Holding

A person who, although not entered in the register of members, is recognized by the company as a shareholder through conduct and agreement is a deemed member and may maintain petitions under Sections 397 and 398 of the Companies Act, 1956.

Summary

The dispute arose when Dhananjay Pande (respondent No.1) invested substantial funds in Dr. Bais Surgical and Medical Institute Pvt. Ltd and was appointed Managing Director, but the company failed to enter his name in the register of members despite allotting shares. Pande filed petitions under Sections 397 and 398 of the Companies Act, 1956 alleging oppression and mismanagement, and the Company Law Board treated him as a member, ordering share allotment or refund. The appellants challenged his locus standi, arguing that without formal entry in the register he could not be a "member" under Section 41. The Supreme Court examined the interplay between the inclusive definition of "member" in Section 2(27) and the procedural requirements of Section 41, emphasizing the equitable nature of Sections 397/398 and the purpose of protecting minority shareholders. Relying on the factual matrix—letters describing him as a co‑owner, his managerial role, acceptance of his investment, and the company's conduct—the Court held that he was a deemed member and could invoke the remedies. Consequently, the Court dismissed the appeals, affirming the High Court and Company Law Board decisions and ordered the deposited amount to be released to the respondent.

Issues considered

Whether a person who has not been entered in the register of members can be deemed a "member" for the purpose of invoking Sections 397 and 398 of the Companies Act, 1956.
Whether the definition of "member" in Section 2(27) overrides the procedural requirements of Section 41 when determining locus standi under Section 399.

Legislation cited

Companies Act, 1956s. 2(27), s. 397, s. 398, s. 399, s. 41

Headnote

Issue for Consideration Whether, in the absence of a formal entry of the respondent no.1’s name in the register of members, he could nonetheless be regarded as a “member” of the appellant-company so as to invoke the jurisdiction of the Company Law Board u/ss.397 and 398 Act, 1956. Headnotes† Companies Act, 1956 – ss.2(27), 41, 397, 398, 399 – “member” – High Court and the Company Law Board upheld respondent no.1 as a deemed member of the company, entitled to maintain a petition u/ss.397 and 398 – Whether the

Subjects

MemberRegister of membersFormal entry of name in register of membersAbsence of name in register of membersMember of companySections 397 and 398 of the Companies Act, 1956Oppression and mismanagementDeemed member of companySection 2(27) of the Companies Act, 1956Section 41 of the Companies Act, 1956Acquisition of membershipRecognition of proprietary interest in companyStakeholderShareholder statusEquitable interpretationMinority shareholders

Judgment

[2026] 5 S.C.R. 347 : 2026 INSC 447

Dr. Bais Surgical and Medical Institute Pvt. Ltd & Ors.
v.
Dhananjay Pande
(Civil Appeal No. 8973 of 2010)
04 May 2026
[Pamidighantam Sri Narasimha and Alok Aradhe, JJ.]

Issue for Consideration
Whether, in the absence of a formal entry of the respondent
no.1’s name in the register of members, he could nonetheless be
regarded as a “member” of the appellant-company so as to invoke
the jurisdiction of the Company Law Board u/ss.397 and 398 of
the Companies Act, 1956.

Headnotes†
Companies Act, 1956 – ss.2(27), 41, 397, 398, 399 – “member” –
High Court and the Company Law Board upheld respondent
no.1 as a deemed member of the company, entitled to maintain
a petition u/ss.397 and 398 – Whether the respondent no.1
could be regarded as a “member” of the appellant-company so
as to maintain a petition u/ss.397 and 398, despite the absence
of formal entry of his name in the register of members at the
relevant point of time:
Held: Yes – The requirement that an agreement to become a
member be “in writing”, introduced by the Amendment Act of 1960,
was intended to ensure reliable proof of consent and to prevent
fraudulent inclusion of names in the register, and not to impose
entry in the register as the sole or exclusive mode of acquiring
membership – The equitable foundation of ss.397 and 398 must
be a guiding factor to not construe the expression “member” in
an unduly restrictive or technical manner confined solely to formal
entry in the register, frustrating the remedial purpose underlying
the legislative scheme – A conjoint reading of ss.397, 398 and
399 indicates that the expression “member” cannot be construed
in isolation or confined to the technical formulation contained
in s.41(2) – Rather, the broader definition embodied in s.2(27)
assumes significance in determining whether a person is entitled
to invoke the remedies contemplated under the Act – It would
348 [2026] 5 S.C.R.

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be contrary to settled principles of interpretation to attribute to
the Legislature an intention to create conflicting meanings of the
same expression within the statute – The expression “member”,
when employed in the context of remedies u/ss.397 and 398, must
therefore be construed with reference to the wider definitional
framework provided in s.2(27) and allied provisions governing the
rights of members – The conclusion treating respondent no.1 as a
member was founded upon a consistent and cumulative chain of
factual circumstances demonstrating recognition of his proprietary
interest in the appellant company – On facts, respondent no.1
was consistently treated as a stakeholder having interest in the
appellant company rather than as a mere investor or creditor –
High Court also relied upon the financial and operational conduct
of the company, which showed that respondent no.1’s investment
was accepted and utilised for the expansion of the company’s
business, resulting in increased authorised share capital and
profitability – Respondent no. 1 had, in substance, acquired the
status of a shareholder whose interest stood recognised by the
company over a considerable period – High Court was justified
in affirming the finding that respondent no.1 was entitled to be
treated as a member for the purposes of maintaining proceedings
u/ss.397 and 398. [Paras 21, 23, 29-31]

Companies Act, 1956 – ss.2(27), 41, 397, 398, 399 – “member” –
Inclusive definition of “member” u/s.2(27) vis-à-vis s.41 dealing
with acquisition of membership – Whether the expression
“member” as appearing u/ss.397 and 398 is to be construed
strictly in accordance with s.41 or it must be understood in
the broader sense contemplated u/s.2(27) – Meaning and
scope of the expression “member”, as occurring in ss.397,
398 and 399:
Held: The statutory framework under the Act, 1956 draws a clear
distinction between the inclusive definition of the term “member”
contained in s.2(27) and the provisions governing acquisition of
membership set out in s.41 – s.2(27) employs language of wide
amplitude and, in relation to a company, embraces every category
of member, subject only to the limited exclusion of a bearer of a
share-warrant issued u/s.114 of the Act – Whereas, s.41 operates
in a different sphere and prescribes the recognised modes by which
membership may arise – It contemplates, first, deemed membership
in the case of subscribers to the memorandum; secondly, persons
[2026] 5 S.C.R. 349

Dr. Bais Surgical and Medical Institute Pvt. Ltd & Ors. v.
Dhananjay Pande

who agree in writing to become members; thirdly, entry of a person’s
name in the register of members, which ordinarily constitutes
conclusive evidence of membership; and lastly, persons reflected as
beneficial owners in the records of a depository – The requirement
that an agreement to become a member be “in writing”, introduced
by the Amendment Act of 1960, was intended to ensure reliable
proof of consent and to prevent fraudulent inclusion of names in
the register, and not to impose entry in the register as the sole or
exclusive mode of acquiring membership – A more fundamental
consideration arises from the nature of jurisdiction conferred u/
ss.397 and 398, which has consistently been recognised as
equitable in character – These provisions, situated in Chapter VI,
are designed to afford remedies to minority shareholders against
acts of oppression and mismanagement – The entitlement to
invoke such jurisdiction is regulated by s.399, which prescribes
the eligibility criteria for maintaining an application u/ss.397
and 398 – Accordingly, the relevant enquiry, while determining
maintainability, must center on whether the applicant satisfies
the conditions prescribed u/s.399, rather than on a mechanical
application of the procedural requirements found in s.41(2) – The
equitable foundation of ss.397 and 398 must be a guiding factor
to not construe the expression “member” in an unduly restrictive
or technical manner confined solely to formal entry in the register,
thereby frustrating the remedial purpose underlying the legislative
scheme. [Paras 21, 22]

Case Law Cited
M/s World Wide Agencies Pvt. Ltd. and Anr. v. Margarat T. Desor
and Ors [1989] 2 SCR 545 : (1990) 1 SCC 536; Needle Industries
(India) Ltd. & Ors. v. Needle Industries Newey (India) Holdings
Ltd. and Ors. [1981] 3 SCR 698 : (1981) 3 SCC 333 – relied on.
Balkrishan Gupta and Ors. v. Swadeshi Polytex Ltd. and Anr [1985]
2 SCR 854 : (1985) 2 SCC 167; Nanalal Zaver and Anr. v. Bombay
Life Assurance Co. Ltd. and Ors. [1950] 1 SCR 391; Severn Trent
Water Purification Inc. v. Chloro Controls (India) Private Ltd. and
Anr. (2008) 4 SCC 380 – referred to.
Shri Balaji Textile Mills Pvt. Ltd. and Anr. v. Ashok Kavle and Ors.,
1988 SCC OnLine Kar 80; Umesh Kumar Baveja and Ors. v.
IL and FS Transportation Network Ltd. and Ors., 2013 SCC OnLine
Del 6436; Shri Gulabrai Kalidas Naik and Ors. v. Shri Laxmidas
350 [2026] 5 S.C.R.

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Lallubhai Patel of Baroda and Ors., 1977 SCC OnLine Guj 47;
S.V.T. Spinning Mills P. Ltd. and Ors. v. M. Palanisami and Ors.,
2009 SCC OnLine Mad 3260 – referred to.

Books and Periodicals Cited
Buckley on Companies Acts, 2000 edition.

List of Acts
Companies Act, 1956.

List of Keywords
“Member”; Register of members; Formal entry of name in register
of members; Absence of name in register of members; Absence of
formal entry of name in register of members; Member of company;
Member for purposes of maintaining proceedings under Sections
397 and 398 of the Companies Act, 1956; Sections 397 and 398
of the Companies Act, 1956; Oppression and mismanagement;
Deemed member of company; Section 2(27) of the Companies
Act, 1956; Section 41 of the Companies Act, 1956; Acquisition
of membership; Recognition of proprietary interest in company;
Stakeholder; Interest in company; Status of a shareholder acquired;
Interest recognised by company; “in writing”; Fraudulent inclusion
of names in register of members; Mode of acquiring membership;
Minority shareholders; Failure to issue share certificates; Increase
in authorised share capital and profitability.

Case Arising From
C I V I L A P P E L L AT E J U R I S D I C T I O N : C i v i l A p p e a l N o .
8973 of 2010
From the Judgment and Order dated 08.06.2009 of the High Court
of Judicature at Bombay at Nagpur in CA No. 7 of 2004.
With
Civil Appeal No. 9456 of 2010

Appearances for Parties
Advs. for the Appellant(s):
Shyam Mehta, Sr. Adv., Gagan Sanghi, Varad Kilor, Ms. Farah
Hashmi, Rameshwar Prasad Goyal.
[2026] 5 S.C.R. 351

Dr. Bais Surgical and Medical Institute Pvt. Ltd & Ors. v.
Dhananjay Pande

Advs. for the Respondent(s):
Mrs. Haripriya Gopal Shankar, Shailesh Mandiyal, Sr. Advs.,
Mugdha Pande, Shiv Vinayak Gupta, Ms. Anushka Rawal, Ms.
Himani Singh, Mrs. Bina Gupta, Tungesh, Deepak Sabharwal,
Anurya Sabharwal, Ms. Snigdha Jha.

Judgment / Order of the Supreme Court

Judgment

1. The present appeals arise from the judgments of the High Court1,
whereby the appeals preferred by the appellants against the orders
of the Company Law Board2 came to be dismissed. The principal
question which arises for consideration in these appeals is whether,
in the absence of a formal entry of the respondent no. 1’s name
in the register of members, he could nonetheless be regarded as
a “member” of the company so as to invoke the jurisdiction of the
Company Law Board under Sections 397 and 398 of the Companies
Act, 1956. The facts necessary for the adjudication of the present
controversy are set out hereunder.
2. Appellant no. 1 is a company incorporated on 14.11.1994. Appellants
no. 3 and 4 are its shareholders and directors. Appellant no. 2, along
with his wife, established and constructed a hospital intended to be
operated by appellant no. 1. The hospital commenced its operations
but, within a short span, encountered financial constraints. At that
juncture, respondent no.1 approached the appellants with a proposal
to infuse funds into the company, subject to the condition that he be
appointed as Managing Director and that the hospital be converted
into a specialized cardiac facility. Acting upon the said proposal,
respondent no.1 was appointed as Managing Director with effect
from 01.01.1998 for a period of five years, and the hospital was
thereafter converted into a heart institute.
3. It is the case of respondent no. 1, though disputed by the appellants,
that at a meeting of the Board of Directors held on 15.07.1999,

1 Vide judgement dated 08.06.2009 in Company Appeal No. 7 of 2004 and judgement dated 21.04.2010
in Company Appeal No. 9 of 2008.
2 Vide order dated 02.12.2004 in Company Petition No. 9 of 2001 and order dated 14.03.2008 in Company
Petition No. 1 of 2005.
352 [2026] 5 S.C.R.

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14,75,998 shares were allotted to him against the share application
money paid by him to the company. Subsequently, disputes arose
between the parties, culminating in a decision of the Board of Directors
to suspend respondent no. 1, inter alia, on account of mounting
liabilities of the company. In an attempt to resolve the disputes,
the parties participated in conciliation proceedings held between
27.05.2000 and 29.05.2000. Upon conclusion of the conciliation
proceedings, the order of suspension was withdrawn, and respondent
no. 1, in turn, withdrew from the day-to-day affairs of the company.
4. In January 2001, respondent no.1 instituted the first company petition
under Sections 397 and 398 of the Companies Act, 1956, alleging
acts of oppression and mismanagement on part of the appellants.
The principal grievance urged therein pertained to the failure of the
appellants to issue share certificates despite the receipt of share
application money by the company. At the threshold, the appellants
raised an objection to the locus standi of respondent no. 1 under
Section 399 of the Act, contending that he did not qualify as a
“member” so as to maintain a petition under Sections 397 and 398.
5. During the pendency of the above petition, respondent no. 1 withdrew
his offer to acquire shares of the appellant company owing to
inordinate delay in allotment. Furthermore, he instituted civil suits
seeking recovery of the share application money along with interest
thereon and recovery of money spent on supplying consumables to
the appellant company.
6. By order dated 02.12.2004, the Company Law Board allowed the
company petition, proceeding on the footing that respondent no. 1
was a member of the company, and directed the appellant company
either to allot shares corresponding to respondent no.1’s investment
or, in the alternative, to refund the invested amount together with
interest. Aggrieved by the treatment of respondent no. 1 as a member,
the appellants preferred an appeal on 13.12.2004. At this stage, it
may be noted, without disturbing the chronological narration, that
the said appeal came to be dismissed by the High Court vide the
impugned judgment dated 08.06.2009, wherein the preliminary
objection raised by the appellants regarding maintainability was
rejected. The reasoning adopted by the High Court will be adverted
to at a later stage, after setting out the relevant facts pertaining to
the connected proceedings.
[2026] 5 S.C.R. 353

Dr. Bais Surgical and Medical Institute Pvt. Ltd & Ors. v.
Dhananjay Pande

7. The second tranche of proceedings arose from a meeting of the
Board of Directors held on 25.12.2004, wherein the Board of the
appellant company allotted 14,75,998 shares to respondent no. 1
and also allotted shares to appellants nos. 2, 5, 6 and 7 against their
earlier investments. On the same day, appellant no. 2 was further
allotted 60,00,000 shares as consideration for the transfer of the
land and building in which the hospital was functioning, such transfer
being a pre-condition for execution of a Management Agreement
with Wockhardt Hospitals Ltd. The said allotment of 60,00,000
shares to appellant no. 2 was challenged by respondent no. 1 by
instituting a second company petition under Sections 397 and 398
of the Companies Act, 1956, dated 07.01.2005, inter alia, on the
ground that the allotment was intended to dilute his shareholding
from 49% to 15%. It was further alleged that the appellant company
was in the process of handing over complete control to Wockhardt
Hospitals Ltd., contrary to the interests of respondent no. 1 as well
as the company. By order dated 10.01.2005, the Company Law
Board directed the parties to maintain status quo with respect to
the property and shareholding of the company. During the pendency
of the proceedings, the appellants and Wockhardt Hospitals Ltd.
executed a Management Agreement on 02.03.2005, whereby the
management of the hospital was handed over to Wockhardt.
8. Subsequently, by order dated 14.03.2008, the Company Law Board
held that the allotment of shares to appellant no. 2 against the transfer
of property was oppressive in nature and that such allotment had
been affected with a view to deprive respondent no. 1 of the benefit
of the earlier order directing allotment of shares in his favour. The
Board further found that the manner in which the appellant company
entered into the Management Agreement with Wockhardt Hospitals
Ltd. was not proper. In view thereof, the second company petition
was disposed of with a direction to the appellants or Wockhardt
Hospitals Ltd. to purchase the shares allotted to respondent no. 1,
together with interest at the rate of 6% per annum from the date of
investment until the date of payment, on or before 31.07.2008, so
as to bring an end to the disputes between the parties. The said
order was assailed by the appellants in appeal, which came to be
dismissed by the High Court vide the impugned judgment dated
21.04.2010, upon holding that no substantial question of law arose
for consideration. The High Court observed that although shares
354 [2026] 5 S.C.R.

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had been allotted to respondent no. 1, the failure to issue share
certificates indicated an intention on the part of the appellants to
keep respondent no. 1 out of effective participation in the company
until the situation was altered through third-party intervention.
9. When the Special Leave Petition against said judgment came up for
hearing before this Court on 16.07.2010, it was directed to be listed
along with the main appeal. Subsequently, by order dated 02.08.2010,
this Court directed the appellants to deposit Rs. 2,59,18,525/- which
included interest at the rate of 6% up to 01.08.2009.
10. By order dated 18.10.2010, this Court admitted both the petitions
and they have now surfaced before us for final hearing.
11. We have heard Mr. Shyam Mehta, learned senior counsel appearing
on behalf of the appellants, and Mr. Shailesh Mandiyal and Mrs.
Haripriya Gopal Shankar, learned senior counsels appearing on
behalf of the respondent no. 1.

A. Submissions on behalf of the appellants:
12. Mr. Shyam Mehta, learned senior counsel, argued with sobriety
and persuasion. He has confined his submission to a neat question
of law relating to the scope and ambit of the expression ‘member’
appearing in Sections 397 and 398 of the Act, 1956, and even
we have confined our enquiry to that extent. Hence, the principal
controversy in the present case revolves around whether respondent
no. 1 could claim the status and entitlements of a member without
fulfilling the statutory requirements prescribed under the Act, 1956,
particularly Section 41 thereof.
12.1 Respondent no. 1 was never a member of the company
within the meaning of Section 41 of the Act, 1956. Learned
senior counsel submitted that it is the consistent position of
law that unless a person’s name is entered in the register of
members, such person can neither be treated as a member
of the company, nor can he exercise statutory rights available
exclusively to members.
12.2 Existence of membership constitutes a jurisdictional fact
for invoking the provisions relating to oppression and
mismanagement under Sections 397 and 398 of the Act, 1956.
Unless such jurisdictional fact is established, the Company
[2026] 5 S.C.R. 355

Dr. Bais Surgical and Medical Institute Pvt. Ltd & Ors. v.
Dhananjay Pande

Law Board could not have assumed jurisdiction to entertain
the petition. According to the appellants, respondent no. 1
approached the Company Law Board on the assertion that
shares had been allotted to him; however, he failed to produce
any documentary material evidencing such allotment or entry
of his name in the register of members.
12.3 Respondent no. 1 had, at an earlier stage, instituted a civil
suit seeking recovery of the amount allegedly invested by him
in the appellant company. Such conduct demonstrated that
respondent no. 1 himself did not consider his investment as
share capital, but treated the same as a recoverable debt. It
was contended that having once sought recovery of the amount,
respondent no. 1 could not have subsequently asserted rights
flowing from alleged membership.
12.4 Learned senior counsel emphasised that any conduct on the
part of the company or any form of recognition extended to
respondent no. 1 could not override the express statutory
requirements governing membership. In the absence of entry
of the respondent’s name in the register of members, it was
submitted that he unequivocally lacked the locus standi to
maintain a petition under Sections 397 and 398 of the Act 1956.
12.5 In support of his submissions, Mr. Mehta relied on the decisions
of this Court, particularly Balkrishan Gupta and Ors. v. Swadeshi
Polytex Ltd. and Anr.3, Nanalal Zaver and Anr. v. Bombay Life
Assurance Co. Ltd. and Ors.4, Severn Trent Water Purification
Inc. v. Chloro Controls (India) Private Ltd. and Anr.5 to the
effect that respondent no. 1 shall not be held to be a member
due to non-mentioning of his name in register of members.

B. Submissions on behalf of the respondent(s):
13. Per contra, learned senior counsels appearing on behalf of respondent
no. 1 supported the reasoning adopted by the Company Law Board
as affirmed by the High Court.

3 (1985) 2 SCC 167.
4 [1950] 1 SCR 391.
5 (2008) 4 SCC 380.
356 [2026] 5 S.C.R.

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13.1 Entry of a person’s name in the register of members is a
statutory obligation cast upon the company, which the appellant
company had failed to discharge despite receiving substantial
investment from respondent no. 1 and repeated requests made
by him for allotment of shares.
13.2 Appellants could not be permitted to take advantage of their own
failure to comply with statutory requirements by relying upon
a hyper-technical interpretation of the expression “member”.
13.3 Respondent no. 1 had invested substantial amounts in the
company and such investment had been accepted and
utilised by the company in its business operations. In these
circumstances, it was urged that the company could not
deny respondent no.1’s entitlement to membership merely
on account of its own omission to complete the formal entry
in the register of members.
13.4 Accordingly, it was submitted that the findings recorded by the
Company Law Board and affirmed by the High Court were
justified both on facts and on law, and that no interference
was warranted.
13.5 In support of his submissions, reliance has been placed on
Shri Balaji Textile Mills Pvt. Ltd. and Anr. v. Ashok Kavle and
Ors.6, M/s World Wide Agencies Pvt. Ltd. and Anr. v. Margarat
T. Desor and Ors.7, Umesh Kumar Baveja and Ors. v. IL and
FS Transportation Network Ltd. and Ors.8 and other precedents.

Analysis:
14. By the impugned judgement dated 08.06.2009, the High Court
dismissed the appeal by observing that the cumulative facts and
circumstances of the case regarding treatment of respondent no. 1
and his investment by the appellant company, strongly favours the
conclusion that respondent no. 1 is entitled to be treated as a member.
The state of affairs that prevailed on the High Court and the Company
Law Board alike to uphold respondent no. 1 as a deemed member

6 1988 SCC OnLine Kar 80.
7 (1990) 1 SCC 536.
8 2013 SCC OnLine Del 6436.
[2026] 5 S.C.R. 357

Dr. Bais Surgical and Medical Institute Pvt. Ltd & Ors. v.
Dhananjay Pande

of the company, entitled to maintain a petition under sections 397
and 398, are as follows -
14.1 Letter dated 13.02.1998 by appellant no.2 addressed to Dr.
Naresh Trehan, describing respondent no. 1 as the “co-owner”.
14.2 Minutes of conciliation proceedings dated 29.05.2000, which
indicate admittance of respondent’s entitlement to allotment of
shares. Additionally, letter by the Conciliator, dated 23.07.2000,
shows that respondent no. 1 was the owner of 30% of the
hospital.
14.3 The respondent no. 1 was made the Managing Director and
upon receiving investment from him, the name of the hospital
was changed to Ekvira Heart Institute, “Ekvira” representing
respondent’s trading concern.
14.4 Respondent’s investment led to increased profits and
authorised share capital. There was, therefore, utilisation of
share application money brought in by the respondent.
14.5 The inconsistency between the Chartered Accountant’s
Certificate dated 30.08.1998 and the Balance Sheet dated
31.03.2000 suggested that it was possible to concluded that
respondent no. 1 was allotted shares on 15.07.1999, as
asserted by him.
14.6 Proceedings before the civil court, in the suit filed by the
respondent, indicate that the appellants had taken allotment
of shares to the respondent no. 1 as an admitted fact.
14.7 Conduct of business over the years points towards appellant
no. 2 and respondent no. 1 as being the real stakeholders
and the brains dominating the affairs of the company.
15. On the basis of the above factual background, the High Court
placed reliance on the judgement in Shri Balaji Textile (supra) to
state that the meaning of the word “member” under Sections 397
and 398 is to be understood in light of definition in Section 2(27)
and not with reference to Section 41. Explaining the scope of
Section 41, it was held that this provision needs to be restricted
to fact situations that necessitated its introduction, that is, to
protect interest of a company from a busy body claiming to be a
subsequent purchaser of shares as well as to protect shareholders/
358 [2026] 5 S.C.R.

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persons from false claims of unscrupulous companies. In all other
cases, the broader definition in Section 2(27) would apply. In view
of the above position of law, it was held that a person becomes a
shareholder of the company either by his name being entered in
the register of members or by him being treated as a member, as
evidenced by subsequent conduct.
16. To support its conclusion that respondent no. 1 is to be treated
as a member of the appellant company, the High Court placed
reliance on Buckley on Companies Acts, 2000 edition, wherein
it is stated that allotment results if applicant’s offer is accepted
by the company or even if a mere application is made in cases
where a pre-existing right exists in favour of the applicant. Thus,
the High Court concluded that even though there is deficiency of
documentary evidence pointing towards respondent no. 1 applying
to be a member or being treated as a member by the company, but
preponderance of probabilities supports allotment of shares in his
favour. It is in this light that the High Court affirmed the judgement
of the Company Law Board.
17. Having examined the reasoning adopted by the High Court in
affirming the orders of the Company Law Board, the issue that now
falls for determination before this Court is whether the respondent
no. 1 could be regarded as a “member” of the appellant company
so as to maintain a petition under Sections 397 and 398 of the
Companies Act, 1956, despite the absence of formal entry of his
name in the register of members at the relevant point of time. The
resolution of this issue necessarily requires an examination of the
statutory scheme governing membership under the Act, particularly
the interplay between the inclusive definition of “member” under
Section 2(27) and the provisions contained in Section 41 dealing
with acquisition of membership.
18. “Member” has been defined under Section 2(27) as:
“(27) “member”, in relation to a company, does not include
a bearer of a share-warrant of the company issued in
pursuance of section 114.”
19. On the other hand, Section 41, appearing in Part II of the Act, 1956
dealing with “Incorporation of Company and Matters Incidental
Thereto” provides as under:
[2026] 5 S.C.R. 359

Dr. Bais Surgical and Medical Institute Pvt. Ltd & Ors. v.
Dhananjay Pande

“41. DEFINITION OF “MEMBER”
(1) The subscribers of the memorandum of a company
shall be deemed to have agreed to become members of
the company, and on its registration, shall be entered as
members in its register of members.
(2) Every other person who agrees 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.
(3) Every person holding equity share capital of company
and whose name is entered as beneficial owner in the
records of the depository shall be deemed to be a member
of the concerned company.”
20. The question, hence, is whether the expression “member” as
appearing under Sections 397 and 398 is to be construed strictly in
accordance with Section 41 of the Act, 1956, or whether it must be
understood in the broader sense contemplated under Section 2(27).
It would also be necessary to consider whether Parliament intended
that membership of a company could arise only upon entry in the
register of members, or whether the Act contemplates other legally
recognised modes by which membership may be established,
including deemed membership, proof of agreement to become a
member, and recognition of proprietary interest evidenced through
conduct. It is in this backdrop that the legal position governing the
meaning and scope of the expression “member”, as occurring in
Sections 397, 398 and 399 of the Act, must now be analysed before
applying the same to the facts of the present case.
21. The statutory framework under the Act, 1956 draws a clear distinction
between the inclusive definition of the term “member” contained in
Section 2(27) and the provisions governing acquisition of membership
set out in Section 41. Section 2(27) employs language of wide
amplitude and, in relation to a company, embraces every category of
member, subject only to the limited exclusion of a bearer of a share-
warrant issued under Section 114 of the Act. Section 41, on the other
hand, operates in a different sphere and prescribes the recognised
modes by which membership may arise. It contemplates, first,
deemed membership in the case of subscribers to the memorandum;
secondly, persons who agree in writing to become members; thirdly,
360 [2026] 5 S.C.R.

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entry of a person’s name in the register of members, which ordinarily
constitutes conclusive evidence of membership; and lastly, persons
reflected as beneficial owners in the records of a depository. The
requirement that an agreement to become a member be “in writing”,
introduced by the Amendment Act of 1960, was intended to ensure
reliable proof of consent and to prevent fraudulent inclusion of names
in the register, and not to impose entry in the register as the sole or
exclusive mode of acquiring membership.
22. A more fundamental consideration arises from the nature of
jurisdiction conferred under Sections 397 and 398 of the Act, which
has consistently been recognised as equitable in character by this
Court.9 These provisions, situated in Chapter VI, are designed to
afford remedies to minority shareholders against acts of oppression
and mismanagement. The entitlement to invoke such jurisdiction is
regulated by Section 399, which prescribes the eligibility criteria for
maintaining an application under Sections 397 and 398. Accordingly,
the relevant enquiry, while determining maintainability, must center
on whether the applicant satisfies the conditions prescribed under
Section 399, rather than on a mechanical application of the procedural
requirements found in Section 41(2). The equitable foundation of
Sections 397 and 398 must be a guiding factor to not construe the
expression “member” in an unduly restrictive or technical manner
confined solely to formal entry in the register, thereby frustrating the
remedial purpose underlying the legislative scheme.
23. A conjoint reading of Sections 397, 398 and 399 indicates that the
expression “member” cannot be construed in isolation or confined
to the technical formulation contained in Section 41(2). Rather, the
broader definition embodied in Section 2(27) assumes significance
in determining whether a person is entitled to invoke the remedies
contemplated under the Act. It would be contrary to settled principles
of interpretation to attribute to the Legislature an intention to create
conflicting meanings of the same expression within the statute. The
expression “member”, when employed in the context of remedies
under Sections 397 and 398, must therefore be construed with
reference to the wider definitional framework provided in Section
2(27) and allied provisions governing the rights of members.

9 Needle Industries (India) Ltd. & Ors v. Needle Industries Newey (India) Holdings Ltd. and Ors.,
(1981) 3 SCC 333.
[2026] 5 S.C.R. 361

Dr. Bais Surgical and Medical Institute Pvt. Ltd & Ors. v.
Dhananjay Pande

24. The Karnataka High Court in Shri Balaji Textile (supra) adopting
a similar construct by analysing Sections 2(27) and 41 observed
that while Section 2(27) defines the expression “member” in
comprehensive terms, Section 41 merely lays down the procedural
requirements governing acquisition of membership. It was further
held that the meaning of the word “member” occurring in Sections
397 and 398 must be understood in the context of those provisions
and cannot be rigidly controlled by the procedural requirements
contained in Section 41(2). The Court emphasised that the legislative
amendment introducing the words “in writing” in Section 41(2) was
intended to remedy a specific mischief, namely, the insertion of
names in the register of members without consent, particularly in
circumstances wherein the company is approaching liquidation. It
was therefore concluded that Section 41(2) was not designed to
curtail substantive rights of genuine shareholders.
25. In Shri Gulabrai Kalidas Naik and Ors. v. Shri Laxmidas Lallubhai Patel
of Baroda and Ors.10, the Gujarat High Court observed that although
entry of a person’s name in the register of members ordinarily confers
the status of membership, it would be incorrect to treat such entry
as an inflexible or absolute requirement. The Court recognised an
important exception to the general rule, holding that where a person
demonstrates an indisputable and unchallengeable title to membership,
the absence of formal entry in the register would not preclude the
Court from entertaining a petition under Sections 397 and 398.
26. The principle that equitable considerations must inform the
interpretation of Sections 397 and 398 has also received approval
in judicial precedent concerning analogous situations. In World Wide
Agencies Pvt. Ltd. (supra), this Court held that the legal representatives
of a deceased shareholder, whose names had not yet been entered in
the register of members, could nonetheless maintain a petition under
Sections 397 and 398. The Court reasoned that such an interpretation
was necessary to advance the purpose of the statute and to avoid
defeating substantive rights through technicalities.
27. The Madras High Court in S.V.T. Spinning Mills P. Ltd. and Ors. v.
M. Palanisami and Ors.11 after referring to the aforesaid decisions,

10 1977 SCC OnLine Guj 47.
11 2009 SCC OnLine Mad 3260.
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reiterated that the jurisdiction under Sections 397 and 398 is equitable
in nature and that the meaning of the expression “member” must
be construed in a manner consistent with the object of protecting
minority shareholders.
28. Further guidance on this aspect may be drawn from the decision of
the Delhi High Court in Umesh Kumar Baveja (supra), wherein the
Court held that the absence of formal allotment of shares or entry in
the register of members is not, by itself, determinative of the status
of membership for the purposes of proceedings under Sections
397 and 398 of the Act, 1956. The Court observed that where
substantial funds invested specifically towards acquisition of equity,
are accepted and reflected in the financial records of the company
as share application money pending allotment, and are utilised for
the company’s business purposes, such conduct constitutes strong
evidence of recognition of the investor’s proprietary stake. It has
been relevantly held as follows –
“22. It seems to me in light of the authorities cited above
that the interpretation to be placed on section 41(2) vis-
a-vis petitions filed seeking relief from oppression and
mismanagement should be governed not strictly by the
requirements of the sub-section, so long as in substance
and effect the person complaining of acts of oppression
and mismanagement has been recognised or treated as
shareholder/member by the conduct of the company, and
that in giving effect to the remedies against the grievance,
considerations of equity and justice should be allowed to
prevail.”
29. Having carefully examined the record, relevant statutory provisions,
competing submissions, judicial pronouncements and the reasoning
adopted by the High Court, this Court finds that the conclusion treating
respondent no. 1 as a member was founded upon a consistent and
cumulative chain of factual circumstances demonstrating recognition
of his proprietary interest in the appellant company. The High Court
placed reliance on contemporaneous correspondence, including
the letter dated 13.02.1998 issued by appellant No. 2 describing
respondent no. 1 as a “co-owner”, as well as the conciliation
proceedings dated 29.05.2000 and the subsequent communication
of the Conciliator dated 23.07.2000 acknowledging the respondent’s
[2026] 5 S.C.R. 363

Dr. Bais Surgical and Medical Institute Pvt. Ltd & Ors. v.
Dhananjay Pande

entitlement to a substantial shareholding. These materials, when read
alongside the admitted fact that respondent no. 1 was inducted as
Managing Director and that the hospital was rebranded as Ekvira
Heart Institute, reflecting the identity of the respondent’s trading
concern, demonstrate that respondent no. 1 was consistently treated
as a stakeholder having interest in the appellant company rather
than as a mere investor or creditor.
30. The High Court further relied upon the financial and operational
conduct of the company, which showed that respondent no.1’s
investment was accepted and utilised for the expansion of the
company’s business, resulting in increased authorised share capital
and profitability. The cumulative effect of these circumstances
persuaded the High Court to conclude that respondent no. 1 had,
in substance, acquired the status of a shareholder whose interest
stood recognised by the company over a considerable period.
31. We find no reason to take a view different from that adopted by the
High Court and the Company Law Board in their appreciation of the
factual material on record. In view of the foregoing discussion and
cumulative factual circumstances, this Court is satisfied that the High
Court was justified in affirming the finding that respondent no. 1 was
entitled to be treated as a member for the purposes of maintaining
proceedings under Sections 397 and 398 of the Companies Act, 1956.
32. Consequently, the appeals are devoid of merit and are accordingly
dismissed. The amount deposited before this Court along with accrued
interest shall be released in favour of respondent no. 1 – Dhananjay
Pande. Pending applications, if any, stand disposed of. There shall
be no order as to costs.

Result of the case: Appeals dismissed.

†
Headnotes prepared by: Divya Pandey