        Preference Shares and the J.K. Srivastava group holding about 12%
        Equity Shares and 1029 Redeemable Cumulative Preference Shares.......... :

            That it is apprehended that J.K. Srivastava group i.e. the Petitioners
        holding about 12% Equity Shares and 1029 Redeemable> Cumulative              B
        Preference Shares may obstruct the Resolution for enhancement of
        Authorised Shares Capital.."

      It appears to us that the intention of the petitioners undoubtedly was
to represent the J.K. Group which admittedly has the qualifying number of
shares, although the expression of such intention was not as clear as it             C
should have been.

      All the fora below have not proceeded on the basis that the pleading
in the petition did not reflect the intention. They have rested their findings
on the law as perceived by them that the Trust could not have been represented       D
by one co-trustee. The perception as we have held was erroneous.

      The other ground on which the fora dismissed the petition was that the
beneficial interest in 551 shares of the I 029 held by the Trust had already
vested in the beneficiaries prior to the filing of the petition complaining of
mismanagement and oppression. This is again an incorrect legal proposition.          E
An equitable or beneficial interest in shares does not make the owner of the
interest a member of the company. [See Mis Howrah Trading Co. v.
Commissioner of Income Tax AIR (1959) SC 775; Killick Nixon Ltd v. Bank
of India, 1985 (57) Com. Cases 832] Therefore, even assuming that in terms
of the Trust Deed the shares had devolved on the beneficiary of the Trust,
this would not mean that the owner of the shares as registered with the              F
company would not be competent to file the petition under Sections 397 and
398.

       The object of prescribing a qualifying percentage of shares in petitioners
and their supporters to file petitions under Sections 397 and 398 is clearly to
ensure that frivolous litigation is not indulged in by persons who have no           G
real stake in the company. However it is of interest that the English Companies
Act contains no such limitation. What is required in these matters is a broad
commonsense approach. If the Court is satisfied that the petitioners represent
a body of shareholders holding the requisite percentage, it can assume that
the involvement of the company in litigation is not lightly done and ·that it        H·
    670                    SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A   should pass orders to bring to an end the matters complained of and not
    reject it on a technical requirement. Substance must take precedence over
    form. Of course, there are some rules which are vital and go to the root of
    the matter which cannot be broken. There are others where non-compliance
    may be condoned or dispensed with. In the· latter case, the rule is merely
    directory provided there is substantial compliance with the rules read as a
B   whole and no prejudice is caused. [See: Pratap Singh v. Shri Krishna Gupta,
    AIR (1956) SC 140] In our judgment, Section 399(3) and Regulation 18 have
    been substantially complied with in this case.

          The decision of the Division Bench of the High Court is, therefore, set
C aside. The matter must be remanded to the Single Judge since he had also
    dismissed the appeals preferred by the respondents from the decision of the
    CLB consequent upon the dismissal of the appellants' appeal under Section
    IOF of the Act. The appeal is, therefore, allowed and the matter remanded
    back to the Single Judge for disposal of all the appeals which stand revived
    by reason of this order. The costs will follow the cause.
D
    vs                                                      Appeal disposed of.