JUDGMENT
Gadgil, J.
1. This is an appeal filed by the defendants in S.C.No. 6778 of 1983, against an order granting an ad interim injunction. This order was passed in Notice of Motion No. 6 6107 of 1983, taken out in the abovementioned suit.
2. The impugned order is an ex parte ad interim injunction. The contention of the appellant is that this injuction is so palpably untenable that the appellant would be entitled to make successful grievance about it in this appeal. shri Setalwad for the appellants submitted that, according to him, a mere reading of the plaint as also the affidavits in support of the notice of motion would show that the suit is nothing but the misuse of the process of law. He also urged that consequently no injuction ought to have been issued in such a litigation. As against this, it was contended on behalf on behalf of the respondent-plaintiff that the plaintiff has a cause of action as mentioned in the plaint and that there is nothing improper on the part of the plaintiff to file the suit to the type which is before me in this appeal. It would, therefore, be necessary for me consider the rival contentions in order to find out as to whether a prima facie case is made out by the plaintiff for getting an ex parte ad interim injunction. However, I would like to make it clear that observations in this judgment are primarily made with a view to decide this interim proceeding about the correctness or otherwise of the grant of ex parte, ad interim injunction.
3. Before going into the merits of the appeal, I would like to consider the preliminary objection raised on behalf of the respondent that an ex parte ad interim injunction is not appealable. Order XLIII, r.1 (r), provides that the order under r. 1, 2, r, 2A, r. 4. or r. 10 of Order XXXIX is appealable. Here the relevant rule is r. 1 and r. 2. IT was contended by Shri Gursahani for the respondent that an ex parte ad interim injunction is liable to be discharged, varied or set aside under r. 4 and such an order is to be made by the court which has originally granted the injunction, provided, of course, the aggrieved party satisfies the court that the ex parte injunction deserves to be set aside. Relying upon r. 4 Shri Gursahani contended that the only remedy that is available to the aggrieved party about the grant of an ex parte ad interim injunction is to place his case before that very court under r. 4 and not to come in appeal. He has relied upon the decisions of the Madras High Court and the Karntaka High court for the purpose of contending that such an ex parte ad interim injunction is not appealable. The Madras High court in the case of Abdul Shukoor Sahib v. Umachander, AIR 1976 Mad, 350, has held that such an order is not appellable. I would like to reproduce the relevant head note which reads as follows :
” No appeal will lie against an ex parte ad interim injunction but the specific remedy available in order 39, rule 4, CPC, has to be availed of by the interdicted party so that a final reasoned order could be obtained in the trial court itself against which the Code has provided an obvious appeal under O. 43, r. 1(r), CPC.”
4. Similar view has been taken by the Karnataka High court in the case of Parijatha v. kamalaksha Nayak, .
5. Shri Setalwad for the appellant, however, urged that the above mentioned decision not lay down correct principles of law. He relied upon the judgment of the Full Bench of the Allahabad High Court in the case of Zila Parishad v. R.R.Sharma, , wherein it is laid down that the ex parte order issuing temporary injunction is appealable under O. 43. r. 1(r). It is also material to note that this court had an occasion to consider the said point in the case of Sk. jusa v. Ganpat Dagdu Gire, , wherein it was held that an appeal against an order granting temporary injunction is maintainable., It was also found that the fact that the aggrieved party had not approached the trial court to show cause against this ex partner order would not render the appeal incompetent. In my opinion, my opinion, in view of this decision of this High court, it will not be necessary to consider the decision of the other High Courts. Consequently, it would be very difficult for the respondent to contend that the impugned order is not appealable.
6. For considering the merits of the appeal, it will be necessary to narrate a few facts. There are two companies incorporated under the companies ACt. The Brook Bond India Ltd. (hereinafter referred to as “the Brooke Bond”) is one of such companies While Centron Industrial Alliance Ltd. (hereinafter referred to as “the centron”) is another company. The registered offices of the brooke Bond and the Centron are, respectively, at Calcutta and Bombay.
7. Section 391 of the companies Act deals with the power of a company to compromise or to make arrangement with its creditors and the members. Whenever an application for this purpose is made to the court, the court directs or orders that a meeting of the concerned persons be called and it is necessary that a resolution about the compromise or a arrangement is passed in that meeting with requisite strength as mentioned in sub-s. (2) of s. 391. Such a compromise or arrangement, if sanctioned by the court, would be binding on all. Sub-s. (3), however, provides that the sanction by the court shall have no effect until a certified copy of the order has been field with the Registrar. The more relevant companies. If in an application under s. 391 there is such a proposal of amalgamation, the court, while sanction the proposal or some time later, has to pass a separate order for making provisions for certain matters enumerated in section 394. Item at serial no., (b)(ii) of s. 394(i) is relevant and it reads as follows :
“the allotment or appropriation by the transferee company of any shares, debentures, policies, or other like interest in that company which, under the compromise or arrangement, are to be allotted or appropriated by that company to or for any person.”
8. It is common ground that applications under s. 391 read with s. 394 of the Companies ACt have been made both by the Brooke Bound and the Centron. The Application of the Brooke bond is pending in the Calcutta High Court while the application of the Centron is pending in this court. In both these applications a request is made for the sanction to the amalgamation of the two companies. At the time of the hearing of this appeal, a scheme prepared by the Centron for this amalgamation with the Brooke Bond was made available for my perusal and learned advocates appearing on behalf of both the sides drew my attention to the relevant clauses of the scheme. As per the scheme, the term “the transfer date” means the close of the business on June 30, 1980, or such other date as the High Court of bombay or Calcutta may direct. Clause 6 of the scheme, amongst other things, provides that upon the transfer of the Centron, equity shares, in the brooke Bond will be issued and allotted to the Centron Shareholders and they shall rank pari passu with the existing equity shares of the Brooke Bond but will not be eligible for any dividend for the period ending on June 28, 1980. Clause 12 provides that the implementation of the scheme is conditional upon obtaining of approvals of certain authorities and the amalgamation shall be deemed to be effective on the date on which the last of such approvals would be obtained. It is common ground that the scheme for the amalgamation of the Centron with the Brooke Bond is not as yet sanctioned. Consequently, the said scheme has not as yet become effective.
9. The annual general meeting of the Brooke Bond was scheduled to be held at Calcutta on December 2, 1983. In that meeting the decision on various subjects was to be taken such as accepting the directors’ report, auditors’ report, adopting the accounts including the balance- sheet , the profits and loss accounts, declaration of dividend, etc. In suit no. 6778 of 1983, filed in the trial courts, the plaintiff contended that the Brooke Bond was not entitled to hold such an annual general meeting or to take decision in the subjects mentioned above. It is in this suit that the notice of motion was taken out for restratining the Brooke Bond from holding a meeting and passing resolutions on the above-mentioned subjects.
10. The plaintiff-respondents has alleged in the plaint that though he is a member of the Centron, he has become a member of the Brooke Bond on accounts of certain averments that are made in the plaint. In substance, those averments are with respect to the amalgamation scheme passed by the Brooke Bond and the Centron and the pendency of the applications under ss. 391-394 of the Companies Act for sanction of the scheme by the courts. It is with the help of these averments that the plaintiff has contended that the is a shareholder of the Brooke Bond. Inn para 2 he was contended that under the Companies act, he, as a member of the brooke Bond, is entitled to a notice of an annual general meeting. he has pleaded that he has not been given any such notice and, consequently, the meeting would be bad. Similar averments are made in paras. 6 & 7 of the plaint. In paras. 4 & 5, it is alleged that the directions, who are expected to act as trustees, were trying to get the accounts of the of the company adopted by misleading the shareholders. para. 9 refers to the transfer date as per the scheme, viz., june 30, 1980, and it also states that under the amalgamation scheme the allotment of the shares was in the ratio of one Brooke Bond share for five Centron shares. The Plaintiff’s grievance is that with effect from June 30, 1980, he other members of Centron would be entitled for the dividend from the Brooke Bond and that he would not get any such dividend as he has not been shown as a member of the Brooke Bond company. He has pleaded that the Brooke Bond would pass certain resolutions covering more than three cores and that in this way his rights are likely to be prejudicial affected. In paras. 11 & 12 of the plaints, the plaintiff has reproduced certain recitals in the affidavits made on behalf of the Brooke Bond in the above- mentioned applications under ss. 391-394 of the companies Act. I would refer to those recitals in detail as the grievance of the plaintiff is that the relevant reproductions from the affidavits courts.
11. The relevant averments in the plaint are thus mentioned above. It was contended by Shri Setalwad that by no stretch of imagination the plaintiff can be said to be a member of the Brooke Bond. He drew my attention to s. 41 of the Companies Act, which defines the turn “members”, Sub-s. 1 deals with the members who the subscribers of the memorandum of a company and sub.-s. 2 reads we follows :
“Every other person who agree in writing to become a member of a company and whose name is entered in its register of members, shall be a member of the company “.
12. It is thus clear that ordinarily nobody can claim may any rights as a member of the company unless his name is entered in the registered do membership. Shri Setalwad contended that the various narrations or averments in the plaint show as to how the plaintiff has misled the court by suggesting that the plaintiff is a meeting It is needles to say that the mere pendency of amalgamation proceedings in the court would not enable a member of a transferor-company to become a members of the transferee-company, i.e., Brooke Bond. The proposal of amalgamation is required to be sanctioned by the Court. Even after such sanction, the scheme does not become immediately operative as there are certain approvals that are needed.
13. Another grievance of Shri Setalwad is with respect to the contents of paras. 11 & 12 of the plaint. in Para. 11., the plaintiff has alleged that, not to leave any doubt as to the operation of the scheme and its binding character, Kamal Kanjilal, the senior general manager of the Brooke Bond has made an affidavit in this court (in Company Petition no. 133 of 1983) After saying so, the plaintiff has reproduced a part of the affidavit. The said reproduction reads as follows :
14. “I submits that the creditors and shareholders of Centron having voted in favour of the said Brooke Bond scheme with the statutory majorities, the said Brooke Bond scheme constitutes a binding contract between the secured creditors, unsecured creditors, shareholders of Central and Centron itself on the one hand and Brooke Bond……….. “.
15. My attention is drawn to the fact that the abovementioned reproduction is not complete inasmuch as after the word “Brooke Bond”, there is also a statement “subject to the sanction of the court”. It was contended by Shri Setalwad that omission to mention these words “Subject to the sanction of the court” is a purposeful one in order to create a wrong impression in the mind of the court that the scheme has become effective and operative.
16. In para. 12 of the plaint, the plaintiff has alleged that said Kamal Kanjilal has stated a particular thing in his affidavit and, thereafter, the relevant part of the affidavit is reproduced in inverted commas. My attention is drawn of the fact that this reproduced part is not in fact a correct reproduction. The relevant part has not been quoted correctly, and that in fact it reads in a different manner. by reference to the copy of the affidavit, it is quite clear that there was no correct reproduction and as a matter of fact was there was a misquoting of the affidavit.
17. The net position, therefore, is that here is a plaintiff who, so long as the amalgamation scheme is not sanctioned and is not made effective, has no concern with the brooke Bond. In that Background it is difficult to understand as to how the plaintiff can make a grievance that he was not given any notice of the annual general meeting of the Brooke Bond which was scheduled to be held on december 2, 1983. Secondly, prima facie, the plaintiff has no interest and no concern with the passing of accounts as well as the passing and adopting balance-sheep including the profit and loss accounts. At the time of the arguments in this appeal, the learned advocate appearing on behalf of the respondent-plaintiff frankly stated before me that the plaintiff would not be able to call himself as a member of the Brooke Bond and, consequently, he would not be entitled to any notice of the annual general meeting. It was, however, submitted on behalf of the respondent-plaintiff that the plaintiff would be a shareholder of the Brooke Bond from June 30, 1980, and that the plaintiff shall rank pari passu in all respect with the shareholders of the Brooke bond. It was also contended that in this way the plaintiff would be interest in the accumulated reserves of the Brooke Bond. A grievance was made before me that if these reserves are spent by the Brooke Bond the plaintiff’s rights would be prejudicially affected in case the amalgamation scheme is sanctioned. Much reliance was placed on the fact that under the scheme a transfer date has been fixed as June 30, 1980. However, this would not be correct as the scheme states that the transfer date would be June 30, 1980 or such other date as the High Courts of Bombay and Calcutta may direct. Inn my opinion, the plaintiff’s contention cannot be accepted that with effect from June 30, 1980, he shall rank pari passu with the rest of the shareholders to the Brooke Bond. This is obviously so far two reasons. In the facts place, the date June 30, 1980, is not an irrevocable date inasmuch as the High Court of Bombay and Calcutta can fix any other date for transfer. The other important reason is that by no stretch of imagination the plaintiff can have any interest in the affairs of the brooke Bond so long as the amalgamation scheme has not been sanctioned. Shri Setalwad has criticised the conduct of the plaintiff by submitting that the he has made a micheivour attempt for seeking certain temporary orders particularly when the plaintiff had no legal basis. He also urged that it is for this reason that no ex parte ad interim injunction could have been claimed by the plaintiff or could have been granted by the court. He, therefore, urged that the impugned ex parte order deserves to be set aside. He also submitted that it is really a pity that the plaintiff has misled the court and got an order by making certain vague averments in the plaint and more particularly by incorrectly reproducing a part of the affidavit of Kamal Kanjilal.
18. I have already observed that the contention of the respondents plaintiff is that the plaintiff is that the plaintiff would be entailed to a limited injections so as to restrain the brooke Bond from paying any dividend. The basis for such submissions is that with effect from June 30, 1980, the plaintiff would have right to become a member of the Brooke bond and that those have a right will be prejudicially affected if the Brooke Bond will spend the reserves on distribution of dividends. I am not able to understand this sub- missions particularly when the plaintiff is not a member of the brooke Bond and, consequently, he has no right in the management of the company in his alleged capacity as a member.
19. Thus, considering the rival contentions of the parties, I am satisfied that the plaintiff not made out prima facie case in the plaint and that the plaint prima face does not disclose any cause of action. The appeal, therefore, deserves to be allowed.
20. The appellant has filed to civil applications to which a passing reference may be made. Civil Application no. 4161 of 1983 is for the purpose of striking out some part of the pleading on the ground that it is frivolous or vexatious and for rejection of the plaint under O. VII, r. 11. There is also a prayer for compensatory costs. In Civil Application no. 4163 of 1983, the plaintiff has prayed for compensatory costs under s. 95 of the CPC. Both these applications have been allowed to be withdrawn with liberty to the defendant- appellant to make similar prayers in the trial court. It is needless to say that such a prayer, if made by the defendant in the trialql court, will be appropriately dealt with by the trial court on the merits of those prayers. For the above reasons the appeal succeeds. The impugned order of ex parte ad interim injunction dated December 1, 1983, in notice of Motion No. 6107 of 1983 is set aside and the said notice of motion stands dismissed. The respondents to pay to the appellant the costs of this appeal.
21. Appeal allowed.
