Holding

The board’s issuance and allotment of rights shares was not oppressive; the Holding Company had no right to renounce the shares, and the appointment of the additional director was valid.

Summary

Needle Industries (India) Ltd. (NHL) was required by the Reserve Bank of India to reduce the foreign holding in its capital from 60% to 40% under the Foreign Exchange Regulation Act. To comply, the board resolved on April 6, 1977 to issue 16,000 rights shares at par and, on May 2, 1977, allotted them solely to Indian shareholders, effectively diluting the Holding Company’s stake. The Holding Company alleged that the board acted oppressively, that the notice of the May 2 meeting was defective, that the appointment of an additional director (Silverston) was invalid, and that it had a right to renounce the offered shares under s.81(c) of the Companies Act. The Supreme Court held that the board’s actions were taken in good faith to meet statutory requirements, that Silverston was a disinterested director, and that the Holding Company had no right to renounce the shares; consequently, no oppression existed. Nevertheless, the Court ordered the Indian shareholders to pay a solatium of Rs 8,54,550 to the Holding Company to disgorge the unjust enrichment from the rights issue and issued further directions to regularise the company’s governance.

Issues considered

The validity of the board's resolution to issue rights shares at par and allot them only to Indian shareholders under s.397 of the Companies Act.
Whether the Holding Company had a right to renounce the rights shares offered to it under s.81(c) of the Companies Act.
The legality of the appointment of Silverston as an additional director and the adequacy of quorum at the April 6 meeting.
The effect of the delayed notice of the May 2 meeting on the rights issue.
The interpretation of s.43A and s.81 of the Companies Act in relation to a private company that has become a public company.

Legislation cited

Companies Act, 1956s. 287(2), s. 299, s. 300, s. 3(1)(iii), s. 397, s. 398, s. 399, s. 433, s. 43A, s. 45, s. 81
Foreign Exchange Regulation Act, 1973s. 29(1), s. 29(2), s. 29(4)(a)

Subjects

oppressionrights issueCompanies ActSection 397Section 81Section 43AForeign Exchange Regulation Actminority shareholderfiduciary dutyrenunciation of sharesadditional directorIndianisation

Judgment

A 698

NEEDLE INDUSTRIES (INDIA) LTD.,
& ORS.

v.
B NEEDLE INDUSTRIES NEWEY (INDIA)
HOLDING LTD. & ORS.

May 7, 1981

[ Y.V. CHANDRACHUD, C. J., P.N. BHAGWATI AND
c E.S. VENKATARAMIAH, JJ. ]

Companies Act 1956, Ss. 3(1) (iii), 43A, 45, 81, 299(1), 300(1), 397 and _..
398and Foreign Exchange Regulation Act 1973, Ss. 29(1), (2) and4(a)-Scope
and effect of

D Private company becoming a public company by S. 43A-Reserve Bank direc-
tive that holding of the foreign company should be reduced-Reduction effected by
issue of new rights shares-Such shares to be offered to all shareholders Indian as
well as the holding company-Shares however allotted to on~v Indian sharehol-
ders-Notice of meeting 'at which allotment made not properly given to holding
company-Ho/ding company whether could renounce the offer in favour of the
person of its choice-Allotment to Indian shareholder-Whether amounts to
oppression.
E
'Directly or indirectly, concerned in the contract or arrangement'-Effect of-
Relationship of friendliness with Director-Lawyer-client relationship with
Director-Whether will disqualify a person from acting as Director.

Public company-Private company-What are-When does a private company
become a public company-No exception provided in S. 45 in favour of S. 43A pro-
F viso companies-Need for legislative amendment. ~-

Practice and Procedure-Allegation of a mafaji.ie-Examination of-Whether
can be on the basis of affidavits and correspondence only.

M/s. Needle Industries (fndia) Ltd. (NHL), the appellant was incorporated
G under the Indian Companies Act 1913 as a Private Company on 20.7.1949 with
its Registered office at Madras and at the time of its incorporation it was a
wholly owned subsidiary of Needle Industries {India) Ltd., Studley, England
{NI-Studley). In 1961, NI-Studley entered into an agreement with Newey Bros.
Ltd., Birmingham, England (Newey) to invest in the Indian Company. In 1963,
'
NI-Studley and Newey combined to form the Holding Company in England
H M/s Needle Industries-Newey (India) Holding Ltd., the respondent. The entire
share capital of NHL held by NI Studley and Newey was transferred to the
Holding Company in which NI-Studley and Newey became equal shares.
N.I.l.L. V. N.I.N.H.L. 699

As a result of this arrangement, the Holding Company came to acquire A
99.95 per cent of the issued and paid up capital of NIIL. The balance of
0.05 cent, which consisted of six share& being the original nominal shares, was
held by Devagnanam the managing director of NHL.

By virtue of the introduction of section 43A in the Companies Act in 1961,
NHL became a public company, since not less than twenty-five per cent of its
paid-up share capital was held by a body corporate, the Holding Company. B
However, under the first proviso to section 43(1) it had the option to retain its
articles relating to matters specified in section 3(1)(iii) of the Companies Act.

NIIL did not alter the relevant provisions of its articles after it became
a public company within the meaning of section 43A. By 1971 about 40 per
cent of the share capital of NHL came to be held by the Indian employees of
the company and their relatives and the balance of about 60 per cent remained
in the hands of the Holding Company NINIH Ltd.
c
In 1972 Coats Paton Ltd. became an almost 100% owner of NI-Studley.
The position at the beginning of the year 1973 was that 60% (to be exact
59.3%) of the share capital of NHL came to be owned half and half by Coats
and NEWEY, the remaining 40% being in the hands of the Indian Group of
which 28.5% was held by the Devagnanam's group. D
Though NHL was at one time wholly owned by NI-Studley and later by
NI Studley and Newey, the affairs were managed ever since 1956 by an entirely
Indian Management with Devagnanam as its Chief Executive and Managing
Director with effect from the year 1961. The Holding Company which was
fomied in 1963 had only one representative on the Board of Directors of
NHL. He was N.T. Sanders, who resided in England and hardly ever attended E
the Board Meetings. The holding company reposed great confidence in the
Indian management which was under the direction and control of Devagnanam.

In July 1972 Mr. Devagnanam was offered by the office of Managing
Director of group of four companies in Hong Kong and Taiwan and his
family began to reside in Hong Kong and he cogitated over resigning
from his position in NIIL. Coats, on their part were clear that Devagnanam F
should relinquish his responsibilities in NHL. in view of the time his role in
Newey's Far Eastern interests was consuming.

The Foreign Exchange Regulation Act 1973, came into force on Junuary 1,
1974. S. 29(1) prohibited non-residents, non-citizens and non-banking companies
not incorporated under any Indian law or in which the non-resident interest was
more than 40 per cent, from carrying on any activity in Indill of a trading, G
commercial or Industrial nature except with the general or special permission of
the Rese1ve Bank of India. By section 29(2) (a) if such person was engaged in
:.
any such activity at the commencement of the Act, he or it had to apply to the
Reserve Bank of India, for permission to ·carry on that activity, within six
months of the commencement of the Act or such further period the Reserve
Bank may allow. S. 29 (4) (a) imposed a simiiar restriction on such H
person or company from holding shares in India, of any company referred to
lcni ause (b) of section 29(1), without the permission of the Reserve Bank. The
700 SUPREME COURT REPORTS [1981] 3 S.C.R.

A time for making the application for the requisite permission under section 29
was extended by the Reserve Bank until August 31, 1974.

Since the Holding Company was a non-resident and its interest in NHL
exceeded 40% NHL had to apply for the permission of the Reserve Bank under
S. 29 (I) FERA for continuing to carry on its business. The Holding Com-
pany had also to apply for the permission of the Reserve Bank under S. 29 (4)
B (a) FERA for continuing to hold its shares in NHL. ·

NHL appplied to the Re~erve Bank for the necessary perm1ss1on on
September 3, 1974. By its letter dated May 11, 1976 the Reserve Bank con-
doned the delay and allowed the application and imposed conditions on NITL
that it must bring down the non-r~sident interest from 60% to 40% within one
year of the receipt of its letter. The Holding Company applied to the Reserve
Bank for a Holding Licence under section 29 (4) (a) of FERA, on September 18,
1974; which application was late by 18 days and was still pending with the
Reser.ve Bank.
•

Devagnanam who was residing in Hong Kong obtained a holding
licence dated March 5, 1975 from the Reserve Bank in respect of his shares
in NHL.
D
On receipt of the letter of the Reserve Bank dated March 11, 1976 NIIL's
secretary sent a reply on May 18, 1976 to the Bank confirming the acceptance of
the various conditions under which permission was granted to NHL to con-
tinue its business. On Angust 11, 1976 the term of Devagnanam's appointment
as the Managing Director of NlIL came to an end but in the meeting dated
October I, 1976 of NIIL's Board of Directors bis appointment was renewed
E for a further period of 5 years. On October 20th and 21st, 1976 a meeting
took place between the U.K. shareholders and the Indian shareholders of NHL;
But the meeting ended in a stalemate because whereas the Holding Company
wanted a substantial part of the share capital held by it in excess of 40 per cent
to be transferred to Madura Coats an Indian company in which the Holding
Company had substantial interest as an Indian shareholder. Devagnanam.
insisted that the existing Indian shareholders of NHL alone had the right under
F its Articles of Association to take up the shares which the Holding Company
was no longer in a position to hold because of the directives issued by the
Reserve Bank pursuant to FERA.

As negotiations were going on between the competing groups regarding
the Indianisation of NHL, on April 4, 1977 NHL received a reminder letter
dated March 30, 1977 from the Reserve Bank which pointed out that the com·
G pany had not submitted any concrete proposal for reduction of the non-resi-
dent interest and asked it to submit its proposal in that behalf without any
l
further delay and that failure to comply with the directive regarding dilution or
foreign equity within the stipulated period would be viewed seriously.

H A meeting of NIIL's Board of Directors was held on April 6, 1977. All
the directors were present in the meeting with Devagnanam in the chair at the
commencement of the proceedings. Mr. C. Doraiswamy, solicitor-partner of
N.I.L. V. N.J.N.I.L. 701

King and Partridge was one of the directors present at the meeting. He had no A
interest in the proposal of lndianisation which the meeting was to discuss. In
order to complete the quorum of two independent directors, the other directors
apart from C. Doraiswamy being interested in the business of the meeting,
Silverston an ex-partner of Doraiswamy's firm of solicitors, was appointed to
the board as an additional director under article 97 of the Articles of Associa-
tion. Silverston chaired the meeting after his appointment as additional
director. B
The meeting resolved that the issued capital of NHL be increased by a
new issue of 16,000 equity shares of Rs. 100 each to be offered as rights shares
to the exising shareholders in proportion to the shares held by them. The offer
was to be made by a notice specifying the number of shares which each share-
holder was entitled to and in case the offer was not accepted within 16 days
from the date on which it was made it was to be deemed to have been declined
by the concerned shareholder.
c
In pursuance to the aforesaid resolution a letter or offer dated April 14,
1977 was prepared. The envelope containing Devagnanam's explanatory' letter
dated April 12 (without the copy of the letter of the Reserve Bank dated
March 30, 1977) and the letter of offer dated April 14 were received by the
Holding Company on May 2, 1977 in an envelope bearing the Indian postal D
mark of April 27, 1977. The letter of offer which was sent to one of the Indian
shareholders, Manoharan was posted in an envelope which also bore the postal
mark of 27th April. The next meeting of the Board was due to be held on
May 2, 1977. The Holding Company was thus denied an opportunity to exer-
cise its option whether or not to accept the offer of right shares, assuming that
any such option was open to it.
E
The meeting of the Boaard of Directors was held an May 2, 1977 as
scheduled and in the me~ting the whole of the new issue consisting of 16,000
rights share was allotted to the Indian shareholders including members of the
Manoharan group. Out of these the Devagnanam group was allotted 11,734
shares. After marking the allotment of shares a letter was sent to the Reserve
Bank by NHL reporting compliance with the requirements of F.E.R.A. by the
issue of 16,000 rights shares and the allotment thereof to the Indian share- F
holders which resulted in the reduction of the foreign holding to approxi-
mately 40% and increased that of the Indian shareholders to almost
60%.
The Holding Company filed a company petition in the High Court under
section 397 and 398 of the Indian Companies Act, 1956 alleging that the Indian
Directors abused their fiduciary position in the Company by deciding in the G
meeting of April 6 to issue the rights shares at par and by allotting them exclusi-
vely to the Indian shareholders in the meeting of 2nd May, 1977. In doing so,
they acted ma/a fide and in order to gain an illegal advantage for themselves.
By deciding to issue the rights shares at par, they conferred a tremend-
ous and illegitimate advantage on the Indian shareholders. Devagnanam
delayed deliberately the intimation of the proceedings of the 6th April to the H
Holding Company. By that means and by the late giving of the notice of the
702 SUPREME COURT REPORTS [1981 I 3 S.C.R.
A meeting of the 2nd May, the Devagnanam group presented a fail uccomp/i to
the Holding Company in order to prevent it from exercising its lawful rights.
The conduct of the Indian directors lacked in probity and fair dealing which
the Holding Company was entitled to expect.

The acting Chief Justice who tried the Company Petition, found several
defects and infirmities in the Board's meeting dated May 2, 1977 and being of
B the view that the average market value of the rights shares was about Rs. 190
per share on the crucial date and that, since the rights shares were issued at
par, the Holding Company was deprived unjustly of a sum Rs. 8,54,550 at
the rate of Rs. 90 per share on the 9,495 rights shares to which it wa:s entitled.
Exercising the power under section 398 (2) of the Companies Act, the learned
Judge directed NHL to make good that loss which, could have been avoided
by adopting a fairer process of communication with the Holding Company and
c 'a consequential dialogue' with them in the matter of the issue of rights '.
shares at a premium.
The Holding Company being aggrieved by the aforesaid judgment filed an
appeal and NHL filed cross-objections to the decree. The appeal and cross-
objections were argued before the Division Bench of the High Court on the
basis of affidavits, the correspondence that bad passed between the parties and
certain additional documents which were filed before the Appellate Court.
The Division Bench concluded that the affairs of NIIL were being conducted in a
D manner oppressive, that is to say burdensome, harsh and wrongful to the
Holding Company and held that since the action of the Board of Directors
of NHL was taken merely for the purpose of welding the Company into Newey's
Far Eastern complex it was just and equitable to wind up the Company. With
regard to the cross-objections, the Division Bench held that the injuries suffered
by the Holding Company could not be remedied by the award of compensa·
tion and, therefore, the action of the Board of Directors in issuing the rights
E ~bares bad to be quashed. It accordingly allowed the appeal filed by the
Holding Company and dismissed the cross-objections of the appellant and
directed that the Board of Directors be suspended and an interim Board
consisting of nine directors proposed by the Holding Company be constituted
and that the rights issue made on 6th April, 1977 and the. allotment of shares
made on 2nd May, 1977 at the Board Meeting be set aside and the Interim
Board be directed to make a fresh issue of shares at a premium to the: existing
F shareholders including the Holding Company which was to have a right of
renunciation.

Jn the appeals to this Court, on the question whether the decisions taken
at the meetings of the Boards of Directors of NIIL on April 6 and May 2, 1977
constitute acts of oppression within the meaning of S. 397 of the Companies
Act 1956.
G Allowing the appeals.
HELD : I. The charge of oppression rejected after applying to the con•
duct of Devagnanam and his group the standard of probity and fairplay,
which is expected of partners in a business venture. Not only is the law on
his side, but his conduct cannot be characterised as lacking in probity, consi-
dering the extremely rigid attitude by Coats. He was driven into a tight corner
H from which the only escape was to allow the law to have its full play,
. [824 lB-C;G-H]
N.I.l.L. V. N.l.N.H.L. 703

2. Even though the company petition falls and the appeals succeed on the
A
finding that the Holding Company has failed to make out a case of oppression,
the court is not powerless to do substantial justice. between the parties and
place them, as nearly as it may, in the same position in which they would have
been, if the meeting of 2nd May were held in accordance with law. [824 H-825 A]

3. The willingness of the Indian shareholders to pay a premium on the
excess holding or the rights shares is a -factor which, to some extent, has gone in B
their favour on. the question of oppression. Having had the benefit of that
stance, they must now make it good. Besides, it is only meet and just
that the Indian shareholders, who took the rights shares at par when the
value of those shares was much above par, should be asked to pay the difference
in order to nullify their unjust and unju~tifiable enrichment at the cost of the
Holding Company. The Indian shareholders are not asked to pay the premium
as a price of oppression. The plea of oppression having been rejected the c
course being adopted is intended primarily to set right the course of justice.
[825 F-G]

4. Devagnanam, his group and the other Indian share-holders who took
the rights shares offered to the Holding Company shall pay, pro rata, the sum
of Rs. 8,54,550 to the Holding Company. The amount shall be paid by them
to the holding company from their own funds and not from the funds or assets D
of NIIL. [827 A-Bl

5. As a further measure of neutralisation of the benefit which the Indian
shareholders received in the meeting of 2nd May, 1977, it is directed that the
16,000 rights shares which were allotted in that meeting to the Indian share-
holders will be treated as not qualifying for the payment of dividend for a period
of one year commencing from January 1, 1977 the Company's year being the E
Calendar year. The interim dividend or any further dividend received by
the Indian shareholders on the 16,000 rights shares for the year ending Decem-
ber 31, 1977 shall be repaid by them to NHL, which shall distribute the same as
if the issue and allotment of the rights shares was not made untill after
December 31, 1977. This direction will not be deemed to affect or ever to have
affected the exercise of any other rights by the Indian shareholders in respect
of the 16,000 rights shar~s alloted to them. [827 B-D] F
6. In order to ensure the smooth functioning of NHL and with a view
to ensuring that the directions are complied with expeditiously, it is directed
that Shri M.M. Sabharwal who was appointed as a Director and Chairman of
the Board of Directors under the orders of this Court dated November 6, 1978
will continue to function as such until December 31, 1982. [827 Fl

7. The Company will take all effective steps to obtain the sanction
G
or permission of the Reserve Bank of India or the Controller of Capital Issues,
as the case may be, if it is necessary to obtain such sanction or permission for
giving effect to the directions. (827 Gl

8. Devagnanam and his group acted in the best interests of NHL, in the
matter of the issue of rights shares and indeed, the Board of Directors followed H
in the meeting of the 6th April a course which they had no option but to adopt
and in doing which, they were solely actuated by the consideration as to what
704 SUPREME COURT REPORTS [1981} 3 s.c.R.
was in the interest of the company. The shareholder Directors who were interes-
A ted in the issue of rights shares neither participated in the discussion of
that question nor voted upon it. The two Directors who, forming the requisite
quorum, received upon the issue of rights shares were Silverston who, was
a disinterested Director and Doraiswamy who, unquestionably, was so.
L792 A-CJ

9. Disinvestment by the Holding Company, as one of the two courses
B which could be adopted for reducing the non-resident interest in NHL to 40%
stood ruled out, on account of the rigid attitude of Coats who, during the period
between the Ketty meeting of October 20-21, 1976 and the Birmingham discus-
sions of March 29-31, 1977 clung to their self interest, regardless of the pressure
of FERA, the directive of the Reserve Bank of India and their transparent impact
.,
on the future of NHL. [792 D-E]
' .,
c 10. Devagnanam and the disinterested Directors, having acted out of legal
compulsion precipipated by the obstructive attitude of Coats and their action it
being in the larger interest of the company, it is impossible to hold that the
resolution passed in the meeting of April 6 for the issue of rights shares at par to
the existing shareholders of NHL constituted an act of oppression against the
Holding Company. [792 E-F]

D 11. It puts a severe strain on ones credulity to believe that the letters of
offer dated April 14 to the Holding Company, to Rae burn and to M anoharan
were posted on the 14th itself but that somehow they rotted in the post office
until the 27th on which date they took off simultaneously for their respective
destinations. [793 El

12. The purpose behind the planned delay in posting the letters of offer
E to Raeburn and to the Holding Company, and in posting the notice of the
Board's meeting for May 2 to Sanders, was palpably to ensure that no legal pro-
ceeding was taken to injunct the holding of the meeting. The object of withhold-
ing these important documents, until it was quite late to act upon them, was to
present to the Holding Company a fait accompli in the shape of the Board's
decision for allotment of rights shares to the existing Indian shareholders.
[794 C-E]
F 13. In so far as Devagnanam himself is concerned, there is room enough
to suspect that he was the part-author of the late postings of important docu-
ments, especially since he was the prime actor in the play of NILL's Indianisa-
tion. But even in regard to him, it is difficult to carry the case beyond the realm
of suspicion and 'room enough' is not the same thing as 'reason enough'.
[795 B-C]

G 13A. With regard to the impact on the legality of the offer and tht: validity
of the meeting of May 2,

(i) It is quite clear from the circumstances that the rights shares offered to
the Holding Company could not have been allotted to anyone in the
meeting of May 2, for the supposed failure of the Holding Company to
H communicate its acceptance before April 30. The meeting of May 2, of
which the main purpose was to consider 'Allotment' of the rights shares
must, therefore, be held to be abortive, [796 H-797 A]
N.I.I.L. V, N.I.N.H.L. 705

(ii) The utter inadequacy of the notice to Sanders in terms of time stares in A
the face and needs no further argument to justify the finding that the
holding of the meeting was illegal, at least in so far as the Holding
Company is concerned. It is self-evident that Sanders could not possi-
bly have attended the meeting. There is, therefore, no alternative save
to hold that the decision taken in the meeting of May 2 cannot, in the
normal circumstances, affect the legal rights of the Holding Company
or create any legal obligations against it. [797 D-EJ B
13B. The dilution of the non-resident interest in the equity capital of the
Company to a level not exceeding 40% "within a period of 1 (one) year from the
date of receipt of" the letter was of the very essence of the matter. The sane·
ti on for enforcement of a c,onditional permission to carry on business, where
conditions are breached, is the cessation, ipso facto, of the permission itself on
the non-performance of the conditions at the time appointed or agreed. When c
NHL wrote to the Bank on February 4, 1976 binding itself to the performance
of certain conditions, it could not be heard to say that the permission will remain
in force despite its non-performance of the conditions. Having regard to the
provisions of section 29 read with sections 49, 56(1) and (3) and secHon 68 of
FERA, the continuance of business after May 17, 1977 by NHL would have been
illegal, unles5 the condition of dilution of no11.-resident equity was duly complied
with. [799 B; F-HJ D
14. By reason of the provisions of section 29(1) and (2) of FERA and the
conditional permission granted by the RBI by its letter dated May 11, 1976 the
offer of rights shares made by NHL to the Holding Company could riot possibly
have been accepted by it. [800 BJ

The acceptance of the offer of rights shares by the Holding Company would E
have resulted in a violation of the provisions of FERA and the directive of the
Reserve Bank. No grievance can be made by the Holding Company that since
it did not receive the offer in time, it was deprived of an opportunity to accept
it. [800 D-GJ

14A. An offer of shares undoubtedly creates "fresh rights" but, the right
which it creates is either to accept the offer or to renounce it; it does not create F
any interest in the shares in respect of which the offer is made. [801 BJ

Matha/one v. Bombay Life Assurance Co. [1954] SCR IJ7 referred to.

15(i) Before granting relief in an application under section. 210 of the
English Companies Act as under 5ection 397 of the Indian Companies Act the
Court has to satisfy itself that to wind up the company will unfairly prejudice
the members complaining of oppression, but that otherwise the facts will justify
G
the making of a winding up order on the ground that it is just and equitable
that the company should be wound up. The fact that the company is prosperous
and makes substantial profits is no obstacle to its being wound up if it is just
and equitable to do so. [744 A-B; 775 GJ
H
Seo/fish Co-op. Wholesale Society Ltd. v. Meyer [1959J A.C. 324, Re Asso-
ciated Tool lndusiries Ltd. [1964] Argus Law Reports, 75, Ebrahimi v. Westbourne
706 SUPREME COURT REPORTS [1981] 3 S.C.R

A Galleries Ltd. [ 1973] A.C. 360 (H.L.), Blissett v. Daniel [68] E.R. 1024. Re Yenidge
Tobacco Co. [1916] 2 Ch. 426 & Loch v. John Blackwood [1924] A.C. 783 referred
to.

(ii) On a true construction of section 397, an unwise, inefficient or careless
conduct of a Director in the performance of his duties cannot give rise' to a claim
for relief under that section. The person complaining of oppression must show
B that he has been constrained to submit to a conduct which lacks in probity,
conduct which is unfair to him and which causes prejudice to him in the exercise
of his legal and proprietary rights as a shareholder. [748 E-G]

(iii) Technicalities cannot be permitted to defeat the exercise of the equi-
table jurisdiction conferred by section 397 of the Companies Act.

c Blissett v. Daniel 68 E.R. 1024 referred to.

16. An isolated act which is contrary to law, may not necessarily and by
itself support the inference that the law was violated with a ma/a fide intention
or ihat such violation was burdensome, harsh and wrongful. But a series of
illegal acts following upon one another can, in the context, lead justifiably to
the conclusion that they are a part of the same transaction, of which the
D object is to cause or commit the oppression of persons against whom those acts
are directed. [746 G-747 A]

17. An isolated order passed by a Judge which is contrary to law will not
normally sbpport the inference that he is biased, but a series of wrong or illegal
orders to the prejudioe of a party are generally accepted as supporting the infe-
renc~ of a reasonable apprehension that the Judge is biased and that the party
E complaining of the orders will not get justice at his hands. [747 B-C]

S.M. Ganpatram v. Sayaji Jubilee Cotton and Jute Mills Co. [1964] 34
Company Cases 830-31 & Elder v. Elder (1952] S.C. 49 referred to.

18. It is generally unsatisfactory to record a finding involving grave con-
sequences to a per son on the basis of affidavits and documents without asking
---.,,.-
F that person to submit to cross-examination. Men may lie but documents
will not and often, documents speak louder than words. But a total
reliance on the written word, when probity and fairness of conduct are in
issue, involves the risk that the person accused of wrongful conduct is denied
an opportunity to controvert the inferences _said to arise from the documents.
(754 E-G]

G Re Smith and Fawcett Ltd. (1942] l All ER 542, 545; Nana Lal Zaver v. Bombay
Life Assurance (1950] SCR 390, 394 Piercy v. Mills (1920] (I) Chancery 77,
Hogg v. Cramphorn, (1967] I, Chancery 254. 260; Mills v. Mills [60] CLR 150,
160, Har/owe's Hominees (121] CLR 483, 485 & Howard Smith v. Amphol [1974]
A.C. 821, 831 Punt v. Symons (1903] 2 Ch. 506; Franzer v. Whall11y 71 E.R. 361
referred to.
H
In the instant case the High Court was right in holding that, having taken
up a particular attitude, it was not open to Devagnanam and his group to con-
N.1.1.L. v. N.I.N,H,L. 707

tend that the allegation of ma/a fides could not be examined, on the basis of A
affidavits and the correspondence only. There is ample material on the record in
the form of affidavits correspendence and other documents, on the basis of
which proper and necessary inferences can safely and legitimat~ly be drawn.
[755B-Cl

These docucuments and many more documents were placed on the record
mosdy by consent of parties, as the case progressed from stage to stage. That
B
shows· that the parties adopted willingly a mode of trial which they found to be
most convenient and satisfactory. [756 A-Bl

19. When the dominant motivation is to acquire control of a company,
the sparring groups of shareholders try to grab the maximum benefit for them-
selves. If one decides to stay on in such a company, one must capture its con-
c
trol. If one decides to quit, one must obtain the best price for one's holding,
under and over the table, partly in rupees and partly in foreign exchange.
Then, the tax laws and the foreign exchange regulations look on helplessly,
because law cannot operate in a vaccum and it is notorious that in such cases
evidence is not easy to obtain. [761 G-H; 762Al

20. It is difficult to hold that by the issue of rights shares the Directors of D
NHL interfered in any manner with the legal rights of the majority. The
majority had to disinvest or else to submit to the issue of rights shares in order
to comply with the statutory requirements of FERA and the Reserve Bank's
directives. Having chosen not to disinvest, an option which was open to them,
they did not any longer possess the legal rights to insist that the Directors shall
not issue the rights shares. What the Directors did was clearly in the larger
interests of the Company and in obedience to their duty to comply with the
law of the land. The fact that while discharging that duty they incidentally
E
trenched upon the interests of tbe majority cannot invalidate their action. The
conversion of the existing majority into a minority was a consequence of what
the Directors were obliged lawfully to do. Such conversion was not the motive
force of their action. [782 A-El

Howard Smith Ltd. v. Ampo/ Petroleum Ltd. [1974] A.C. 821, 874, Punt v.
Symons [1903] 2 Ch. 506 & Fraser v. Whalley [71] E.R. 361 Piercy v. Mills [1920]
F
I Ch. 77, Hogg v. Cramphorn [1967] 1 Ch. 254, 260 referred to

21. (i) The Directors have exercised their power for the purpose of pre-
venting the affairs of the company from being brought to a grinding
halt, a consumption devoutly wished for by Coats in the interest ~f
their extensive world-wide business. [784 CJ
G
(ii) The mere circumstance that the Directors derive benefit as shareholders
by reasons of the exercise of their fiduciary power to issue shares, will
not vitiate the exercise of that power. [785 El

(iii) The test is whether the issue of shares is simply or solely for the benefit ff
· of the Directors. If the shares are issued in the largar interest of the
708 SUPREME COURT EPORTS [1981] 3 S.C.R.

A company that decision cannot be struck down on the ground that it
has incidentally benefited the Directors in their capacity as share-
holders, [786 CJ

In the instant case the Board of Directors did not abuse its fiduciary power
in deciding upon the issue of rights shares. [786 DJ
B
Har/awe's Nominess Pvt. Lid. v, Woodside (Lakes Entrance) Oil
Company No. Liability & Anr. (121) CLR 483, 485, Trek Corporal/on Ltd. v.
Miller et al (33) DLR 3d. 288; Nana/al Zaver & Anr. v. Bombay Life Assu-
rance Co. Ltd. [1950J SCR 390, 419-429; Hirsche v. Sims [1894) A.C. 654, 660-66!;
Gower in Principles of Modern Company Law, 4th Edn. 578 referred to.
c
22. Under section 287 (2) of the Companies Act, 1956 the quorum for the
meeting of the Board of Director was two. There can be no doubt ·that a
quorum of two directors means a quorum of two directors who are competent
to transact and vote on the business before the Board. [786 EJ

D 23. (i) It is wrong to attribute any bias to Silverston for having acted as an
adviser to the Indian shareholders in the Ketty meeting. Silverston is
by profession a solicitor and legal advisers do not necessarily have
a biased attitude to questions on which their advice is sought or
tendered. Silverston's alleged personal hostility to Coats cannot,
within the meaning of section 300 (I) of the Companies Act, make him
person "directly or indirectly, concerned or interested in the contract
E or arrangement" in the discussion of which he had to participate or
upon which he had to vote. [787 E-G]

(ii) The concern or interest of the Director which has to be disclosed at the
Board meeting must be in relation to the contract entered or to be
entered into by or on behalf of the company. The interest or concern
spoken of by sections 299 (1) and 300 (l) cannot be a merely senti-
F mental interest or ideological concern. Therefore, a relationship of
friendliness with the Directors who are interested in the contract or
arrangement or even the mere fact of a lawyer-client relationship with
such directors will not disqualify a person from acting as a Director on
the ground of his being, under section 300 (I) as "interested" Director.
Howsoever one may stretch the language of section 300 (!) in the
interest of purity of company administration, it is next to impossible
G to bring Silverston's appointment within the framework of that pro-
vision. [788 A-CJ

The argument that Silverston was an interested Director, that therefore his
appointment as an Additional Director was invalid and that consequently the
H resolution for the issue of rights shares was passed without the necessary quorum
of two disinterested Directors has no force. [788 D-E)
N.1.1.L. V. N.I.N.H.L. 709

Firestone Tyre and Rubber Co. v. Synthetics and Chemicals Ltd., [1971] 41 A
Company Case 377 distinguished.

24. Silverston's appointment as an Additional Dire;tor is not open to
challenge on the ground of want of agenda on that subject. Section 260 of the
Companies Act preserves the power of the Board of Directors to appoint addi·
tional Directors if such a power is conferred on the Board by the Articles of
Association of the Company. Article 97 of NIIL's Articles of Association B
confers the requiste power on the Board to appoint additional Dire;tors. The
occasion to appoint Silverston as an. Additional Director arose only when the
picture emerged clearly that the Board would have to consider the only other
alternative for reduction of the non-resident holding, namely, the issue of rights
shares. It is for this reason that the subject of appointment of an Additional
Director could not have, in the state of facts, formed a part of the agenda.
[788 F.G; 789 A-Cl
c
25. (i) The power to issue shares is given primarily to enable capital to bo
raised when it is required for the purposes of the company but that
power is not conditioned by such need. That power can be used for
other reasons as for example to create a sufficient number of share·
holders to enable the company to e:tercise statutory powors or to enable
it to comply with legal requirements. [789 D-E]
D
Punt v. Sym1ns and Co., [1903] 2 Ch. 506 ; Hogg v. Cramphorn,
[1967] 1 Ch. 254; Howard Smith v. Amphol, [1974] A.C. 821 •.

(ii) The minutes of the Ketty meeting of October 20-21, 1976 saying that
it was agreed that the rights issues, with the Indian shareholders taking
up the U.K. members' rights, would be considered provided it was
demonstrated by NIIL that "there is a viable development plan requir-
ing funds that the expected NHL cash flow cannot meet", cannot also
E
justify the argument that the power of the Company to issue rights
shares was, by fagreemont conditioned by the need to raise additional
capital for a developm~nt plan. (790 H; 791 A]

(iii) In the instant case the rights shares were issued in order to comply with
legal requirements which1 apart from being obligatory as the only
viable course open to the Directors, was for the benefit of the company F
since, otherwise, its developmental activities ,would have stood frozen
as of December 31, 1973. The shares were not issuo d as a part of
takeover war between the rival groups of shareholders. [79J B·C]

26. It is not true to say, as a statement of law, that Directors have no
power to issue shares at par, if their market price is above par. These are
primarily matters of policy for the Directors to decide in the exercise of their G
discretion and no hard and fast rule can be laid down to fetter that discretion.
Such discretionary powers in company administration are in the nature of fidu·
ciary powers and must be exercised in faith. Mala fides vitiate the exercise of
such discretion. [791 E & G]
Hilder and Others v. Dexter [1902] A.C. 474, 480 referred to.
H
27. The definition of 'private company' and the manner in which a 'public
company' is defined ("public company meami a company which is not a private
710 SUPREME COURT REPORTS (1981]3 S C.R.

A company") bear out the argument that these two categories of companies are
mutually exclusive. But it is not true to say that between them, they exhaust
the universe of companies. A private company which has become a . public
company by reason of S. 43A, may continue to retain in its articles, matters
which are specified in S. 3(1)(iii) and the number of its members may be or may
at any time be reduced below 7. (810 H; 811 A-Bl

[(i) A section 43A company may include in its articles as part of its
structure, provisions relating to restrictions on transfer of shares,
B limiting the number of its members to 50, and prohibiting an invitatiun
to the public to subscribe for shares, which are typical characteristics of
a private company. The expression 'public company' in section 3(i)(iv)
cannot therefore be equated with a 'private company' which has
become a public company by virtue of section 43A. (811 D-E]

(ii) A section 43A company can still maintain its separate corporate
c indentity qua debts even if the number of its members is reduced below
seven and is not liable to be wound up for that reason. (811 Fl

(iii) A section 43A company can never be incorporated and registered as
such under the Companies Act. It is registered as a private company
and becomes, by operation of law, a public company. (811 G]

D (iv) The three contingencies in which a private company becomes a public
company bY virtue of section 43A (mentioned in sub-sections (I), (I A)
and (IB) read with the provisions of sub-section (4) of that section)
show that it becomes and continues to be a public company so long as
the conditions in sub-sections (l), (IA) or (IB) are applicable. The
provisos to each of these sections clarify the legislative intent that such
companies may retain their registered corporate shell of a private com·
E pany but will be subjected to discipline of public companies. When
necessary conditions do not obtain, the legislative device in S. 43A is
to permit them to go back into their corporate shell and function once
again as private companies, with all the privileges anJ exemptions
applicable to private companies. The proviso to each of the sub-sections
of S. 43A clearly indicates that although the private company has
become a public company by virtue of that section, it is pr~rmitted to
F retain the structural characteristics of its origin, its birthmark.
[811 H-812 A-BJ

(v) Section 43A when introduced by Act 65 of 1960 did not adopt the
language either of section 43 or of section 44. Under section 43 where
default is made in complying with the provisions of section 3(l)(iii)
G a private company shall cease to be entitled to the privileges and .,,....
exemptions conferred on private companies by or under this Act, and
ihis Act shall apply to the company as if it were not a private com- ,
pany. Under section 44 of the Act, where a private company alters
its Articles in such manner that they no longer include the provisions,
which under section 3(1)(iii) are required to be included in the Articles in
H order to constitute it a private company, the company "shall as on the
date of the alteration cease· to be a private company". Neither of the
N.1.1.L. V. N.I.N.H.L. 711

expresson, namely, "This Act shall apply to the company as if it were A
not a private company" (section 43) nor that the company "shall ...
cease to _be a private company (section 44) is used in section 43A. If a
section 43-A company were to be equated in all respects with a
public company, that is a company which does not have the
characteristics of a private company, Parliament would have used
language similar to the one in section 43 or section 44, between which
two sections, section 43A was inserted. If the intention was that the B
rest of the Act was to apply to a section 43A company "as if it were
not a private company", nothing would have been easier than to adopt
that language in section 43A; and if the intention was that a section
43A company would for all purposes "cease to be a private company'',
nothing would have been easier than to adopt that clabguage in
section 43A. [812 E-H; 813 A]

(vi) A private company· which becomes a public company by virtue of
c
section 43A is not required (o file a prospectus or a statement in lieu
of a prospectus. [813 C]

After the Amending Act 65 of 1960 these distinct types of companies occupy
a distinct place in the scheme of our Companies Act : (1) private companies
(2) public companies and (3) private companies which have become public D
companies by virtue of section 43A, but which continue to include or retain the
three characteristics of a private company. Private companies enjoy certain
expemptions and privileges which are peculiar to their constitution and nature.
Public companies are subjected severely to the discipline of the Act. Companies of
the third kind like NHL, which become public companies but which continue to
include in their articles the three matters mentioned in clauses (a) to (c) of section
3(1)(iii) are also, broadly and generally, subjected to the rigorous discipline of E
the Act. They cannot claim the privileges and· exemptions to which private
companies which are outside section 43A are entitled. And yet, there are certain
provisions of the Act which would apply to public companies but not to section
43A companies. [813 D; 814 A-C]

There is no difficulty in giving full effect to clauses (a) and (b) of section
81(1) in the case of a company like NIIL, even after it becomes a public company
under section 43A. Clause (a) requires that further shares must be offered to
F
the holders of equity shares of the Company in proportion, as nearly as circum-
stances admit, to the capital paid up on these shares, while clause (b) requires that
the offer further shares must be made by a notice sp~cifying t!rn number of shares
offered and limiting the time, not being less than fifteen days from the date of
the offer, within which the offer, if not accepted will be deemed to have been
y declined. [815 H; 816 A-Bl
G
The provision contained in clause (c) cannot be construed in a manner
which will lead to the negation of the option exercised by the company to
retain in its articles the three matters referred to in section 3(1)(iii). Both
these are statutory provisions and they are contained in the same statute. They
must be harmonised, unless the words of the statute are so plain and unambi- H
guous and the policy of the statute so clear that to harmonise will be doing
violence to those wotds and to that policy. The policy of the statute if any-
712 SUPREME COURT REPORTS [1981] 3 S.C.R.

A thing, points in the direction that the integrity and structure of the section 43-A
proviso companies should, as far as possible not be broken up. [817 E-F]

Park v. Royalty Syndicates [191211 K.B. 330 and Re Pool Shipping Co.
Ltd.'[1920] 1 Ch. 251 referred to.

Palmer's Company Law 22nd. Vol. I para 12-18 Gower's Company Law
B 4th End p. 351 referred to.

27. When section 43A was introduced by Act 65 of 1960, the legislature
apparently overlooked the need to exempt companies falling under it, read with
its first proviso, from the operation of clause (c) ofsec.81(1). That the legisla-
ture has overlooked such a need in regard to other matters, in respect of which
there can be no controversy, is clear from the provisions of sections 45
c and 433( d) of the Companies Act. Undar section 45, if at any time the
number of members of a company is reduced, in the case of a public
company below seven, or in the case of a private company below two, every
member of the company becomes severally liable, under the stated circum-
stances, for the payment of the whole debt of the company and can be severally
sued therefor. No exception has yet been provided for in section 45 in favour
of the section 43A-proviso companies, with. the result that a private company
D having, say, three members which becomes a public company under section 43A
and continues to function with the same number of members, will attract the
rigour of section 45. Similarly, under section 433(d) such a company woul d
automatically incur the liability of being wound up for the same reason.
[818 A-D]

While construing the opening words of section 81(1)(c) it has to be re-
membered that section 43A companies are entitled under the proviso to that
E section to include provision in their Articles relating to matters specified in
section 3(1)(iii). The right of renunciation in favour of any other person is
wholly inconsistent with the Articles of a private company. If a private com-
pany becomes a public company by virtue of section 43A and retains or con-
tinues to include in its Articles matters referred to in section 3(1)(iii) it is difficult
to say that the Articles do not provide something which is otherwise than what
is provided in clause (c). The right of renunciation in favour of any other person
F is of the essence of clause (c). On the other hand, the absence of that right is of
the essence of the structure of a private company, It must follow, that in all
cases in which erstwhile private companies become public companies by virtue of
section 43A and retain their old Articles, there would of necessity be a provision
in their Articles which is otherwise than what is contained in clause (c). Con-
sidered from this point of view, the argument as to whether the word '·provide"
in the opening words of clause (c) means "provide expressly" loses its signi-
G ficance. [820 B-D]

In the context in which a private company becomes a public company under ,
section 43A and by reason of the option available to it under the proviso the
word "provide" must be understood to mean "provide expressly or by necessary
implication". The necessary implication of a provision has the same effect and
H relevance in Jaw as an express provision has, unless the relevance of what is
necessarily implied is el\cluded by the use of clear words. [820 E-F]
.
'

N.I.l.L. V. N.I.N.H.L. 713

The right of renunciation is tentamount to an invitation to the public to - A
subscribe for the shares in the company and can violate the provision in regard
to the limitation on number of members. Article 11, by reason of its clause (iv)
prevails over the provisions of all other Articles if there is inconsistency between
it and any other Article. (821 CJ

28. Clause (c) of section 81(1) of the Companies Act apart from the
consideration arising out of the opening words of that clause, can have no B
application to private companies which have become public companies by virtue
of section 43A and which retain in their Articles the three matters referred to
in section 3(1)(iii) of the Act. In so far as the opening words of clause (c) are
concerned they do not require an express provision in the Articles of the Com-
pany which otherwise than what is provided for in clause (c). It is enough, in
order to comply with the opening words of clause (c). that the Articles of the
Company contain by necessary implication a provision which is otherwise than
what is provided in clause (c). Articles 11 and 50 of NIIL's Articles of Associa·
c
tion negate the right of renunciation. (821 D-F]

29. The right to renounce shares in favour of any other person, which is
conferred by clause (c) has no application to a company like NHL and, there-
fore, its members cannot claim the right to renounce shares offered to them in
favour of any other member or members. The Articles of a company may well D
provide for a right of transfer of shares by one member to another, but that
right is very much different from the right of renunciation, properly so
called. (821 G-H]

Re Poat Shipping Co. Ltd. [1920] I Ch. 251 referred to.

30. A change in the pro rata method of offer of new shares is necessarily
violative of the basic characteristics of a private company which becomes a
E
public company by virtue of section 43A. To this limited extent only, but not
beyond it, the provisions of sub-section (IA) of section 81 can apply to such
companies. (822 Fl

31. The following propositions emerge out of the discussions of the
provisions of FERA, Sections 43A and 81 of the Companies Act and of the
Articles of association of NHL: F
(I) The Holding Company had to part with 20% out of the 60% equity
capital held by it in NHL; [822 H]

(2) The offer of Rights shares made to the Holding Company as a result
of the decision taken by;Board of Directors in their meeting of April 6,
1977 could not have been accepted by the Holding Company ; G
[822 H; 823 A]

(3) The Holding Company had no right to renounce the Rights shares
offered to it in favour of any other person, member or non-mem·
ber; and (823 BJ
H
(4) Since the offer of Rights Shares could not have been either accepted
or renounced by the Holding Company, the former for one reason and
714 SUPREME COURT REPORTS (1981) 3 S.C.R

A the latter for another, the shares offered to it could, under artick 50 of
the articles of association, be disposed of by the directors, consistently
with the articles of NHL, particularly article 11, in such manner as
they thought most beneficial to the Company. (822 B-CJ

32. These propositions afford a complete answer to the respondents' con-
tention that what truly constitutes oppression of the Holding Company is not
B the issue of Rights Shares to the existing Indian shareholders only but !he offer
of Rights Shares to all existing shareholders and the issue thereof to existing
Indian shareholders only. (823 DJ

33. It was neither fair nor proper on the part of NIIL's officers not to
ensure the timely posting of the notice of the meeting for 2nd May so as to
enable Sanders to attend that meeting. But there the matter rests. Even if Sanders
c were to attend the meeting, he could not have asked either that the Holding
Company should be allotted the rights shares or alternatively, that it should
be allowed to "renounce" the shares in favour of any other person, including the
Manoharan group. The charge of oppression arising out of the central accusation
of non-allotment of the right> shares to the Holding Company must, therefore
fail. [823 H; 824 A-BJ

D CIVIL APHLLATE JURISDICTION: Civil Appeals Nos. 2139,
2483 and 2484 of 1978.

Appeals by Special Leave from the judgment and order dated
the 6th October, 1978 of the Madras High Court in 0.S.A. No. 64
of 1978.
E
F.S. Nariman, A.K. Sen, Dr. Y.S. Chita!ey, S.N. Kackar, ,._
T. Dalip Singh, K.J. John, Ravinder Narain, A.G. Menses and
R. Narain for the Appellants.

H.M. Seervai, Anil B. Divan, A.R. Wadia, S.N. Ta/war, I.N.
F Shrojj and H.S. Parihar for Respondent No. I.

D.N. Gupta for Respondents Nos. 2-7, 10-12, 15, 16, 18-22, 26
and 28·33.

The Judgment of the Court was delivered by
G
CHANDRACHUD, C. J. These three appeals by special leave
arise out of a judgment of a Division Bench of the mgh Court of
Madras dated October 6, 1978 allowing an appeal against the
judgment of a learned Single Judge, dated May 17, 1978 in Company
H
Petition No. 39 of 1977. The main contending parties in these
appeals are : (i) the Needle Industries (India) Limited and (ii) the
N.1.1.L. v. N.l.N H.L. (Chandrachud C.J.) 715

Needle Industries-Newey (Indian Holdings) Limited. These two A
companies have often been referred to . in the proceedings as the
Indian Company and the English Company respectively, but it
would be convenient for us to refer to the former as 'NHL' and to
the latter as the 'Holding Company'. The Holding Company has
been referred to in a part of the proceedings as 'NINIH'.
B
In Civil Appeal 2139 of 1978, which was argued as the main
appeal, NHL is appellant No. 1 while one T.A. Devagnanam is
appellant No. 2. The latter figures very prominently in these
proceedings and is indeed one of the moving spirits of this acrimoni-
ous litigation. He was appointed as a Director of NHL in 1956
and as its Managing Director in 1961. He is referred to in the c
•. correspondence as 'TAD' or 'Theo' but we prefer to call him
'Devagnanam'. The Holding Company is Respondent 1 to the
main appeal, the other respondents being some of the Directors and
shareholders of NHL. Civil Appeal 2483 of 1978 is filed by some
of the shareholders of NHL while Civil Appeal 2484 of 1978 is filed
by some of its directors and-officers. The Holding Company is the D
contesting respondent to these two appeals. We wilL deal with
the main appeal and our judgment therein will dispose of all the
three appeals.

The NIIL was incorporated as a Private Company under
the Indian Companies Act, 1913 on July 20, 1949 with its
Registered Office at Madras. Its factory is situated at Ketty,
Nilgiris. At the time of its incorporation, NIIL was a wholly
owned subsidiary of Needle Industries (India) Ltd., Studley,
England (hereinafter called 'NI-Studley'). The authorised capital
-...........--- of NHL was Rs. 50,00,000 divided into 50,000 equity shares of
Rs. 100 each. Its issued and paid up capital prior to 1961 was F
Rs. 6,75,600 divided into 6,756 equity shares of Rs. 100 each. The
issued and paid up capital was increased to Rs. I 1,09,000/- in 1961.
In that year, NI-Studley entered into an agreement with NEWEY
BROS. LIMITED, Birmingham, England, (hereinafter called
NEWEY), undef which NEWEY agreed to participate in the
G
equity capital of NIIL to the extent of Rs. 4,33,400/-, consisting
of 4,334 equity shares of Rs. 100/- each. Thus, fo 1961, the position
of the share holding in NHL was that NI-Studley held approxima-
tely 60.85% of the issued capital and NEWEY held the balance of
39.14%. In 1963, NHL increased its share capital by issuing 2,450 H
additional shares to NI-Studley, as a result of which the latter
became the holder of about 68% shares in NHL, the rest of the
716 SUPREME COURT REPORTS ( [981) 3 S.C.R.

A 32% belonging to NEWEY. Later in the same year, NI-Studley
and NEWEY combined to _form the Holding Company, of which
the full official name. as stated earlier is the Needle Industries-
Newey (Indian Holding) Ltd. The Holding Company was incorpo-
rated in the United Kingdom under the English Companies Ac:t, 1948
with its Registered Office at Birmingham, England. The entire share
B capital of NHL, held by NI-Studley and NEWEY, was transferred
to the Holding Company in which NI-Studley and NEWEY became
equal sharers. As a result of this arrangement, the Holding
Company came to acquire 99.95% of the issued and paid up
capital of NHL. The balance of 0.05%, which consisted of 6 shares
being the original nominal shares, was held by Devagnanam.
c The NIIL, it shall have been noticed, was incorporated about
two years after India attained independence. As a result of an
undertaking given by it to the Government of India at thei time of
its incorporation and pursuant to the subsequent directives given
by the said Government for achieving Indianisation of the share
D capital of foreign companies, three issues of shares were made by
NHL in the years 1968, 1969 and 1971, all at par. There was also
an issue of Bonus shares in 1971: As a result of thesf: issues,
about 40% of the share Capital of NHL came to be held
by the Indian employees of the Company and their relatives
while the balance of about 60% remained in the hands of the
E Holding Company. In terms of the number of shares, by 1971-72
the Holding Company owned 18, 990 shares and the Indian share-
holders owned 13,010 shares. Out of the latter block of shares,
Devagnanam and his relatives held 9,140 shares while the remaining
3,870 shares were held by other employees and their relatives, amongst
whom were N. Manoharan and his group who held 900 shares and
F D.P. Kingsley and his group who held 530 shares. The total share
capital of NIIL thus came to consist of 32,000 equity shares of
Rs. 100 each.
In or about 1972, a company called Coats Paton Limited,
Glasgow, U.K. (hereinafter called 'Coats') became- an almost 100%
G ' owner of NI-Studley. The position at the beginning of the year
1973 thus was that 60% (to be exact 59.3%) of the share capital of
NIIL came to be owned half and half by Coats and NEWEY, the
remaining 40% being in the hands of the Indian group. The bulk
of this 40% block of shares was held by Devagnanam's group, which
H came to about 28.5% of the total number of shares.
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 717

Though NHL was at one time wholly owned by NI-Studley A
and later, by NI-Studley and NEWEY, the affairs of NHL were
managed ever since 1956 by an entirely Indian management, with
Devagnanam as its Chief Executive and Managing Director with
effect from the year 1961. The Holding Company which was formed
in 1963, had only one representative on the Board of Directors of
NIIL. He was N.T. Sanders. He resided in England and hardly B
ever attended the Board meetings. The Holding Company reposed
great confidence in the Indian management which was under the
direction and control of Devagnanam.

But the acquisition of NI-Studley by Coats in 1972 and their
consequent entry in NHL created in its wake a sense of uneasy quiet c
between the Coats on one hand, which came to own half of the 60%
share capital held by the Holding Company, that is to say, 30% of
the total share capital of NHL, and the Devagnanam group on the
other hand, which owned 28.5% of that share capital. By the mere
size of their almost equal holding in NIIL, Coats and Devagnanam
developed competing interests in the affairs of NHL. Coats were D
in the same line of business as NHL, namely, manufacture and sale
of needles for various uses, fish-hooks etc., and they had established
trading centres far and wide, all over the world. It is plain business,
involving no moral turpitude as far as business ethics go, that Coats
could not have welcomed competition from NIIL with their world
interests. Devagnanam was a man of considerable ability and E
foresight and in NIIL he saw an opportunity of controlling and
dominating as industrial enterprise of enormous potential in a rapidly
growing market. The turnover of NIIL had increased from 2.80
lakhs in 1953 to 149.93 lakhs in 1972 and the profits ran as high as
19.4% of the turnover. Implicit confidence in the Indian manage-
ment which was the order of the day almost till 1974 gradually gave F
way to an atmosphere of suspicion and cjistrust between Coats and
Devagnanam. NEWEY apparently kept away from the differences
which were gradually mounting up between the two but, evidently,
they nursed a preference for Devagnanam. Coats are a giant multi-
national organization. NEWEY, comparatively, are small fish though,
they too had their own independent business interests to protect and
G
foster.

NEWEY owned a flourishing business in Malaysia, Hong
Kong, Taiwan, Japan and Australia and from 1972 onwards they
drew Devagnanam increasingly into the orbit of their Far Eastern H
718 ' SUPREME COURT REPORTS [1981] 3 S.C.R

A interests. In July, 1972 he was offered the office of Managing
Director of a group of four companies in Hong Kong and Taiwan
on a five year contract, with an annual salary of six thousand
y
pounds. He had already been appointed to the Board of the
NEWEY joint venture company in Osaka and Japan and acted as
the liaison Director for that company. He had also been asked to
B coordinate sales with NEWEY Brothers, Australia. Willing to
accept these manifold responsibilities, Devagnanam became
strenuously involved therein. He and his wife began to reside in
Hong Kong and he cogitated over resigning from his position in
NIIL. Coats, on their part, were clear that Devagnanam should
relinquish his responsibilities in NIIL, in view of the time his role
c in NEWEY's Far Eastern interests was consuming. The question
of appointing his successor as Managing Director in NIIL then
began to be discussed, the Holding Company wanting to have
Manoharan as a substitute. Devagnanam carried the feeling that
he was already persona non grata with Coats, because of certain
incidents which had taken place some years ago.
D
The Foreign Exchange Regulation Act, ('FERA'), 46 of 1973,
which came into force on January I, 1974 provided to Coats and
Devagnanam a legal matrix for fighting out their differences. The
provisions of FERA, which was passed, inter alia, for the conserva-
tion of foreign exchange resources of the country and the proper
E utilisation thereof in the interests of the economic development of
the country are stringent beyond words. Putting it broadly and
briefly, section 29 (I) of FERA prohibits non-residents, non-citizens
_and non-banking companies not incorporated under any Indian Law
or in which the non-resident interest is more than 40%, from carrying
on any activity in India of a trading, commercial or industrial nature
F except with the general or special permission of the Reserve Bank
of India. By section 29 (2) (a), if such a person or company is
engaged in any such activity at the commencement of the Act, he
or it has to apply to the Reserve Bank of India, for permission to
carry on that activity, within six months of the commencement of
the Act or such further period as the Reserve Bank may allow.
G Since the Holding Company is a non-resident and its interest in
NIIL exceeded 40%, NIIL had to apply for the permission of the
Rs:serve Bank for continuing to carry on its business. Section 29
(4) (a) imposes a similar restriction on such person or company from
holding shares in India of any company referre~ to in clause (b) of
H section 29 (1), without the permission of the Reserve Bank. There-
fore, the Holding Company also had to apply for the permission of
N.1.1.L. v. N.I.N.H.L. (Chandrachud, C.J.) 719

the Reserve Bank for continuing to hold its shares in NHL. The A
time for making application for the requisite permission under section
29 was extended by the Reserve Bank by two months generally,
that is to say, until August 31, 1974. The need to comply with the
provisions of section 29 of FERA is the pivot round which the whole
case revolves.
B
NHL applied to the Reserve Bank for the necessary permission
through its Director and Secretary, D.P. Kingsley, on September 3,
1974 By its letter dated May 11, 1976, the Reserve Bank allowed that
application on certain conditions. NIIL's application was late by
three days but the delay was evidently ignored or condoned. One
of the conditions imposed by the Reserve Bank on NHL was that it c
must bring down the non-resident interest from 60% to 40%
within one year of the receipt of its letter. That letter having been
received by NHL on May 17, 1976, the dead-line for reducing the
non-resident interest to 40% was M~y 17, 1977.

D
The Holding Company applied to the Reserve Bank for a
'Holding Licence' under section 29(4)(a) of FERA, on September 18,
1974. That application which was late by 18 days is, we are
informed, still pending with the Reserve Bank. Perhaps, it will be
disposed of after the non-resident interest in NHL is reduced to 40%
in terms of section 29 (I) of FERA.
E
Devagnanam was residing in Hong Kong to fulfil his commit-
ment to NEWEY's far-eastern business interests. FERA had its imp-
lications for him too, especially since he could be regarded as a noa-
resident and did consider himself as such. He obtained a holdin.:;
licence dated March 4, 1975 from the Reserve Bank in respect of F
his shares in NJIL. But, his interest in the affairs of NHL began to
flag for one reason or another and he started looking out for a pur-
chaser who would buy his shares on convenient and attractive
terms. In a note dated April 29, 1975 which he prepared 0:1
"further Indianisation - Needle Industries (India) Ltd." he pointed
out that Indianisation should be considered on the footing that the G
non-resident interest should be reduced to 40% and that, as between
• the two feasible methods of Indianisation, namely, (I) Going to
public and (2) placement of shares, the latter was preferable.

He said: H
720 SUPREME COURT REPORTS · (J 981) 3 S.C.R.

A There can be no question of my becoming in any way
involved with Ketti and its future as I am committed
to NEWEY. There appears to be no possibility of returning
to India in what is left of my working life. I there-
fore have little choice but to sell my shares.

B ('Ketty' in Nilgiris, is the place where NIIL' s factory is situated
and is treated as synonymous with NHL). Devagnanam referred in
his note to an inquiry from a Mr. Khaitan, the head of a powerful
group with diverse interests and investment in industry, who was
already involved in the manufacture of products allied to NIIL's.
Coats were alarmed that Devagnanam was negotiating the sale of
c his shares "to a Marwari, one Khaitan of Shalimar, a sewing
needle C()mpetitor to Ketti". In a letter dated August 6, 1975
addressed to Doraiswamy, a partner in a Madras firm of solicitors
called 'King and Partridge' who was a Director of NHL, Sanders, a
Director of the Holding Company on NIIL's Board, expressed his
grave concern at the proposed deal thus :
D
No doubt Mr. Khaitan would pay the earth to acquire
NHL and judging by what Theo (Devagnanam) had said
about him in the past, he may be prepared to arrange or
facilitate payment abroad, a most attractive possibility
from Theo's point of view, since he has said clearly that
E he intends leaving India for good, finally settling in
Australia.
I
Sanders added that the deal was so dangerous from the point of
view of NIIL that the Holding Company "would feel obliged to pre-
vent it by whatever means were open" to it. By his reply dated
F August 12, 1975, Doraiswamy said that the news of the proposed
sale came as no surprise to him and that he had heard that Silver-
ston, a former Solicitor-partner of his, was acting as a "go-between"
in Devagnanam's deal with Khaitan.

On September 16, 1975 Devagnanam wrote to M.M.C.
G NEWEY of NEWEY, Birmingham. pointing out the advantages that
would accrue by the sale of the shares to Khaitan. Devagnanam
reiterated his total identification with NEWEY' s Far Eastern inte-
rests and expressed his anxiety to free himself from all commitments
to or involvement with NIIL, as early as possible.
H On October 22, 1975 an important meeting was held in which
Alan Machrael, a Director of the Holding Company, mad<: it clear
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 721

on behalf of Coats that neither Khaitan nor any other single pur- A
chaser would be acceptable to the Holding Company if that meant
the acquisition of 30% share holding. The notes of the meeting
record that Devagnanam had confirmed that the offer which he
had received from Khaitan was at Rs. 360 per share, out of which
a substantial proportion (perhaps 50%) would be payable outside
India. Mackrael stated at the meeting that the price in rupees could B
be matched but not the method of payment which was illegal and
reiterated that the Holding Company would prevent any attempt
by Devagnanam to sell his holding to Khaitan. The notes of the
meeting were signed by Mackrael on October 30, 1975. On that
~/
.l(' date, Sanders wrote a letter to Manoharan stating that the Holding
Company was not prepared that 30% of the share capital should c
get into the hands of any one person, bearing in mind the problems
~--
that had arisen in allowing Devagnanam to acquire a holding of
nearly that proportion. On November 7, 1975 M.M.C. Newey
wrote to Devagnanam making it clear beyond the manner of any
doubt that Coats, will not accept Khaitan and that according to D
Bannatyne of Coats, they were put to considerable trouble in finding
Indian residents who would match Khaitan's offer of 3.6 times par.
Newey made it clear that in any event, the sale price would have
to be paid in India and that they would not. be a party to any
illicit currency deal. Finding that Coats were determined not to
allow him to sell his shares to Khaitan, Devagnanam changed his E
mind and decided against disposing of his holding in Niil. On
November 13, 1975, he wrote to Newey saying:

"I do not think any of us want to _see Coats dominate
Ketti. Hence there can be no question of selling any part
F
4---· of my shares to their nominee. As they in turn will not
approve of anyone we choose, there is no way of solving
the problem ............ The best thing to do, therefore, is for
me to revert to the original basis and they should have no
cause to complain. This will of course include effectively
managing the Indian company. Let me however assure
you that it will not be at the expense of Newey."
G

And so did Devagnanam remain in NIIL, with the stage set for a
battle between him and Coats for acquisition of control over the
affairs (,f NHL.

Yet another statutory prov1s10n which has an important
H
bearing on the issues arising in these appeals is the one contained
722 SUPREME COURT REPORTS [1981] 3 s.c.~.
A
in section 43 A of the Indian Companies Act, 1956, which was
introduced in 1961 by Act 65 of 1960. NIIL was incorporated as a
Private Company in 1949 under the Indian Companies Act, 1913.
It was a Private C<:Jmpany as defined in section 3 ( !) (iii) of that
Act since, by its Articles of Association, it restricted the right to
B transfer its shares, limited the number of its members to fifty and
prohibited any invitation to the public to subscribe to any of its
shares or debentures. By section 43 A, it became a Public Com-
pany, since not less than twenty-five per cent of its paid-up share
capital was held by a body corporate, namely, the Holding Com-
pany. But, under the first proviso to section 43A (1), it had the
c option to retain its Articles relating to matters specified in_ sec-
tion 3 (!) (iii) of the Companies Act. NHL did not alter the rele-
vant provisions of its Articles after it became a Public Company
within the meaning of section 43A. One of the points in contro-
versy between the parties is whether, in the absence of any posi-
tive step taken by NIIL for exercising the option to retain its Articles
D relating to matters specified in section 3 (1) (iii) of the Companies
Act, it can be held that NIIL had in fact exercised the option, which
was available to it under the 1st proviso to section 43A, to include
provisions relating to those matters in its Articles.

To resume the thread of events, on receipt of the letter of
E the Reserve Bank dated May 11, 1976 Kingsley, _as NIIL's Secre-
tary, sent a reply on May 18, 1976 to the Bank confirming the
acceptance of the various conditions under which permission was
granted to NHL to continue its business. On August 11, 1976 the
term of Devagnanam's appointment as the Managing Director of
NHL came to an end but in the meeting dated October 1, 1976 of
F NIIL's Board of Directors, that appointment was renewed for a
further period of five years. On being informed of the renewal of
Devagnanam's appointment, NEWEY's Chairman, C Raeburn, who
used to atter.d to the affairs of the Holding Company, did not object
as such to the Board's decision ("It may well be that the reappoint-
ment in itself is right") but he demurred to the modality by which
G the decision was taken since, according to him, questions relating to
appointments to senior positions in the Company ought to be
decided in consultation with the U.K. Shareholders so that they
could have an opportunity to express their views. Sanders, it may
be mentioned, had received the notice of the meeting duly. On
H October 20 and 21. 1976, a meeting took place at Ketti between
the U.K. shareholders and the Indian shareholders of NIIL. The
former were represented by Alan Mackrael, the Managing Director
N.l.l.L. v. N.I.N.H.L. (Chandrachud C.J.) 723

of the Holding Company, and C. Raeburn, the Chairman of NEWEY A
the latter by Devagnanam and Kingsley. One Martin Henry, the
Managing Director of 'Madura Coats', an Indian Company in
which the Holding Company had substantial interest, also attended
that meeting and took part in its deliberations. Silverston, an English·
man who was practising in India asa Solicitor, attended the meeting
as an advisor to the Indian shareholders. C. Raeburn chaired the mee- B
ting. Para 2 of the note prepared by him of the discussions held at the
meeting says that it was agreed that lndianisation should be brought
about by May 1977, as requested by the Government, so as to achieve
40% U.K. and 60% Indian shareholding. But the meeting vir·
tually ended in a stalemate because whereas the Holding Company
wanted a substantial part of the share capital held by it in excess c
of 40% to be transferred to Madura Coats as an Indian shareholder,
Devagnanam insisted that the existing Indian share-holders of NHL,
alone bad the right, under its Articles 0f Association, to take up
the shares which the Holding Company was no longer in a position
to hold because of the directives issued by the Reserve Bank pur-
suant to FERA. Thus, the difference between the two groups who D
were fast falling out was not, as it could not be, whether the
Holding Company had to reduce its share holding in NIIL from
60% to 40%, but as regards-the mode by which that reduction was
to be brought about. The bone of contention was as to which
Indian Party should take up the excess of 20%- the existing Indian
shareholders of NHL or an outside Indian Company, the Madura
E
Coats. Raeburn played the role of a mediator but did not succeed.
On the conclusion of the Ketty meeting, Silverston wrote a letter to
Kingsley conveying his appreciation of the efforts made by Raeburn
to bring the parties together and his distress at the attitude of Coats
which, according to Silverston, showed that they were trying to
circumvent the provisions of FERA. Raeburn too wrote a let_ter
.,,
on October 23, 1976 to Devagnanam saying that Coats were not
really interested in any independent Indians taking their
excess share·holding. On December 11, 1976 Devagnanam wrote
to Raeburn expressing the resentment of himself and his group at
the attempts made by Coats to maintain their control over NHL
by indirect means. On Decembe-r 14, Devagnanam offered a
G
• package deal under which the existing Indian shareholders would
augment their holding to 60%, Mackrael and Raeburn would be on
the Board of Directors but not Martin Henry, and even B.T. Lee, a
Senior Executive of NI-Studley, could be appointed as a wholetime
IJ
Director of NIIL to be in charge of its export programme. On
January 20, 1977 the Reserve Bank sent a reminder to NIJL asking
724 SUPREME COURT REPORTS [1981] 3 S.C.R.

A it to submit at an early date the progress report regarding dilution
non-resident interest. By its reply dated February 21, 1977 NHL
confirmed its commitment to achieve the desired Indianisation by
the stipulated date, viz., May 17, 1977. On March 9, 1977 Raeburn
wrote to Devagnanam, saying that after a discussion with
Mackrael and three other high-ranking persons of Coats, it was
clear that Coats were not agreeable to allowoing the present Indian
B shareholders to acquire 60% of the equity capital of NIIL, since
such a course carried in the long run too great a risk to their world
trade. Raeburn made certain fresh proposals by his letter in the
hope that they would be acceptable to Coats and invited
Devagnanam to come to Birmingham for negotiations.

c On March 18, 1977 a notice was issued by NIIL's Secretary,
D.P. Kingsley, intimating that a meeting of the Board of Directors
will be held on April 6, 1977. One of the items on
the agenda of the meeting was shown as "Policy-Indianisation''.
. Sanders received the notice of the meeting duly but did not attend
the meeting.
D
Devagnanam went to Birmingham in the last week of
·March 1977. Between 29th and 31st March, he held discussions
with four out of the six Directors of the Holding Company, namely
NEWEY, Jackson, White-house and Raeburn. The other two
E Directors, Mackrael and Sanders, did not take any part in those
discussions. During his visit to Birmingham, Devagnanarn expen-
ded considerable time in discussing various matters with NEWEY,
pertaining to their Far-Eastern business.

On April 4, 1977 NHL received a reminder letter dated
F ¥arch 30, 1977 from the Reserve Bank which pointed out that the ~-
Company had not yet submitted any concrete proposal for reduction
of the non-resident interest and asked it to submit its proposal in that
behalf without any further delay. The letter warned the Company
that if it failed to comply with the directive regarding dilution of
foreign equity within the stipulated period, the Bank would be
G constrained to view the matter seriously.

Raeburn had written a letter to Devagnanam on 4th April
on the question of the compromise formula and Devagnanam too
had written a letter to Raeburn on the 5th, saying' that he would
H place the formula before his colleagues!. These letters evidently
crossed each other. The 6th April was then just at hand.
N.I.J.L. v. NJ.N.H.L. (Chandrcuhud C.J.) 725

The meeting of NIIL's Board of Directors was held on April 6, A
J977 as scheduled. Seven Directors were present at the meeting,
with Devagnanam in the chair at the commencement of the pro-
ceedings. C. Doraiswamy, solicitor-partner of 'King and Partridge',
was one of the Directors present at the meeting. He had no interest
in the proposal of "lndianisation" which the meeting was to discuss
and was, therefore, considered to be an independent Director. In B
order to complete the quorum of two independent Directors, the
other Directors apart from C. Doraiswamy being interested in the
business of the meeting, Silverston, an ex-partner of Doraiswamy's
firm of solicitors, was appointed to the Board as an additional Dire-
ctor under article 97 of the Articles of Association. Silverston chaired
the meeting after his appointment as an additinal Director. The c
meeting resolved that the issued capital of NHL be increased to
Rs. 48,00,000/- by a new issue of 16,000 equity shares of Rs. 100/-
each, to be offered as rights shares to the existing shareholders in
proportion to the shares held by them. The offer was to be made
by a notice specifying the number of shares which each shareholder
was entitled to, and in case the offer was not accepted within 16 D
days from the date on which it was made, it was to be deemed to
have been declined by the concerned shareholder. The minu~es
of the meeting recorded that as a matter of abundant caution,
the Directors who were holding shares in NILL did not take part
either in the discussions which took place in the meeting or in the
voting on the resolution.
E

After the aforesaid meeting of the Board dated April 6, 1977,
Devagnanam wrote a Jetter bearing the date April 12 to Rae-
burn, explaining that every alternative proposal was ·discussed
in the meeting and setting out the compelling circumstances
F
arising out of the requirements of FERA which led to the
_ passing of the particular resolution. It was stated in the
letter that a copy of the Reserve Bank's letter of March 30, 1977
to NHL was enclosed therewith, but in fact it was not so
enclosed. The letter of offer dated April 14, 1977 was prepared
pursuant to the resolution passed in the meeting of 6th April, The
G
envelope containing Devagnanam's letter dated April 12 (without the
• copy of the letter of the Reserve Bank dated March 30, 1977) and the
letter of offer dated April 14 were received by Raeburn on May 2,
1977 in an envelope bearing the Indian postal mark of April 27; 1977,
The letter of offer which was sent to one of the Indian shareholders; H
· Man"oharan, was posted in an envelope which also bore the postal
mark of 27th April. !he next meeting of the Board was due to be
726 SUPREME :couRT REPORTS [1981] 3 s.c.R.

A held on May 2, 1977 and it is on that date that Raeburn received the
letter of offer dated April 14, which evidently, was posted at Madras
on April 27, 1977. The Holding Company was thereby denied an
opportunity to exercise its option whether or not to accept the offer
of rights shares, assuming that any such option was open to it.
Whether such an option was open to it and whether, if it could not
or did not want to take the rights shares, it could transfer its rights,
B under NIIL's letter offering the rights shares, to a person of its
choice depends upon the provisions of FERA, the necessity to Com-
ply with the directives of the Reserve Bank the terms of NIIL's
Articles of Association and the provisions of the Indian Companies
Act.

c On April 19, 1977 a notice was issued by NIIL's Secretary
intimating that a meeting of the Board of Directors will be held on
May 2, 1977. One of the items of agenda mentioned in the notice
was "Policy-(a) lndianisation, (b) Allotment of shares", The notice
of the meeting was sent to the Holding Company in an envelope
which also bore the Indian postal mark of April 27, 1977. The
D notice was received by Sanders in England on May 2, 1977 i.e. on
tht< date when the meeting was due to be held in India. Even the
fastest and the most modern means of transt:ort could not have
enabled Sanders to attend the meeting.
In between, on April 26, 1977 Raeburn had written a letter
to Devagnanam at Malacca, following a telex message which
E said: /
lite·

HAD HELPFUL DISCUSSIONS COATS YESTERDAY
PLEASE MAKE NO DECISIONS RE INDIANISATION
PENDING LETTER"
F By his letter of 26th April, which is said to have been received by
Devagnanam on May 4, 1977, Raeburn stated that Coats were still
unwilling to grant majority shareholding control to the existing
Indian shareholders, but that they were equally not keen to do any·
thing which would be regarded as circumventing the proposal for
G
lndianisation or the law bearing on the subject, since that would
undermine the position of the Indian shareholders,

A meeting of the Board of Directors was held on May 2, 1977
as scheduled. The minutes of that meeting show that Kingsley, the
H
Secretary of NHL; pointed out in the meeting that applications for
allotment of the rights shares offered as also the amounts payable
\
N.J.I.L •. v. N.I.N.H.L. (Chandrachud, C.J.) 727

along with the acceptance of the offer had been received from all the A
shareholders except the U.K. shareholders and the Manoharan group.
The offer to Manoharan was sent at Virudh Nagar but Silverston
pointed out to the meeting that Manoharan was working in Jaipur
and that therefore, he should be given further time to participate in
the rights issue. The Manoharan group was accordingly allowed
twenty days' time from the date of the allotment letter for payment B
of the allotment amount. In the meeting of 2nd May, the whole of
the new issue consisting of 16,000 rights shares was allotted to the
Indian shareholders, including members of the Manoharan group.
Out of these, the Devagnanam group was allotted 11, 734 shares.
A dividend of 30%, subject to tax, amounting to Rs. 9,60,000/- was
recommended by the Board, and it was resolved that the Annual c
General meeting of the Company be held on 4th June, 1977. Silver·
stone was appointed as an additional Director of the Company and
his election as such at the Annual General meeting was recommended
by the Board. Further, it was resolved that deposits be invited from
the public. On the same day i.e. 2nd May, Devagnanam wrote a
letter to Raeburn intimating to him that in a meeting held that morn- D
ing the formalities relating to allotment of shares were completed,
bringing the Company under the control of the Indian shareholders.
Devagnanam reiterated by his letter the hope of a closer association
with the NEWEY group.

Raebum reacted sharply to Devagnanam's letter of April 12 E
and to the letter of offer dated April 14. As stated earlier, he had ·
received both of these on May 2 in an envelope which bears the
postal mark of Madras dated April, 27. Raeburn sent a telex,
message to Devagnanam on 2nd May and another to Kingsley on
3rd May. By the first telex, he complained about the inadequacy
of the notice of the meeting and by the second, he conveyed F
that there was considerable doubt on the question whether the
necessary disinterested quorum was available at the meeting of the
Directors held on April 6. On receipt of the telex message, Devag-
nanam wrote a letter to Raeburn on May 4 explaining the pressure
of circumstances which compelled the Board to take the decision
which it did in the meeting of May 2, 1977. Raeburn followed up G
his telex messages by a letter to Devagnanam on May 3. While
expressing his distress and displeasure at the manner in which the
decision regarding the issue of rights shares was taken and the allot-
ment of the shares was made, Raeburn stated in his letter that the
rights issue at par, which was considerably less than the fair value H
728 SUPREME COURT REPORTS [1981] 3 S.C.R.

A of the shares, was most unfair to the shareholders who could not tak~
up the rights issue.

After making the allotment of shares in the meeting of May 2,
NIIL sent a letter to the Reserve Bank reporting compliance with
the requirements of FERA by the issue of 16,000 .rights shares and
B the allotment thereof the Indian shareholders which resulted in the
reduction of the foreign holding to approximately 40% and increased
that of the Indian shareholders to almost 60%. Reference was made
in the letter to the fact that the allotment money of Rs. 1,10,700/-
had yet to be received, which was obviously in reference to the
amount due on the 1,107 rights shares which were allotted to the
Manoharan group in the meeting of 2nd May. The Manoharan
c group did not evidence any interest even later in taking up those
shares. M_anoharan, it may be stated, who was a Director
and General Manager of NHL had resigned his post in April 1976,
after serving the Company for nearly 17 years.

D Between the 2nd and 9th May, there was an exchange of
cables between Mackrael and Doraiswamy which led to the latter
writing a letter on the 9th to the former. Doraiswamy stated in that
letter that he had thoroughly investigated the position by perusing
all available records placed before him by Devagnanam and Kingsley
and that he was of the opinion that, in the meeting of the 6th April,
E there was the required quorum of two disinterested Directors con-
sisting of Silverston and himself and, therefore, there could be no
doubt wh8tsoever about the legality of the resolution passed in that
meeting. He admitted that although the time-limit fixed by the
Reserve Bank had expired on 17th May, 1977, "it may have been
possible for the Company to get further time from the Reserve Bank
F of India". As regards the decision to issue the additional shares at
par, he explained that if the issue had been made at a premium, it
would have necessitated an approach to the Controller of Capital
Issues, a process which was time-consuming and complicated. He
pointed out that the authorities would not have allowed the Company
to issue the rights shares ·at a premium and that even if they were
G to allow such a course, the premium permissible would have been
only nominal. He asserted that the delay caused in the offer of new
shares being received by the U.K. shareholders was of little conse-
quence because they would not have been able to take up the shares
in any event. He expressed the hope that Mackrael would agree
H that the decision regarding the issue of rights shares taken at the
Board meeting on April 6, 1977 was bona fide and in the best interests
N.1.1.L. Y. N.I.N.H.L. (Chandrachud, C.J.) 729

0( the Company. He concluded his letter by an assurance that A
as regards the late despatch of the notice of the Board Meeting of
2nd May, further enquiries were being made.

On May 11, Devagnanam wrote to Raeburn apologising for the
manner in which the foreign shareholding had been reduced and
for good measure, he projected the ·various advantages which the B
NEWEY group would enjoy under the new Indian management and
control of NIIL. As if to illustrate that it is better late than never,
he enclosed with his letter a copy of the Reserve Bank's letter dated
30th March, 1977 which was to have been sent along with the letter
dated April 12 but was in fact not so sent.
c
On May 17, 1977 Mackrael, acting on behalf of the Holding
Company, filed a Company Petition in the Madras High Court under
sections 397 and 398 of the Indian Companies Act, 1956 out of which
the present appeals arise.

It Is alleged in the petition that the Indian Directors abused D
their fiduciary position in the Company by deciding in the meeting
of April 6 to issue the rights shares at par and by allotting them
exclusively to the Indian sharesholders in the meeting of 2nd May,
1977. In so doing, they acted malafide and in order to gain an illegal
advantage for themselves. The Indian Directors, according to the
company petition, either knew or ought to have known that the fair E
value of the shares of the Company was about Rs. 204 per share. By
deciding to issue the rights shares at par, they conferred a tremendous
and illegitimate advantage on the Indian shareholders. Devagnanam
delayed deliberately the intimation of the proceedings of the 6th April
to the Holding Company. By that means and by the late giving of
the notice of the meeting of the 2nd May, the Devagnanam group F
presented afait accompli to the Holding Company in order to prevent
it from exercising its lawful rights. Thus, according to the petition
the conduct of the Indian Directors lacked in probity and fair deal-
ing which the Holding Company was entitled to expect. By the
Petition, the Holding Company asked for the following reliefs :-
G
(a) That the Board of Directors of the Company be super-
seded and one or more Administrators be appointed to
administer the affairs of the Company or, in the alter-
native, the Board of Directors be reconstituted so as
to ensure that the Holding Company had adequate H
representation on it;
730 SUPREME COURT REPORTS (1981] 3 S.C.R.
A (b) That the proceeding of the meeting of the Board of
Directors held on April 6 and May 2, 1977 be declared
illegal, void and inoperative;

(c) That Silverston's appointment as an Additional Direc-
tor of the Company be declared as void and inoperative
B and he be restrained from functioning as a Director of
the Company;

(d) That the purported allotment of 16,000 shares pursuant
to the impugned resolution of the Board of May 2, 1977
be declared void; ~.
c
(e) That the Indian group of shareholders to whom the
rights shares were allotted be restrained from exerci-
sing any voting rights in regard to any part of those
shares;

D (f) That the Company be restrained from giving effect to
the allotment of the 16,000 rights shares and from
making any payment of dividend on those shares;

(g) That the Articles of Association of the Company be
amended so as to permit the transfer of the shares to
E persons other than the existing members of the
Company in order to enable the Holding Compa.ny to
comply with the requirement of disinvestments without
prejudice to its interest as a shareholder; and

(h) That a special majority for decisions of the Board be
-~·
F prescribed in regard to all important matters and pro-
vision be made for the appointment of Directors by
proportional representation.

The learned Acting Chief Justice who tried the Company Peti-
tion, found several defects and infirmities in the Board's meeting
G dated May 2, 1977 and concluded that appropriate relief should be
granted to the Holding Company under section 398 of the Companies
Act. The learned Judge was of the view that the average market
value of the rights shares was about Rs. 190 per share on the crucial
date and that, since the rights shares were issued at par, the: Holding
H Company was deprived unjustly of a sum of Rs, 8,54,550/- at the
rate of Rs. 90/- per share on the 9,495 rights shares to which it was
N.l.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 731

entitled. Exercising the power under section 398(2) of the Companies A
Act, the learned Judge directed NHL to make good that loss which,
according to him, could have been avoided by it "by adopting a
fairer process of communication" with the Holding Company and
"a consequential dialogue" with them, in the matter of the issue of
rights shares at a premium. The learned Judge directed NIIL to
pay to the Holding Company the aforesaid sum of Rs. 8,54,550/- as B
a "solatium" in order to meet the ends of justice.

Being aggrieved by the aforesaid judgment, the Holding
Company filed O.S. Appeal No. 64 of 1978 while NIIL filed cross-
objections to the decree. The appeal and cross-objections were
argued before the Division Bench of the High Court on the basis of c
affidavits, the correspondence that bad passed between the parties
and certain additional documents which were filed before the Appel-
late Court by consent of parties. Though the Company Petition
was filed under section 397 as also under. section 398 of the
Companies Act and though the trial court had granted partial relief
to the Holding Company under section 398, it was stated in the D
Appellate Court on its behalf that its entire case was based on
section 397 and that it did not want to invoke the provisions of
section 398. A similar statement was made before us also.

On a consideration of the matters and material before it, the
Division Bench formulated its view in the form of 18 conclusions on E
various aspects of the case. They may be summed up thus :

(a) As soon as Devagnanam became involved in the far-
eastern ventures of NEWEY, he decided to sell his
share- holding in NIIL to an Indian conce~n or party
from which he expected to receive at least a part of
F
the consideration in a foreign country.

(b} Seeing that Coats were opposed to his receiving any
part of the consideration for the sale of his shares in a
foreign country, Devagnanam decided not to part with G
his shares but to obtain the control of the Company.

(c) The directives of the Reserve Bank of India on the
question of Indianisation were exploited by Devagna-
nam for compelling the Holding Company to part H
with its shares in favour of the Indian shareholders.
732 SUPREME COURT REPORTS [1981] 3 S.C.JR.

A (d) Coats were willing to carry out the directives of the
Reserve Bank but they did not want to transfer their
shares to the existing Indian shareholders because
thereby, the latter would have acquired a controlling
interest in NIIL which Coats wanted to prevent. Coats
were willing to part with their excess shares in favour
B of other Indian residents.

(e) Though Coats originally contemplated the transfer of
15% of their excess 20% shares to Madura Coats, or
the incorporation of a company to take over their
excess 20% shares, they were ultimately agreeable that ' "i-'
c the existing Indian shareholders should get 9% out
of that 20% so as to have a 49% holding in the share
capital of NrIL and that 11% should go to new, in·
dependent, Indian Institutional shareholders. The
object of Coats was that any one group of shareholders
should not have a dominating position in the affairs of
D NIIL.

(f) At the Ketti meeting held on October 20 and 21, 1976,
the issue of rights shares was considered as an alter-
native to disinvestment, but that was subject to two
conditions : one, that it should be shown that there
E was a viable development plan which required addi-
tional funds which the existing cash flow of NIIL
could not meet, and two, that the value of the U.K.
equity interest required to be transferred would be no
less favourable than what would be achieved by a direct
F sale of that interest.

(g) Though by his letters of December 11 and 14, 1976
Devagananam had informed Raeburn of the decision of
the Indian shareholders to acquire 60% shares for
themselves, he did not ever say one word about the
G issue of rights shares in any of the numerous communi-
cations which he sent to Raeburn. No reference was
made to the issue of rights shares even in the memoran-
dum of discussions which took place during the visit of
Devagnanam to U.K. from March 29-31, 1977. Thus,
the issue of rights shares was sprung as a surprise on
H the U.K. shareholders.
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 733

(h) The notice dated March 13, 1977 for the meeting of A
the Board of Directors held on April 6, 1977 referred
to the main item on the agenda in ambiguous terms
as : "Policy"lndianisation". In the context of the
discussions which had taken place until then between
the parties, N. T. Sanders who represented the Holding
Company on the B9ard had no means or opportunity B
of knowing that the particular item on the agenda invol-
ved the question of the issue of rights shares.

(i) Since every major decision was taken by the Board
of Directors in consultation with the Holding Company
and since there was lio agenda for the appointment of
c
an additional Director under article 97 of Articles of
Association of NHL, the decision taken by the Board
in its meeting of April 6 on the issue of rights shares
and the appointment of Silverston as an Additional
Director constituted a departure from established
D
practice and showed want of good faith and Jack of fair
play on the part of the Board of Directors of NHL.

(j) The letter dated April 12, the letter of offer dated April
14 and the notice for meeting of the Board of Directors
to be held on May 2, were all got posted by Devagna-
nam as late as on April 27, 1977 at Madras, so as to
E
ensure that these important documents should not
reach the Holding Company in time to enable it to
participate in the all important meeting of the 2nd.
Davagnanam wanted to present a fait accompli to the
Holding Compay so as to prevent it from taking any
pre-emptive action.
F

(k) Whenever NIIL wrote to the Reserve Bank alleging
that the Holding Company was not willing to carry out
the directives of the Bank or to comply with the provi-
sions of FERA, its object was to prejudice the Bank
G
against the Holding Company by drawing a red-herring
across the track.

(1) The directives or the Reserve Bank of India had the
prov1S1ons of FERA were not concerned with who ff
should be tho Indian shareholders of NIIL. All that
they were concerned with was that 60% of the share-
734 SUPREME COURT REPORTS [1981] 3 S.C.R.

A holding must be with the Indian residents. For the
purpose of achieving that result, three courses were
available to NIIL : (I) Disinvestment by foreign
shareholders in favour of Indian shareholders; (2) Issue
of rights shares pursuant to section 81 of the Com-
panies Act, and (3) Action under section 81 (1 -A)
B of the Companies Act for issuing additional
shares to Indian residents other than the existing
Indian shareholders by passing an appropriate spedal
resolution, or if no special resolution was passed, then,
by a majority of the shareholders approving such a
course with the consent of the Central Government.
c The first course was ruled out since Coats had taken
a definite stand that they will not allow the existing
Indian shareholders to obtain the excess shares. As
far as the second alternative was concerned, the Hold-
ing Company had the right to renounce shares offered
to it in favour of any other person under section 81 (I)
D (c) of the Companies Act, which right was denied to it
because, the letter of offer dated April 14 did not
contain a statement regarding renunciation of the right
to take shares and also because that letter was not pos-
ted in time. As regards the third course, if the Holding
Company were given adequate notice of the proposal
E to issue rights shares, it might have taken appropriate
action under section 81 (I-A) of the Companies Act.

(m) The object of the Directors of NIIL in deciding upon
the issue of rights shares, and that too in the manner
in which they did so, was clearly to obtain control of
F the Company and to eschew and eliminate the controll-
ing power which the Holding Company had over NIIL.
The conversion of the existing minority of Indian
shareholders into a majority, far from being a matter
of statutory compulsion, was an act of self-aggrandize-
ment on the part of the exisiting Indian shareholders.
G
(n) The action taken by the Indian shareholders was
against the interest of the Company itself because the
rights shares were issued at par which was far below
their market price.
H
(o) The true motivation of the various steps taken by the
Devagnanam-NEWEY Combination was the furtherence
N.1.1.L. v. N.I.N.H.L. (Chandrachud, C.J.) 735

of the interest of NEWBY's Far-Eastern enterprises, A
coupled with the personal interest of Devagnanam him-
self. Devagnanam was receiving Rs. 96,000/- per
annum in addition to substantial fringe benefits as the
Managing Director of NIIL. He was also getting a
large salary from NEWEY which was £10,000 in 1075
£11,000 in 1976 and £12,000 for the Year ending B
July 31, 1977.

(p) The fact that NIIL informed the Holding Company
on May 21, 1977 which was after the Company Petition
was filed, that the Holding Company could not exercise 0
and will not be allowed to exercise ,any rights in respect
of the whole of 18,990 shares held by it since its appli-
cation under section 29 (4) of FERA was not granted
by the Reserve Bank shows that the object of the
Board of Directors in taking the impugned decision
was to exclude the Holding Company from all contrul
over NHL. That is why NHL advised the Reserve 0
Bank of India by its letter dated May 24, 1977 that no
application for holding any shares by a non-resident
should be allowed by the Bank without the knowledge
and consent of NIIL. That also is the reason why
NHL conveyed to the Reserve Bank by its letter of
September 20, 1977 that until such time as the Com- E
pany Petition was finally disposed of, no licence should
be issued to non-resident shareholders and no remit-
tance of dividend out of India should be permitted with
out the non-resident share-holders reducing their hold-
ing in NHL to less than 40%.
F
The two other conclusions are comprehended within the 16
set out above.

On the basis of the aforesaid formulations, the Division
Bench concluded that the affairs of NIIL were being conducted in
G
a manner oppressive, that is to say, burdensome, harsh and wrong-
ful to the Holding Company. After referring to certain passages
from Palmer's Company Law and Gore-Browne on Companies, and
the decisions of the House of Lords, ths Privy Council, and our own
Courts including the Supreme Court, the Division Bench held that H
since the action of the Board of Directors of NIIL was not in the
interest of the Company but was taken merely for the purpose of
736 SUPREME COURT REPORTS [1981} 3 S.C.R.

welding the Company into 1NEWEY's Far Eastern complex, it was
A just and equitable to wind up the Company.

NHL had filed cross-objections in the High Court appeal
contending that, in any event, the learned Acting Chief Justice was
in error in directing it to pay the sum of Rs. 8, 54,550/- to the Hold-
ing Company. While dealing with the cross-objections, the Division
B Bench held that the injury suffered by the Holding Company on
account of the oppression practised by the Board of Directors of
NHL could not be remedied by the award of compensation and,
therefore, the action of the Board of Directors in issuing the rights
shares had to be quashed. Having found that the Holding Company
was entitled to relief under section 397 of the Companies Act and
c the award of solatium made by the trial Court was not the appro-
priate relief to grant, the Division Bench allowed the appeal fired by
the Holding Company, dismissed the cross-objections in substance
and adjourned the appeal for a fortnight for hearing further
arguments on the nature of the relief to be granted in the case .

D Eventually, by its order dated October 26, 1978 the Division
Bench granted the following reliefs :

(a) Devagnanam was removed forthwith both as the
Managing Director and Director of NHL and was
asked to vacate the bungalow occupied by him, by
E November 1, 1978. He was paid one Year's remune-
ration as compensation foi· the termination of his
appointment as the Managing Director.

(b) The Board of Directors was superseded and an interim -~-·
Board consisting of nine directors proposed by the
F Holding Company was constituted, with Shri M.M.
Sabharwal as an independent Chairman.

(c) Harry Bridges, an executive of COATS, was appointed
as the Managing Director for a period of four months.

G (d) The rights issue made on 6th April, 1977 and the allot·
ment of shares made on 2nd May, 1977 at the Board
meetings were set aside and the Interim Board was
directed to make a fresh issue of shares at a premium
to the existing shareholders, including the Holding
H Company which was to have a right of renunciation.
The new Board was directed to apply to the Controller
N.I.J.L. v. N.I.N.H.L. (Chandrachud, C.J.) 737

of Capital Issues for determining the amount of pre- A
mi um.

(e) The Articles of Association were to be altered by appro-
priate additions and deletions in order to provide for
election of Directors by proportional representation;
~ B
(f) Devagnanam was asked to pay to the Holding Com-
pany ithe costs of appeal and cross-objections. quanti-
fied at Rs. 25,000/-. He was also asked personally to
reimburse the expenses incurred by NIIL in the appeal
and cross-objections. c
These appeals were heard in the first instance by Justice Untwalia
and Justice Pathak. In view of the importance of the questions
arising therein, on some of which our learned Brothers, it seems,
were unable to agree, they desired that the appeals be heard by a
D
larger Bench. That is how the appeals are now before us.

The petition of the Holding Company out of which these
appeals arise sought relief under sections 397 and 398 of the Com-
panies Act, 1956. The case under section 398 not having been
pressed except before the learned trial Judge, we are only concerned E
with the question whether the Holding Company is entitled to relief
under section 397 which reads thus :

"397(1 )-Any members of a company who complain
that the affairs of the company are being conducted in a
manner prejudicial to public interest or in a manner oppres-
sive to any member or members (including any one or more
F
of themselves) may apply to the Court for an order under
this section : provided _such members have a right so to
apply in virtue of section 399.

(2) If, on any application under sub-section (I) the
sourt is of the opinion : G

(a) that the company's affairs are being conducted in a
manner prejudicial to public interest or in a manner
oppressive to any member or members; and

(b) that to wind up the company would unfairly pre- H
judice such member or members, but that other-
738 SUPREME COURT REPORTS [1981] 3 s.c.R.

A wise the facts would justify the making of a winding-
up order on the ground that it was just and equitable
that the company should be wound up; the Court
may, with a view to bringing to an end the matters
complained of, make such order as it thinks fit."

Section 398 provides for relief in cases of mismanagement. Section
B
399(1) restricts the right to apply under sections 397 and 398 to per-
sons mentioned in clauses (a) and (b) of sub-section (I)

. It is necessary to refer briefly to the relevant part of the plead·
ings before examining the charge of oppression made by the Hold·
ing Company against a group of the minority shareholders of NIIL
c After tracing the history of formation and composition of NIIL,
the company petition states that the management of NHL was in
the hands of the Board of Directors in which the Indian group had
a large majority. The Holding Company had implicit trust in them
and was content to leave the management in their hands. After
referring to the impact of section 43A of the Companies Act, the
D compay petition says that in the wake of FERA, discussions and
negotiations were held between the representatives of the Holding
Company and the Management of NIIL amongst themselves as well
as with the Reserve Bank of India, in order to enable NIIL to
obtain the requisite permission for carrying on its business. Para-
graph 13 of the company petition states that the Reserve Bank of
E India by its letter dated May 11, 1976 granted to NHL the
necessary permission subject to the condition, inter alia, that it re,duced
non-resident shareholding to 40 per cent on or before May 17, 1977.
The case of the Holding Company in regard to its own attitude is
stated succinctly in paragraph 14 of the company petition which may
F with advantage be reproduced :

"Discussions were thereafter held on a number of
occasions between the petitioner and the management of
the Company to effectuate the aforesaid condition imposed
G by the Reserve Bank of India which the petitioner was at all
times ready and willing to comply with. The petitioner did
not, however, desire to dilute its holding of shares in the
company by a further issue of capital and preferred to
effectuate the said intention by disinvesting or selling 20% of
its holding in the company. The Reserve Bank of India
H was agreeable to such dilution taking place by the petitio-
ner selling a part of its holding to an Indian resident or
Indian residents. The Reserve Bank had indicated that
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 739

they would be willing for such dilution taking place by a
further. issue of shares provided that additional capital was
required for purposes of expansion. The petitioner was
not willing to sell a part of its holding to the Indian group
as such a sale would result in ti1e Indian group acquiring an
absolute majority interest. Further more under the Articles
of Association of the Company the consent of the existing B
shareholders would be required (apart from the approval of
the Reserve Bank) before the petitioner sold any ofits shares
to an Indian party, other than to a member."

According to the Holding Company, the various steps which
culminated in the allotment of rights shares to the existing Indian c
shareholders were vitiated by ma/a fide, their dominant object being
to convert an existing minority into a majority. The decision taken
in the meeting of the Board on April 6, 1977 was taken deliberately
in haste and hurry in order to pre-empt any action by the Holding
Company to restrain the Board from taking the desired decision.
Tlie Reserve Bank, according to the company petition, would not
D
have been so unreasonable as not to extend the time for complying
with its directive, especially since the Holding Company had agreed
in principle to dilute its holding and the only difference between the
parties was as regards the method by which such dilution was to be
effected. In Paragraph 27 of the company petition it is stated that ·
E
the Devagnanam group decided to issue the rights shares with a view
to securing an illegal and unjust advantage for itself, for improving
its own position in the Company and in order to deprive the Holding
Company of its lawful rights as majority shareholders. In ·this behalf,
reliance is placed on the following facts and circumstances, inter
alia:
F
(a) The Holding Company was never informed of any
specific proposal to make the rights issue.

(b) The notice of the Board meeting of April 6, 1977 did
not refer to the said proposal.
G
(c) The notice offering rights shares to the Holding Com-
pany was not prepared till April 14 and was not posted
till April 27, 1977. By the time the notice was received
by the Holding Company, the Board of NIIL had met H
to allot the rights shares.
740 SUPREME COURT REPORTS (1981] 3 S.C.R.
•
A (d) The time given in the notice was much less than was
customary.

(e) The notice did not contain a statement relating to the
right of the shareholders to renounce the rights
shares.
B
(f) The notice of the Board meeting of May 2, although
dated 19th April 1977, was posted to Sanders on
27.4.1977, thereby ensuring that it would reach him
only after the date of the meeting.

(g) By issuing shares at par, though their value was much
c higher than Rs. 100/- per share, existing Indian share-
holders were enabled to acquire the shares at a gross
undervalue and the Company was put to a he:avy
loss.

(i) The Reserve Bank of India had indicated that dilution
D of the foreign holding by a rights issue could be consi-
dered if the Company required further capital for
expansion. At the discussions and negotiations held
between the Holding Company and the Indian group
it was inter alia agreed that the rights issue would be
made only if there was a viable development plan
E requiring further funds. The rights issue was made
even though no such need for expansion or dev,elop-
ment existed or was referred to.

(j) Though the Reserve Bank had inter alia stipulated that
the said dilution should be effectuated on or before
F 17th May, 1977, the time-schedule is never strictly
insisted upon. There have been numerous instances
when the Reserve Bank has granted reasonable
extension of time to comply with such conditions. The
Board of NHL never requested the Reserve Bank to
grant further time. C. Doraiswamy, the 8th respondent
G stated in his letter dated 9.5.1977 to Mackrael, a
Director of the Holding Company, that it would have
been possible for the Company to get further time
from the Reserve Bank of India.

H The Holding Company contends further that M.J. Silverston was
not a disinterested person, that his vote on the resolution for the
N.1.1.L. v. N.I.N.-H.L. (Chandrachud, C.J.) 741

issue of rights shares had therefore to be ignored in which case there
A
was no quorum of two disinterested directors and that his appoint-
ment as an Additional Director was not valid since the notice for
the meeting of the Board of Directors to be held on 6.4.1977 did not
contain in the agenda any subject regarding appointment of an
additional Director under Article 97 of the Company's Articles of
B
Association.

In answer to these contentions, D~vagnanam filed an elaborate
counter-affidavit on his behalf as well as on behalf of NIIL. In
that counter-affidavit, every one of the material contentions put
forward by the Holding Company has been denied or disputed. 0
Devagnanam contends that it was the Holding Company w:hich
wanted to retain its control over NIIL contrary to the directive of
the Reserve Bank of India, the national policy of the .:central
Government and the provisions of FERA. According to Deva-
gnanam, every action taken in the Board meetings of 6.4.1977 and
2.5.77 was in accordance with law, that Sanders never used to attend
the meetings of the Board, being a non-resident he was not entitled
D
to have notice of the Board meetings, that there was no violation of
section 81 of the Companies Act at all, tliat section 81 (c) of the
Companies Act did not apply to the pre~ent case and that, in view
of the attitude adopted by Coats, NIIL, in order to comply with
the restrictions imposed by the Reserve Bank and to carry out its
directive, had no option but to decide upon the issue of rights
E
shares to bring about the reduction in the non-resident shareholding.
Devagnanam repudiates emphatically the charge of mala jides or of
conduct in breach of the fiduciary duty of NIIL's Board of
Directors.

Having regard to these pleadings, the main question for F
consideration is whether the decisions taken in the meetings of the
Board of Directors of NIIL on April 6 and May 2, 1977 constitute
acts of oppression wit!Un the meaning of section 397 of Companies
Act, 1956. The High Court has answered this question in the
affirmative and has issued consequential directions in regard to the
management of NHL's affairs. The findings recorded by the High
G
Court in appeal have been challenged before us with 'Vehemence and
ability in an equal measure, matched eqully in both respects on
either side. Learned counsel who led the arguments on the rival
sides, Shri F.S. Nariman for the appellants and Shri H.M. Seervai
ff
for the respondents, have drawn our attention in jcopious details to
742 SUPREME COURT REPORTS (198!] 3 S.C.R.•

A the correspondence that transpired between the parties, the corres-
pondence with the Reserve Bank of India, the discussions at Ketty
and Birmingham which preceded the impugned decisions, the con-
duct of Devagnanam as a man and a Managing Director, the attitude
of Coats stated to arise out of their world-wide business interests
and the predicament of NEWEY which was willing to strike but
was afraid to wound its partner Coats. We have also been taken
B through several decisions and texts bearing particularly on :

(a) The meaning of 'oppression' of the members of a
Company within the terms of section 397 and the
circumstances in which a Company can be wound up
under the just and equitable clause under section 433.
c (f) of the Companies Act, 1956;

(b) The approach which the court should adopt in cases
wherein mala fides and abuse of power on the part of
Directors are alleged but no oral evidence is led;
(c) The fiduciary powers of Directors in issuing shares;
D
(d) The impact of the provisions ·of the Foreign Exchange
Regulation Act, 1973 with particular reference to
sec~ion 2 (p), (q) and (u) and section '.<9;

(e) The question as to whether it is necessary to issue a
prospectus under section 81 (l) (c) of the Companies
E
Act;

(f) The constraints on public and private companies under
the Companies Act, and their duties and obligations,
with particular reference to sections 2 (35), 2(37), 3 (l)
(iii) and (iv) and sections 43A and 81 of the Companies
F Act;
'-
(g) The relationship of partnership between the Indian
shareholders, Coats and NEWEY who owned respec-
tively 40%, 30%, and 30% of the shareholding in NIIL;
G
(h) The question whether Silverston was an 'interested'
Director within the meaning of section 300 of the .
Companies Act; and

H (i) Whether Silverston's appointment as an Additional
Director in the meeting of the Board held on April 6,
1977 was, in the circumstances, valid.
N.1.1.L. v. N.I.N.H.L. (Chandrachud, C.J.) 743

Coming to the Jaw as to the concept of 'oppression' section A
397 of our Companies Act follows closely the language of section
210 of the English Companies Act of 1948. Since the decisions on
section 210 have been followed by our Court, the English decisions
may be considered first. The leading case on 'oppression' under
section 210 is the decision of the House of Lords in Scottish Co-op.
Whofrsale Society Ltd. v. Meyer. (1) Taking the dictionary meaning B
of the wo(d 'oppression', Viscount Simonds said at page 342 that
the appellant society could justly be described as having behaved
towards the miuority shareholders in an 'oppressive' manner, that
is to say, in a manner "burdensome, harsh and wrongful". The
learned Law Lord adopted, as difficult of being .bettered, the words
of Lord President Cooper at the first hearing of the case to the effect c
that section 210 "warrants the court in looking at the business
realities of the situation and does not confine them to a narrow
legalistic view". Dealing with the true character of the company,
Lord Keith said at page 361 that the company was in substance,
though not in law, a partnership, consisting of the society, Dr.
Meyer and Mr. Lucas and whatever may be the other different legal D
consequences following on one or other of these forms of combina-
tion, one result followed from the method adopted, "which is com-
mon to partnership, that there ·should be the utmost good faith
between the constituent members". Finally, it was held that the
court ought not to allow technical pleas to defeat the beneficent
provisions of section 210 (page 344 per Lord Keith; pages 368-369 E
per Lord Denning).

In Meyer (supra) above referred to, the House of Lords was dealing
with a case in which the appellant coinpany was accused of having
committed acts of oppression against its subsidiary. In that context F
it was held that the parent company must, if it is engaged in the
same class of business, accept as a result of having formed such a
subsidiary an obligation so to conduct, what are in a sense its own
affairs, as to deal fairly with its subsidiary. In Re Associated Tool
Industries Ltd. (2) of which judgment a photographic copy was
supplied to us, Joske J. held that th.e rule in Meyer (supra) G
involved the consequence that the subsidiary companies must also
exercise good faith to the holding company asd not merely that the
latter should so act to the former.

(I) (1959] AC. 324. H
(2) [1964] Argus Law Reports, 75.
744 SUPREME COURT REPORTS [1981] 3 s.c.R.

A In an application under section 210 of the English Companies
Act, as under section 397 of our Companies Act, before granting
relief the court has to satisfy that to wind up the company will
unfairly prejudice the members complaining of oppression, but that
otherwise the facts will justify the making of a winding up order on
the ground that it is just and equitable that the company should be
B wo4nd up. The rule as regards the duty of utmost good faith, on
which stress was laid by Lord Keith in Meyer, (supra) received further
and closer consideration in Ebrahimi v. Westbourne Galleries Ltd.,(1)
wherein Lord Wilberforce considered the scope, nature and extent
of the 'just and equitable' principle as a ground for winding up a
company. The business of the respondent company was a very
c profitable one and profits used to be distributed among the directors
in the shape of fees, no dividends being declared. On being removed
as a director by the votes of two other directors, the appellant
petitioned for an order under section 210. Allowing an appeal from
the judgment of the Court of Appeal, it was held by the House of
Lords that the words 'just and equitable' which occur in section 222
D (f) of the English Act, corresponding to our section 433 (f), were
not to be construed ejusdem generis with clauses (a) to (e) of section
222 corresponding to our clauses. (a) to (e) of section 433. Lord
Wilberforce observed that the 'words' just and equitable' are a
recognition of the fact that a limited company is more' than a mere
legal entity, with a personality in law of its own; and that there is
E room in company law for recognition of the fact that behind it, or
amongst it, there are individuals, with rights, expectations and
obligations inter se which are not necessarily submerged in the com-
pany structure :

"The 'just and equitable' prov1s1on does not, as tbe
F respondents suggest, entitle one party to disregard the
obligation he assumes by entering a company, nor the court
to dispense him from it. It does, as equity always does,
enable the court to subject the exercise of legal rights to
equitable considerations; considerations, that is, of a
personal character arising between one individual and
G another, which may make it unjust or inequitable, to insist
on legal rights, or to exercise them in 'a particular
way". (p 379)

H (I) (1973] A.C. 360 (H L.).
N.1.1.L. v. N.I.N.H.L. (Chandrachud, C.J.) 745

Observing that the description of companies as "quasi-partnerships" A
or "in substance partnerships" is confusing, though convenient,
Lord Wilberforce said :

"company, however small, however domestic, is a
company not a partnership or even a quasi-partnership and
it is through the just and equitable clause that obligations, B
common to partnership relations, may come in". (p 380)

Finally, it was held that it was wrong to confine the application of
the just and equitable clause to proved cases of mala fides, because
to do so would be to negative the generality of the words. As
observed by the learned Law Lord in the same judgment, though in
c
another context :

"Illustrations may be used, but general words should
remain general and not be reduced to the sum of particular
instances." (pp 374-375) D

In his judgment in Re Westbourne Galleries (supra) Lord
Wilberforce bas referred at two places to the decision in Blissett v.
Daniel, (1) which is recognised as the leading authority in the Law
of Partnership on the duty of utmost good faith which partners owe
to one another. Lindley on Partnership (14th Edition, pages 194-95) E
cites Blissett v. Daniel (1) as an authority for the proposition that :

"The utmost good faith is due from every member of
a partnership towards every other member; and if any
dispute arise between partners touching any transaction by
which one seeks to benefit himself at the expense of the F
firm, he will be required to show, not only that he has the
law on his side, but that his conduct will bear to be tried
by the highest standard of honour".

The fact that the company is prosperous and makes substantial
profits is no obstacle to its being wound up if it is just and equitable G
to do so. This position was accepted in the decision of the Court
of Appeal in Re Yenidge Tobucco Co. (2) and of the Privy Council
in Loch v. John Blackwood (3).

(1) 68 E.R. 1024. H
(2) [1916] 2 Ch. 426.
(3) [1924] A.C. 783.
746 SUPREME COURT REPORTS [1981] 3 s.c.R.

A The question sometimes arises as to whether an action in
contravention of law is per se oppressive. It is said, as was done
by one of us, N.H. Bhagwati J. in a decision of the Gujarat High
Court in S.M. Ganpatram v. S:iyaji Jubilee Cotton & Jute Mills
Co., (1) that "a resolution passed by the directors may be perfectly
legal and yet oppressive, and conversely a resolution which is in
B contravention of the law may be in the interests of the shareholders
and the company". On this question, Lord President Cooper
observed in Elder v. Elda (2) :

"The decisions indicate that conduct which is techni·
cally legal and correct may nevertheless be such as to justify
the application of the 'just and equitable' jurisdiction, and,
c conversely, that conduct involving illegality and contraven·
tion of the Act may not suffice to warrant the remedy of
winding up, especially where alternative remedies are
available. Where the 'just and equitable' jurisdiction has
been applied in cases of this type, the circumstances have
D always, I think, been such as to warrant the inference that
there has been, at least, an unfair abuse of powers and an
impairment of confidence in the probity with which the
company's affairs are being 'conducted, as distinguished
from mere resentment on the part of a minority at being
outvoted on some issue of domestic policy".
E
Neither the judgment of Bhagwati J. nor the observations in Elder
are capable of the construction that every illegality is per se
oppressive or that the illegality of an action does not bear upon its
oppressiveness. In Elder a complaint was made that Elder had not
F received the notice of the Board meeting. It was held that since it
was not shown that any prejudice was occasioned thereby or that
Elder could have bought the shares had he been present, no com-
plaint of oppression could be entertained merely on the ground that
the failure to give notice of the Board meeting was an act of
illegality. The true position is that an isolated act, which is contrary
G to law, may not necessarily and by itself support the inference that ..,.
.

the law was violated with a ma/a fide intention or that such violation
was burdensome, harsh and wrongful. But a series of illegal acts
following upon one another can, in the context, lead justifiably to
the conclusion that they are a part of the same transaction, of which
H
(1) [1964] 34 Company Cases 830-31.
(2) (1952] s.c. 49.
N.J.J.L. v. N.I.N.H.L. (Chandrachud, C.J.) 747

the object is to cause or commit the oppression of persons against A
whom those acts are directed. This may usefully be illustrated by
reference to a familiar jurisdiction in which a litigant asks for the
transfer of his case from one Judge to another. An isolated order
passed by ~ Judge which is contrary to law will not normally support
the inference that he is biassed; but a series of wrong or illegal
orders to the prejudice of a party are generally accepted as suppor- B
ting the inference of a reasonable apprehension that the Judge is
biassed and that the party complaining of the orders will not get
justice at ·his hands.

In England, after the decision of the House of Lords in Meyer,
(supra) a restricted interpretation has been given to section 210 by c
the Court of Appeal in re Jermyn St. Turkish B;ahs, (1 ) which has
adversely criticised by writers on Company Law (see Palmer's Com-
pany Law, 22nd ed., page 613, paras 57-06, 57-07; Gore Brown on
Companies, 43rd ed., para 28-12). In India, this restrictive develop-
ment has no place, for, .in S.P. Jain v. Kalinga Tubes, (2) Wanchoo J.
accepted the broad and liberal interpretation given to the C')urt's D
powers in Meyer.

In Kalinga Tubes, Wanchoo J. referred to certain decisions
under section 210 of the English Companies Act including Meyer
(supra) and observed :

"These observations from the four cases referred to
above apply to section 397 also which is almost in the
same words as section 210 of the English Act, and the
question in each is whether the conduct of the affairs of the
company, by the majority shareholders was oppressive to
the minority shareholders and that depends upon the facts F
proved in a particular case. As has already been indicated,
it is not enough to show that there is just and equitable
. cause for winding up the company, though that must'be
shown as preliminary to the application of section 397. It
must further be &hown that the conduct of the majonty
shareliolders was oppressive to the minority as members G
and this requires that events have to be considered not in
isolation but as a part of a consecutive story. There must
be continuous acts on the part of the majority shareholders,

(!) (1971) 3 All ER. 184.
H
(2) [1965j 2 S.C.R. 720, 737,
748 - SUPREME COURT REPORTS (1981] 3 S.C.R.

continuing upto the date of petition, showing that the·
A affairs of the company were being conducted in a manner
oppressive to some part of the members. The conduct
must be burdensome, harsh [and wrongful and mere lack of
confidence between the majority shareholders and the
minority shareholders would not be enough unless the lack
of confidence springs from oppression of a minority by a
B
majority in the management of the company's affairs, and
such opperssion must involve at least an element of lack of
probity of fair dealing to a member in the matter of his
proprietary rights as a shareholder. It is in the light of
these principles that we have to consider the facts ........ .
c with reference to section 397''.

(page 737)

At pages 734-735 of the judgment in Kalinga Tubes, Wanchoo J.
has reproduced from the judgment in Meyer, the five points which
D were stressed in Elder. The fifth point reads thus :

"The power conferred on the Court to grant a remedy
in an appropriate case appears to envisage a reasonably
wide discretion vested in the Court in relation to the order
sought by a complainer as the appropriate equitable
E alternative to a winding-up order".

It is clear from these various decisions that on a true construc-
tion of section 397, an unwise, inefficient or careless conduct of a
Director in the performance of his duties cannot give rise to a claim
F for relief under that section. The person complaining of oppression
must show that he has been constrained to submit to a conduct
which lacks in probity, conduct which is unfair to him and which
causes prejudice to him in the exercise of his legal and proprietary
rights as shareholder. It may be mentioned that the Jenkins
G Committee on Company Law Reform had suggested the substitution
of the word 'Oppression' in section 210 of the English Act by the
words 'unfairly prejudical' in order to make it clear that it is not
necessary to show that the act complained of is illegal or that it
constitutes an invasion of legal rights (see Gower's Company Law,
H 4th edn., page 668). But that recommendation was not accepted
and the English Law remains the same as in Meyer and in Re H.R.
N.I.I.L. v. NJ.N.H.L. (Chandrachud, C.J.) 749

Harmer Ltd., (1) as modified in Re Jermyn St. Turkish Baths. A
(supra) We have not adopted that modification in India.

Having seen the legal position which obtains in cases where a
member or members of a company complain under section 397 of
the Companies Act that the affairs of the company are being con-
ducted in a manner oppressive to him or them, we can proceed to 8
consider the catena of facts and circumstances on which reliance is
placed by the Holding Company in support of its case that the con-
duct of the Board of Directors of NIIL constitutes an act of oppres-
sion against it. There is, however, one matter which has to be
dealt with before adverting to facts, namely, the provisions of FERA
their impact on the working of NIIL and on the right of the Holding c
Company to continue to hold its shares in NIIL. This we consider
necessary to discuss before an appraisal of the factual situation
since, without a proper understanding of the working of FERA, it
would be impossible to appreciate the turn of intertwined events.
It is in the setting of FERA that .the significance of the various
happenings can properly be seen. D

The Foreign Exchange Regulation Act, 46 of 1973, is "An
Act to consolidate and amend the law regulating certain payments,
dealings in foreign exchange and securities, transactions indirectly
affecting foreign exchange and the import and export of currency
and bullion, for the conservation of the foreign exchange resources E
of the country and the proper utilisation thereof in the interests of
the economic development of the country". It repealed the earlier
Act, namely, The Foreign Exchange Regulation Act, 1947, and came
into force on January 1, 1974.

"Person resident in India" is defined in clause (p) of section 2 F
to mean:

(i) a citizen of India, who has, at any time after the 25th
day of March 1947, been staying in India, but does not
include a citizen of India who has gone out of, or stays
outside, India, in either case- G
• (a) for or on taking up employment outside- India, or
,, ·~~~"'
(b) for carrying on outside India a!business · ot'Jvoca-
tion outside India, or
H
(1) [1959] WLR 62.
750 SUPREME COURT REPORTS [1981] 3 S.C.R.

A (c) for any other purpose, in such circumstances as
would indicate his intention to stay outside India
for an uncertain period;

(ii) a citizen of India, who having ceased by virtue of
paragraph (a} or paragraph (b) or paragraph (c) of sub-
B clause (i) to be resident in India, returns to or stays in
India, in either case-

(a) for or on taking up employment in India, or

(b) for carrying on in India a business or vocation
.,.,..,.•.
c in India, or

(c) for any other purpose, in such circumstances as
would indicate his intention to stay in India for an
uncertain period.

D "Person resident outside India" according to clause (q)
means "a person who is not resident in India". Under
clause (u) "security" means "shares, stocks, bonds,"
etc.

Section 19 (1) provides :
E
"Notwithstanding anything contained in section 81 of
the Companies Act, 1956, no person shall, except with
the general or special permission of the Reserve Bank.

F
(a) take or send any security to any place outside
India;
(b) transfer any security, or create or transfer any
interest in a security, to or in favour of a person
resident outside India;
G
(d) issue, whether in India or elsewhere, any security •
which is registered or to be registered in India, to
· ·a person resident outside India;"
H
Section 29 which is directly relevant for our purpose reads
thus :
/

N.I.I.L. v. N.I.N.H.L. (Chandrachud C.J.) 751

"29. {I) Without prejudice to the provisions of sec- A
tion 28 and section 47 and notwithstanding anything con-
tained in any other provision of this Act or the provisions
of the Companies Act, 1956, a person resident outside
India (whether a citizen of India or not) or a person who
is not a citizen of India but is resident in India, or a
company (other than a banking company) which is not B
incorporated under any law in force in India or in which
the non-resident interest is more than forty per cent,
or any branch of such company, shall not, except with
the general or special permission of the Reserve Bank,-

{a) carry on in India, or establish in India a branch,
c
office or other or other place of business for
carrying on any activity of a trading, commercial
or industrial nature, other than an activity for
the carrying on of which permission of the
Reserve Bank has been obtained under section 28;
D
or

(2) {a) where any person or company (including its
branch) referred to in sub-section (I) carries on any :ictivity
referred to in clause( a) of that sub-section at the commence-
ment of this Act or has established a branch, office or other
place of business for the carrying on of such activity at
E
such commencement, then, such person or company (in-
cluding its branch) may make an application to the Reserve
Bank within a period of six months from such commence-
ment or such further period as the Reserve Bank may
allow in this behalf for permission to continue to carry on
F
such activity or to continue the establishment of the
branch, office or other place of business for the carrying on
of such activity, as the case may be.

(b) Every application made under clause (a) shall be
in such form and contain such particulars as may
G
be specified by the Reserve Bank.

(c) Where any application has been made under
clause (a), the Reserve Bank may, after making
such inquiry as it may deem fit, either allow the H
application subject to such conditions, if any, as
752 SUPREME COURT REPORTS [1981] 3 S.C.R.

A the Reserve Bank may think fit to impose or
reject the application :

(4) (a) Where at the commencement of this Act any person
or company (including its branch) referred to in sub-
B
section (I) holds any shares in India of any company
referred to in clause (h) of that sub-section, then, such
person or company (including its branch) shall not be
entitled to continue to hold such shares unless before
the expiry of a period of six months from such com-
mencement or such further period as the Reserve
Bank may allow in this behalf such person or
company (including its branch) has made an applica-
tion to the Reserve Bank in such form and containing
such particulars as may be specified by the Reserve
Bank for permission to continue . to hold such
shares.
D
(b) Where an application has been made under clause (a)
the Reserve Bank may, after making such inquiry as
it may deem fit, either allow the application subject to
E such conditions, if any, as the Reserve Bank may think
fit to impose or reject the application :"

It is clear from these provisions that NIIL, being a Com-
pany in which the non-resident interest of the Holding Company
was more than 40%, could not carry on its business in India
F except with the permission of Reserve Bank of India. An applica-
tion for permission to continue to carry on such business had to
be filed within a period of six months from the commencement of
the Act or such further period as the Reserve Bank may allow.
The time for filing the application was extended in all cases by two
months and, therefore, it could be filed by August 31, 1974. NIIL
G filed its application three days late on September 3, 1974, and
the application was granted by the Reserve Bank on certain condi ·
tions, by its letter dated May 10, 1976. Under the terms and con-
ditions imposed by the Reserve Bank, the non-resident interest of
the Holding Company, which came to about 60%, had to be
H brought down to 40% within one year of the receipt of the letter
dated May JO, 1976, that is to say before May 17, 1977.
N.l.I.L. v. N.I.N.H.L. (Chandrachud C.J.) 753

By reason of section 29 (4) of FERA, the Holding Company A
too had to apply for permission to hold its shares in NIIL. It
applied to the Reserve Bank for a Holding licence on September 18,
1974. The application which was filed late by . I 8 days is
still pending with the Reserve Bank and is likely to be disposed of
after the non-resident interest of the Holding Company in NIIL is
reduced to 40%. B

There is a sharp controversy between the parties on the ques-
tion as to whether May 17, 1977 was a rigid dead-line by which the
reduction of the non-resident interest had to be achieved or whether
NIIL could have applied to the Reserve Bank before that date for
extension of time to comply with the Bank's directive, in which case, c
it is urged, no penal consequences would have flown. We will deal
later with this aspect of the matter, including the question of busi-
ness prudence involved in applying to the Reserve Bank for such
an extension of time.
D
Shri Nariman raised at the outset an objection to a finding
of mala fides or abuse of the fiduciary position of Directors being
recorded on the basis merely of affidavits and the correspondence,
against the NHL' S Board of Directors or against Devagnanam
and his group. He contends: Under the Company Court Rules
framed by this Court, petitions, including petitions under sec-
E
tion 397, are to be ,heard .in the open court (Rules I I (12) and
Rule 12 (I), and the practice and procedure of the Court and of
the Civil Procedure Code are applicable to such petitions (Rule 6).
Under Order XIX Rule 2 of the Code, it is open to a party to
request the Court that the deponent of an affidavit should be F
asked to submit to cross-examination. No such request was made
in the Trial Court for the cross-examination of Devagnanam who,
amongst all those who filed their affidavits, was the only person
having personal knowledge of everything that happened at every
stage. Why he did or did not do certain things and what was his
attitude of mind on crucial issues ought to have been e.licited in G
cross-examination. It is not permissible to rely argumentively on
inferences said to arise from statements made in the correspondence,
unl~ss such inferences arise irresistibly from admitted or virtually
admitted facts. The verification clause of Mackrael's affidavit
shows that he had no personal knowledge on most of the material
points. Raeburn who, according to Mackrael, was the Chief H
negotiator on behalf cf the Holding Company in the Birmingham
meeting did not file any affidavit at all. Whitehouse, the Secretary
754 SUPREMB COURT REPORTS [1981) 3 S.C.R.

A of the Holding Company and N.T. Sanders who was the sole repre·
sentative of the Holding Company ~n NTIL's Board of Directors,
did file affidavits but they are restricted to the question of the late
receipt of the letter of offer of shares and the notice for the Board
meeting of May 2, 1977. Their affidavits being studiously silent on
all other important points and the affidavit filed on behalf of the
B Holding Company being utterly inadequate to support the charg1~
of ma/a fides or abuse of the Directors' fiduciary powers, it was
absolutely essential for the Holding Company to adduce oral evi·
dence in support of its case .or at least to ask that Dev agnanam
should submit himelf for cross-examination. This, according to
Shri Nariman, is a fundamental.infirmity from which the case of
c the Holding Company suffers and therefore, this Court ought not
to record a finding of ma/a fides or of abuse of powers, especially
when such findings are likely to involve grave consequences, moral
and material, to Devagnanam and jeopardise the very functioning of
NIIL itself.

D In support of his submission, Shri Nariman has relied upon
many a case to show that issues of ma/a fides and abuse of fiduciary
powers are almost always decided not on the basis of affidavits but
on oral evidence. Some of the case> relied upon in this connec-
tion are : Re. Smith & Fawcett Ltd.,(1) Nana/al Zaver v. Bombay
Life Assurance,(') Plexcy v. Mitis(') Hogg v. Cramphorn(4) Mills
E v. Mills, (5 ) Harlowe's Nominees( 6) and Howard Smith v. Amphol.C)

We appreciate thatit is generally unsatisfac_tory to record a
finding involving grave consequences to a person on the basis of
affidavits and documents without asking that person to submit to
cross-examination. It is true that men may lie but documents will
F not and often, documents speak louder than words. But a total
reliance on the written word, when probity and fairness of con-
duct are in issue, involves the risk that the person accused of
wrongful conduct is denied an opportunity to controvert the infe-
rences said to arise from the documents. But then, Shri Nariman's
objection seems to us a belated attempt to avoid an inquiry into· the
G
(1) [1942] l All ER 542, 545.
(2) [1950) S.C.R. 390, 394.
(3) [1920) l Chancery 77.
(4) [1967) l Chancery 254, 260.
(5) 60 C.L.R. 150, 160.
H (6) 121 CLR .483, 485.
(7) [1974) A.C. 821, 831.
N.1.1.L. v. N.I.N.H.L. (Chandrachud, C.J.) 755

conduct and motives of Devagnanam. The Company Petition was A
argued both in the Trial Court and in the Appellate Court on the
basis of affidavits filed by the parties, the correspondence and the
documents. The learned Appellate Judges of the High Court have
observed in their judgment that it was admitted, that before the
learned trial Judge, both sides had agreed to proceed with the
matter on the basis of affidavits and correspondence only and B
neither party asked for a trial in the sense of examination of wit-
nesses. In these circumstances, the High Court was right in holding
that, having taken up the particular attitude, it was not open to
Devagnanam and his group to cont'i:nd that the allegation of ma/a
fides could not be examined, on the basis of affidavits and the corres-
pondence only. There is ample material on the record of this case c
in the form of affidavits, correspondence and other documents, on
the basis of which proper and necessary inferences can safely and
legitimately be drawn.

Besides, the cases on which counsel relies do not all support
his submission that from mere affidavits or correspondence, ma/a n
fides or breach of fiduciary poVI er ought not to be inferred. In
Re Smith & Fa wee// Ltd., (supra) Lord Greene, after stating that
he strongly disliked being asked on affidavit evidence alone to draw
up inferences as to the bona fides or mala fides of the actors,
added that this did not. mean that it is illegitimate in a proper case
to draw inferences as to bona fides or ma/a fides in cases, where
E
there is on the face of the affidavits, sufficient justification for
doing so. In Nana/al Zaver, (supra) the judgment of Kania C.J.
contains.a statement at page 394 that 'Considerable evidence was
led in the triai Court on the question of bona fides' but it is not
clear what kind of evidence was so led and besides, the fact that
oral evidence was led in some cases does not mean that it must be ·
F
led in all cases or that without it, the matter in issue cannot be
found upon. We may mention that in Punt v. Symons,( 1) Fraser v.
Whalley(') and Hogg v. Cramphorn, (supra) the breach of fiduciary
duty was inferred from affidavit evidence.
G
We have therefore no hesitation in rejecting the submission
that we ought not to record a finding of ma/a jides or abuse of fidu-
ciary power on the basis of the affidavits, correspondence and the

· (1)[1903) 2 Ch. 506.
(2) 71 E.R. 361. H
756 SUl'REME COURT REPORTS (1981] 3 s.c.R.

A other documents which are on the record of the case. May it be
said that these are on the record by consent of parties. Not merely
that, but more documents were placed on the record, mostly by
consent of parties, as the case progressed from stage to stage. A
very important document, namely, Devagnanam's telex to Raeburn
dated May 25, 1977 was put on the record for the first time before
B us since Shri Nariman himself desired it to be produced, waiving
the protection of the caveat "without prejudice". That shows that
the parties adopted willingly a mode of trial which they found to be
most convenient and satisfactory.

That takes us to the question as to whether on the basis of
c the material which is on the record of the case, it can be said that
the decision taken by NIIL's Board of Directors in their meetings
of April 6 and May 2, 1977 constitute acts of oppression as against
the Holding Company. The case of the Holding Company as put
forward by Shri Seervai is like this :

D (i) Devagnanam kept Raebum and Coats under the impres-
siqn that negotiations were still going on and were not
to be treated as concluded while, in reality, he had
made up his mind to treat the matter as at an end.

(ii) He kept the Holding Company in total ignorance
E of the steps which he was taking in behalf of the
issuance and allotment of the rights shares. The copy
of the letter of the Reserve Bank dated March 30, 1977
which is said to have spurred the decision taken in the
meetings of April 6 was not sent to the Holding Com-
pany though Devagnanam had stated in his letters
F dated April 12 to Raeburn that the said copy was being
enclosed along with that letter. Deliberately and
designedly, the letter of offer dated April 14, 1977
meant for the Holding Company in England was not
posted until April 27. Similarly, the notice calling a
meeting of the Board on May 2 was not posted till
G April 27. The notice to Manoharan too was posted
as late as on April 27, since he was believed to be:
siding with Coats. The letter of offer and the notice
of meeting of May 2 which were posted at Madras on
April 27 were received by the Holding Company on
H May 2, after the Board's meeting for allotment of rights
shares was held.
N.J.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 757
A
(iii) The Reserve Bank of India was not informed of the
proposal to issue right shares to the existing share-
holders although it was the most obvious thing to do,
in response to its Jetter dated March 30, 1977, calling
upon NHL to submit its proposal for reducing its
non-resident interest without delay. B
(iv) No application was made to the Controller of Capital
Issues for fixing the premium on rights shares, not-
withstanding that the Reserve Bank had informed
NHL, that if necessary, an application to that effect
may be made to the Cont-roller of Capital Issues. c
(v) The whole idea was to cut off all sources of informa-
tion from Raeburn and Coats and to confront them
with the fait accompli of the allotment of rights shares
to the Indian shareholders, including the shares for-
mally offered to the Holding Company which were not D
allotted to it on the ground of its non-compliance with
the letter of offer.

(vi) The agenda of the meetings of April 6 and May 2, 1977
was purposely expressed in vague terms : 'Policy-
lndianisation', in order that the Holding Company E
should not know that the reduction of the non-resident
interest was proposed to be effected by the issue of
rights shares. By suppressing from the knowledge of
the Holding Company what was its right to know,
and what was the duty of the Board's Secretary to
convey to it, Devagnanam succeeded in achieving his F
purpose on the sly and pre-empted any action by the
Holding Company to restrain the holding of the
meeting, the issue of rights shares and the allotment
thereof exclusively to the existing shareholders (barring
Manoharan).
G
(vii) Silverston was appointed as an additional Director in
the meeting of April 6 to make up the quorum of two
"disinterested" directors even though he was in the true
sense not a disinterested person in the decision taken
in thaf meeting. The appointment of additional H
directors was not even an item on the agenda of the
meeting.
758 SUPREME COURT REPORTS [1981] 3 S.C.R.

A (viii) Devagnanam was emboldened to take this course
because he believed that no matter how wrongful his
conduct, he could count upon the support of NEWEY
to see that he was not brought to book in a court of
justice for his wrongful conduct. He even attempted
to thwart the Company Petition and render it infru-
B ctuous by persu_adiug NEWEY to withdraw the power
of attorney executed by them, authorizing the filing of
the petition.

(ix) In these machinations, Devagnanam was actuated by
the sole desire to acquire the control of NHL for his
c personal benefit, by ousting the Holding Company
from its control over the affairs of NHL.

(x) In fact, the rights shares were issued at par, though
their market value was far greater, as a measure of
personal aggrandisement in the supposition and fore-
D thought that such shares will inevitable go, to Deva-
gnanam and his group, This was blantantly in breach
of the fiduciary obligation of the Directors.

(xi) By these means and methods, which totally lacked in
probity, Devagnanam succeeded in converting the
existing majority into a minority and the minority into
E
a majority, a conduct which is burdensome, harsh and
unlawful, qua the existing majority.

According to Shri Seervai, the question before the Com:t is not
whether the issue of rights shares to the existing Indian shareholders
only, amounted to oppression but whether, the offer of rights shares
F to all existing shareholders of NIIL but the issue of rights shares to
existing Indian shareholders only, constituted oppression of the
Holding Company on the facts and circumstances disclosed in the
case. This argument raises questions regarding the interpretation
of sections 43A and 81 of the Companies Act, 1956.

G These contentions of the Holding Company have been con-
troverted by Shri Nariman, according to whom, the appellate Court
has taken a one-sided view of the matter which is against the weight
of evidence on the record. Counsel contends that Devagnanam had
done all that lay in his power to persuade the Holding Company to
H disinvest so as to reduce its holding in NIIL to 40%, that the Direc-
N.I.N.L. v. N.I.N.H.L. (Chandrachud, C.J.) 759

tors of NIIL were left with no option save to decide upon the issue A
of rights shares, since disinvestment was a matter of the Holding
Company's volition, that the wording of the agenda of the meetings
of April 6 and May 2 conveyed all that there was to say on the
subject since, in the background of the negotiations which had taken
place between the parties, it was clear that what was meant by
'Policy-Indianization' and 'Allotment of Shares' was the allotment B
of rights shares in order to effectuate the policy of the Reserve Bank
that the Indianization of the Company should be achieved by the
reduction of the non-resident holding to 40%, that Coats refused
persistently, both actively and passively, either to disinvest or to
consider the only other alternative of the issue of rights shares, and
that the impugned decisions were taken by the Board of Directors c
objectively in the larger interests of the Company. According to
Shri Nari man, Coats left no doubt by their attitude that their real
interest lay in their worldwide business and they wanted to bring
the working of NIIL to a grinding halt with a view to eliminating
an established competitor from their business. It is denied by counsel
that important facts or circumstances were deliberately suppressed D
from the Holding Company or that the letter of oJer and the notice
of the Board's meeting of May 2 were deliberately posted late on
April 27. It is contended that neither by the issue of rights shares
nor by the failure to give the right of renunciation to the Holding
Company was any injury caused to its proprietary rights as a
shareholder in NHL. As a result of the operation of FERA, the E
directives issued by the Reserve Bank thereunder and because of the
fact that NIIL had retained its old Articles after becoming a public
company under section 43A of the Companies Act, the Holding
Company could neither have participated in the issue of rights shares
nor could it have renounced the rights shares offered to it in favour
or'an outsider, not even in favour of a resident Indian Company F
like Madura Coats. It is denied that Silverston was not a disinterested
Director or that his appointmant as an additional Director was
otherwise invalid. Counsel sums up his argument by saying that
the Board of Directors of NHL had in no manner abused its fiduciary
position and that far from their conduct being burdensome, harsh
and wrongful, it was the attitude of Coats which was unfair, unjust G
and obstructive. Coats having come into an equitable jurisdiction
with unclean hands, contends Shri Nariman, no relief should be
granted to them assuming for the sake of argument that Devagnanam
from the position of Managing Director, are characterised by counsel
as wholly uncalled for, transcending the exigencies of the situation. H
760 SUPREME COURT REPORTS [1981] 3 S.C.R.

A It seems to us unquestionable that Devagnanam played a key
role in the negotiations with the Holding Company and ultimately
master-minded the issue of rights shares. He occupied a pivotal
position in NIIL, having been its Director for over twenty years and
a Managing Director over fifteen years, in which capacity he held
an undisputed sway over, the affairs of NHL. The Holding Company
B had nominated only one Director on the· Board of NIIL, namely,
N.T. Sanders, who resided in England and hardly ever attended the
Board's meetings. Devagnanam was thus a little monarch of all
that he surveyed in Ketty. He had a large personal stake in NIIL's
future since he and his group held neady 30% shares in it, the other
Indian shareholders owning a mere 10%. In the 60% share capital
c owned by the Holding Company, Coats and NEWEY were equal
sharers with the result that Coats, NEWEY and Devagnanam each
held an approximately 30% share capital in NIIL. This equal
holding created tensions and rivalries betwee11 Coats and Deva-
gnanam, NEWEY preferring to side with the latter in a silent,
unspoken manner. Eventually. after the filing of the Company
D Petition, Coats bought over NEWEY's interest in NHL sometime
in July 1977.

-The picture which Devagnanam ha~ drawn of himself as a
person deeply committed to Ketty, and as having built up the
business with scrupulous regard to the observance of Foreign
E
Exchange Regulations and Indian Laws in contradistinction to Coats
who, he alleged, wanted to contravene the Foreign Exchange
Regulations of our country is not borne out by the correspondence.
In fact, the letter which he wrote to Shread of Newey-Goodman
Ltd. on August 11, 1973 (which was filed by consent in the Appeal
Court) shows that he wanted to dispose of his shares at a large
F
premium by officially receiving the par value in Rupees in India and
obtaining the balance in foreign currency outside India. Nevertheless,
he stated on oath in para 13 of his rejoinder affidavit that "it is not
true that in selling my shares, I wanted a part of the consideration
in foreign exchange". The said letter discloses that over and above
G proposing to make a large profit in contravention of the Foreign
Exchange Regulations and the tax laws of India by receiving money
outside India, Devagnanam proposed to take away from Ketty its
"select key personnel and technicians" to Malacca and to manu-
facture competitively, products which were then ma°:ufactured by
Needle Industries, U.K. The foot note to the letter to Shread asked
H
him to keep these matters secret from Coats till the shares had been
sold, and till the deed had been done.
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 761

There is another aspect of Devagnanam's conduct to which A
reference must be made. The statement made by him in para 15 of
his reply affidavit denying that he was a non-resident is not entirely
true because at least between August 26, 1974 and June 9, 1976 he
was a non-resident within the meaning of section 2 (p) (i) (a) of
FERA. By his letter dated August 26, 1974 to the Reserve Bank,
he asked, though out of abundant caution, for permission under B
section 29 (4) of FERA to hold his shares in NIIL. He referred in
that letter to his contract with Newey and Taylor under which he
was to be a full-time Managing Director of that Company for five
years from August 1, 1974 to July 31, 1979 and asked the Reserve
Bank to determine his status. On September 3, 1975 he wrote to
the Reserve Bank contending that he was a 'resident', referring this c
time not to his contract with Newey-Taylor but to the agreement
between NILL and Newey Goodman Ltd., a Company about to be
formed, under which he was to be on deputation with it as an
employee of NIIL.
D
Devagnanam's letter dated August 11, 1973 to Shread of
Newey-Goodman, the gloss which he put on his status as a resident
in his letters to the Reserve Bank dated August 26, 1974 and
September 3, 1975 and the clever manner in which he had his status
determined as a resident, cast a cloud on his conduct and credibility.
And though, as contended by Shri Seervai, we do not propose to E
apply to Devagnanam's affidavit-evidence the rule of 'corroboration
in material particulars' which is generally applied in criminal law to
accomplice evidence, we shall have to submit Devagnanam's conduct
to the closet scrutiny and statements made by him, from time to
time, to the most careful examination. We shall have to look to
something beyond his own assertion in order to accept his claim or
F
contention.

Shri Nariman attacked the conduct of Coats almost as plausi-
bly as Shri Seervai attacked that of Devagnanam, though in terms
of a saying in a local language we may say that 'a brick is softer
than a stone', Coats being the brick. Coats, as will presently appear,
G
are not to be outdone by Devagnanam in the matter of lack of
business ethics. But that is no wonder because when the dominant
motivation is to acquire control of a co.mpany, the sparring groups
of shareholders try to grab the maximum benefit for themselves. If
one decides to stay on in a company, one must capture its control.
If one decides to quit, one must obtain the best price for one's H
762 SUPREME COURT REPORTS (1981] 3 S.C.R.

A holding, under and over the table, partly in rupees and partly in
foreign exchange. Then, the tax Jaws and the foreign exchange regu-
lations look on helplessly, because law cannot operate in a vacuum
and it is notorious that in such cases evidence is not easy to
obtain.
t

Alan Mackrael says in paragraph 20 of his reply affidavit in
B
the Company Petition that it was made clear to Devagnanam that
neither Coats nor the Needle Industries (U.K.) would ever be a
party to any transaction which was illegal under the Indian law. In
a letter dated May 24, 1976 to Devagnanam, A.D. Jackson of
NEWEY has this to say :-
c ·•Jn broad terms the proposition is that Alan Mackrael,
Martin Henry and myself should meet with you in
Malacca during September to discuss arrangements whereby
an Indian gentleman known to Coats would purchase both
your shares and our own share of the -NINTH holding in
the manner which I outlined to you on the telephone. In
D order to provide a base for the calculations, Kingsley is to
be asked to obtain the government approved price but, of
course, the basis of our discussions has been that the actual
payment will be higher than this".

In the same letter Jackson, after warning that Coats/Needle Indus-
E tries (U .K.) are "certainly not going to relinquish control of Ketty
without a major struggle", proceeds to describe the helpless condi-
tion of NEWEY by saying that in the financial position in which
they found themselves, they were "in no state to do battle with this
particular giant". Leaving aside the determination of Coats to
enage in a major struggle with NIIL's Board of Directors, Jackson's
F letter leaves no doubt that Coats were willing to be a party to the
arrangement whereby the shares of Devagnanam and NEWEY would
be sold to an 'Indian gentleman', under which the actual payment
would be higher than the government approved price ascertained by
Kingsley, .the Secretary of Nill. This is doubtful ethics which
justifies Shri Nariman's argument that he who comes into equity
G must come with clean hands; if he does not, he cannot ask for
relief on the ground that the other man's hands are unclean. The
"Notes on further Indianization" made by Devagnanam on April
29, 1975, at a time when the relations between the parties were not
under a strain, show that N.T. Sanders who ·was nominated by the
H Holding Company as a Director of NIIL was "aware of an inquiry
from a Mr. Khaitan". This shows that Devagnanam was not trying
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 763

to dispose of his shares secretly to Khaitan and Coats were aware of A
that move.

In para 20 of his reply affidavit, Alan Mackrael says that none
+ of the proposals put forward by the Holding Company for achieving
Indianization to comply with the requirements of FERA would have
given the control of NHL to the Holding Company. This is falsified B
by Raeburn's letter dated October 25, 1976 to Devagnanam, in which
he says that the idea of an outside independent party holding J5%
of the share capitat of NIIL was raised, but this did not appear to
I be acceptable to Coats since "they want to achieve not only that the
present Indian shareholders hold a minority but that they (Coats)
hold and influence a substantial block, thereby hoping to influence
NEWEY to their views". Thus, there is a wide difference between
what Coats practised earlier and pleaded later. Towards the end of
paragraph 21, Mackrael asserts that the shareholders of the Holding
Company, namely, Coats and NEWEY, were unanimous in the
filing of the Company Petition and the prosecution of the proceedings
following upon it, which is said to be clear from the fact that two D
powers of attorney were attested by the Directors of the Holding
Company, both of whom were Directors of NEWEY also. The fact
that Coats and NEWEY were not of one mind is writ large on the
face of these proceedings and, in fact, the charge against NEWEY
is that because of their Far-Eastern interests in which Devananam
was a great.asset to them, they were supporting Devagnanam. We E
may in this connection draw attention to a Jetter dated June 8, 1977
by Raeburn to Mackrael, saying that the insistence of Coats
('Glasgow') to hold on to the 60% shareholding in NIIL or at least
to ensure that 60% did not get into the hands of the Indian share-
holders will involve a long a11d costly legal battle. Raeburn proceeds
to say : F
"We, as Neweys, have neither the will nor the means
to participate in that battle, nor do we think it right to do
so bearing in mind the legal position regarding Indianisa-
tion, the provision in the Articles and the fact that substan-
tially the modern business of N.I.I.L. has been built up by G
the efforts of the present Indian shareholders".

In paragraph 5 of the aforesaid letter, Raeburn clarifies the attitude
of NEWEY by saying that if Coats were unable to agree to the
arrangement suggested by NEWEY, then, NEWEY will be compelled H
to notify to those concerned in India that they can no longer be
parties to the power of attorney granted hy the Holding Company
764 SUPREME COURT REPORTS [1981] 3 S.C.R.

A to Mackrael or to any other proceedings in the Indian Courts. In
spite of this letter of Raeburn (dated June 8, J 977), Mackrael had
the temerity in his reply affidavit dated July 8, 1977, to say that
Coats and NEWEY were unanimous in the prosecution of the +
proceedings consequent upon the filing of the Company Petition.
There was no agreement between Coats and NEWEY either in
B regard to lndianisation of NIIL or in regard to the legal proceed-
ings instituted to challenge the issue of rights shares.

There are many other contradictions on material points bet-
ween the actual state of affairs and what Coats represented them I
to be, but we consider it unnecessary to cover the whole of that
c field. We will refer to one of these only, in order to show how
difficult it is to choose between Coats and Devagnanam. In para-
graph 19 of the Company Petition, which is sworn by Mackrael, it
is stated that Devagnanam was in U.K. sometime towards the end
of March 1977 and that he held several discussions with the repre-
sentatives of the Holding Company. In paragraph 40 of bis reply
D affidavit, Mackrael says that as to the contents of paragraph 19 of
the Company Petition, be himself was not present at such meeting,
since it was a meeting between Devagnanam and the officials of
NEWEY for the purpose of discussing matters concerning NEWEY's
Far-Eastern interests. The verificat10n clause of Mackrael's affidavit
in support of the Company Petition shows that the contents of
E paragraph 19 are based on information which be believed to be
true. A clearer contradiction between the parent petition and the
reply affidavit is difficult to imagine. It would appear that it was
not until quite late that Coats realised that they had to plead all
ignorance of the discussions which were held in U.K. towards the
end of March 1977 between Devagnanam and the representatives of
F the Holding Company.

We will now shift our attention to another scene in order to
show how unethical the Coats are. Coats' subsidiary called the
Central Agency Ltd., who were sole-selling agents of NIIL's products
in various markets in the world, ceased to be so after NHL put an
G end to the agreement with them. The Central Agency never applied
during the time that they were sole-selling agents of NIIL's products
for registration of the Indian Company's Trade Marks as a protec-
tive measure. The learned Trial Judge, Ramaprasada Rao, Acting
C.J., delivered the judgment in the Company's Petition on May 17,
H 1978. Immediately thereafter, Application No. 34991 of 1978 was
filed by the Japanese Trade Marks Agents of Needle Industries,
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 765

U.K., for registration of the Trade Marks 'Pony' and 'Rathna', A
which were the registered Indian Trade Marks of NHL. That
application was made under the authority of a Power of Attorney
signed by Alan Marckrael. In June 1978, Application No. 102987
was filed in Thailand on behalf of the Needle Industries U.K. as
-0wners of the Trade Mark 'Pony' which is clear from the Trade
Mark Attorney's letter dated January 22, 1979. In October 1978, B
Coats Patons, Hong Kong, got the Indian Company's Trade Mark
'Pony' registered. In November 1978, the Trade Mark Agents and
Solicitors of NIIL in Hong Kong had to give a notice to Coats
. /
Patons, Hong Kong, that the latter had registered the 'Pony' Trade
-\' Mark in Hong Kong with the full knowledge that NIIL was the
c
legal owner of that Trade Mark and threatening legal action. As a
result of that notice, the Indian Company's Trade Mark 'Pony'
which was registered by Coats Patons in Hong Kong as their own
Trade Mark, was assigned to the Indian Company on December 21,
1978 for a nominal sum of 10 dollars. Items 7 and 8 of the minutes
dated March 28, 1979 of the meeting of the interim Board of
Directors of NIIL refer to the registration in Hong Kong by Coats D
Patons of the Indian Trade Mark of NIIL and subsequent assign-
ment thereof to NHL when legal action was threatened. Harry
Bridges, who was appointed as a temporary Managing Director by
the High Court, has stated in his counter affidavit dated March 27,
1980 that the application for registration of the 'Pony' Trade Mark
was made in Hong Kong and other places in order to protect that E
Trade Mark from its improper use by other traders. This is a lame
explanation of an act of near piracy. Were this explanation true,
the application for registration of the Trade Mark would have
mentioned that it was being filed on behalf of NIIL, and that 'Pony·
was in fact the Trade Mark of NIIL. It is quite amazing that any
F
-0ne should claim that the registration of the Trade Mark was being
sought as a protective measure when a battle royal was raging bet-
ween the Holding Company and NHL and after the Trial Court
had delivered its judgment. We may mention that by a letter dated
June 15, 1977 Mackrael had informed Devagnanam that he was
removed from the Board of Directors of the Holding Company and
G
M.D.P. Whiteford was appointed in the vacancy. The fact that
Needle Industries, U.K., had surreptitiously made an application
for the registration of NIIL s Trade Mark 'Pony' came to light
fortuitously in January 1979 when NIIL applied for the registration
-0f the 'Pony' Trade Mark in Thailand and Japan. NIIL's Trade H
Mark Agents there found, on inspection of the registers, that certain
766 SUPREME COURT REPORTS (1981) 3 S.C.R.

A applications made by Needle Industries, U.K., claiming the same
mark as their own pending consi.deration.

The decision, in appeal, of the High Court appointing Harry
Bridges as a Managing Director for 4 months was pronounced on
October 26, 1978. As a Managing Director appointed by the Court,
Bridges called a Board meeting of their members of the Board
B appointed by the Appellate Court, for November 2, 1978. Bridges
took away many files, documents and statements from the NIIL's
factory at Ketty on October 28, 1978, his explanation being that he
wanted to carry these documents to Madras where the Board meeting
was to be held. A little before Bridges left Ketty for Madras, be
was informed that this Court had passed an interim order on
c November 1, 1978. iConsequently, the meeting of the 2nd November
'did not take place. Bridges says that when it became clear that he
was no longer required to act as a Managing Director of NIIL, he
took the earliest opportunity of returning the documents which he
had taken from the office of the factory at Ketty.

D It is understandable that Bridges wanted to take with him
certain documents to help him perform his functions as a Managing
Director in the meeting of November 2, 1978. But it is surprising
that, in addition to the documents which Bridges returned on
November 8, he had taken with him several other documents which
he returned when pressed to do so. He took away with him (!)
E Design drawing (2) Statistical Returns (3) the Master Budget
summary, 1978 (4) Cash forecast for 1978-79 (5) Detailed Projet
Report with cash flow forecast (6) Details of Project Investment
(7) Note on activity upto October 1978 and one or two other docu-
ments. These were eventually returned by the Holding Company's
Advocate, Shri Raghavan. When NIIL wrote on November 21, 1978
F to Shri Raghavan asking him to call upon Bridges to confirm that
he had not retained copies of any of the documents which he had
removed from Ketty, Bridges replied by his letter dated November
29, 1978 that he had taken copies of such documents which he
considered relevant and that he proposed to retain such copies since
G "as director of the Company, I am entitled to peruse and take
copies of whatever records I choose". This is a wee bit high and
mighty. The Design drawing is not the drawing of a bungalow
(with a swimming pool) which was being built for Devagnanam but
it is a 'Ring spring fastener tool design'. The other documents which
H Bridges had taken away and of which he got copies made in asser-
tion of his Directorial right, contain important matters like details
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 767

of production, sales and exports of NIIL's products, orders out- A
standing and sales, the proposed additional turnover and the working
capital requirements, etc. The fact of Harry Bridges's taking away
these documents and making copies thereof for his own use leaves
not the slightest doubt that the motivation of Coats at all times was
to advance their own world interests at the expense of NHL. In the
background of such conduct, it becomes difficult to appreciate the B
Holding Company's contention, so strongly pressed upon us, that
Coats, NEWEY and Devagnanam being in the position of partners,
the greatest good faith and probity were expected to be displayed
by them. The contention, as a bald proposition of law is sound.
The snag is : who should harp upon it? Not Devagnanam, we
agree. But, not Coats either, we think. c
We have said, while discussing the conduct of Devagnanam,
that it would be difficult to accept his word unless there is support
forthcoming to it from other circumstances on the record. We feel
the same about Coats. It would be equally unsafe to accept their
word unless it finds support from the other facts and circumstances D
on the record of the case. It is true that in saying this, we have
partly taken into account facts which came into existence after the
Company Petition was filed. But those facts do not reflect a new
trend or a new thinking on the part of Coats, generated by success
in the litigation. Finding that they had succeeded in the High
Court, Coats took courage to pursue relentlessly their old attitude E
with the added vigour which success brings.

On the question of oppression, there is a large mass of
correspondence and other documentary evidence on the record
before us. We shall have to concentrate on the essentials by separa- f
ting the chaff from the grain. In the earlier part of this judgment
we have already referred to the course of events generally, which
culminated in the meetings of NIIL's Board of Directors, held on
April 6 and May 2, 1977. We propose now to refer to these events
selectively.
G
FERA having come into force on January I, 1974, D.P.
Kingsley, the Secretary-Director of NHL, applied on September 3,
1974 to the Reserve Bank for the necessary permission under section
29 (2) of that Act. The Reserve Bank intimated to NIIL by its letter
dated November 5, 1975 that permission would be accorded to NIIL H
under section 29 (2) (a) read with section 29 (2) (c) of FERA to
carry on its activities in India subject to the conditions enumerated
768 SUPREME COURT REPORTS [1981] 3 s.c.R.

A in paragraph 2 of the letter. One of the conditions mentioned in
the aforesaid paragraph was that the non-resident interest in the
equity capital must be reduced to a level not exceeding 40%, within
a period of one year from the date of receipt of the letter. The
Reserve Bank asked NHL to submit a scheme within a period of
three months, showing how it proposed to achieve the required
B reduction in the non-resident interest : "(a) whether by disinvest-
ment by non-resident shareholders, or (b) whether by issue of addi-
tional equity capital to Indian residents to the extent necessary to
finance any scheme of expansion/diversification, or (c) by both".
Kingsley wrote a Jetter to Mackrael on November 19, 1975, enclosing
therewith a copy of the letter of the Reserve Bank dated November
c 5. On February 4, 1976 Kingsley wrote to the Reserve Bank that
NHL was prepared to agree to reduce the non-resident interest in
the equity capital to a level not exceeding 40% and that the Company
was proposing to bring this about by disinvestment though, depending
upon future developments, the Company reserved its right to reduce
the non-resident interest by issue of additional equity capi~al to
D Indian shareholders. Kingsley requested the Bank to extend th(~
stipulated time one year in case NHL was not able to comply with
the Bank's directive by reason of circumstances beyond its control.
A copy of this Jetter dated February 4, 1976 was sent by Kingsley to
Whitehouse, the Secretary of the Holding Company. It is significant
that there was no response as such to this communication, from the
E Holding Company. On May 11, 1976 the Reserve Bank oflndia
sent a Jetter to NHL granting permission to it under FERA to carry
on its business on certain .conditions, one of them being that the
non-resident interest in the equity capital had to be reduced to a
level not exceeding 40% within a period of one year from the date
of receipt of the letter. The Reserve Bank stated in the aforesaid
F Jetter that until such time as the non-resident interest was not
reduced to 40%, the manufacturing activity of the Company shall
not exceed such capacity as was validly approved or recognised by
the appropriate authority on December 31, 1973 and that the Com-
pany shall not expand its manufacturing activities beyond the level
so approved or recognised. It is clear from this letter that all develop-
G mental activities of NHL stood frozen as of the date December 31,
1973, until the non-resident interest was reduced to 40%. The
Reserve Bank stated further in the letter that NIIL should submit
quarterly reports to it indicating the progress made in implementing
the reduction of the non-resident interest and that the transfer of
H shares from non-residents to Indian residents would be required to
be confirmed by the Reserve Bank under section 19 (5) of FERA.
N.I.I.L. v. N.J.N.H.L. (Chandrachud, C.J.) 769

The letter of the Reserve Bank was received by NIIL on May 17, A
1976, which meant that tht reduction of the non-resident interest
had to be achieved by May 17, 1977.

It shall have been seen that by the time the permission was
granted by the Reserve Bank to NIIL in May 1976, FERA had been
in force for a period of about 2l years. A period of one year and B
eight months had gone by since the filing by NHL of the application
for dilution of the non-resident interest. Over and above that, the
Reserve Bank had granted a long period of one year for bringing
.._ ,./. about the dilution of the non-resident interest. It is true that public
-~
authorities are not generally averse, in the proper exercise of their
discretion,. to extending the time limit fixed by them, as and when c
necessary. But an elementary sense of business prudence would
dictate that the time schedule fixed by·the Reserve Bank had to be
complied with. The firm tone of the Reserve Bank's letter conveyed
that it would not be easy to obtain an extension of time for com-
plying with its directive, while the stringent conditions imposed by
it1 particularly in regard to future developmental activities, dictated D
an early compliance with the directive.

Kingsley sent a letter to the Reserve Bank on May 18, 1976,
confirming the acceptance of the various conditions under which
permission was granted to NIIL to carry on its business. Kingsley
pointed out a difficulty in implenting one of the conditions regarding E
the sale of petroleum products, but the Reserve Bank by its letter
dated May 29, 1976 informed him that after a careful consideration
of the request, the Bank regretted its inability to enhance the ceiling
on the turnover from the Company's trading activity, as stipulated
in the letter dated May 11, 1976.
F
In the meeting of the Board held on October i, 1976, Deva-
gnanam's appointment as Managing Director was renewed for a
further period of five years. Raeburn, Chairman of NEWEY who
was looking after the affairs of the Holding Company, wrote to
Devagnanam on October 4, 1976, complaining that it was necessary
that the Holding Company should be kept informed in ample time G
of the Board's meetings on important organisational matters.

Raeburn and Mackrael came to India to discuss the question
of dilution of the non-resident holding in NHL. A meeting was
held at Ketty on October 20 and 21, 1976 in which the U.K. share- H
holders were represented by Mackrael and Raeburn and the Indian
shareholders by Devagnanam and Kingsley. Silverston took part
770 SUPREME COURT REPORTS [1981] 3 S.C.R.

A in the meeting as an adviser to the Indian shareholders. Martin
Henry, the Managing Director of Madura Coats which is an Indian
company in which the Needle Industries (U.K.) and Cotas have
substantial interest, attended the meeting and took part in the
discussions. A note of the discussions which took place at Ketty
on October 20 and 21 was prepared by Raeburn and forwarded
B along with a Jetter dated November JO, 1976 to Devagnanam, with
copies to Mackrael, Newey, Jackson and Whitehouse. Paragraph 2
of this note, which is important, says:

"It was agreed that Indianization should be brought
about by May, 1977, as requested by Government, so as to
c achieve a 40% U.K. and 60% Indian shareholding".

The main features of the discussions which took place in the Ketty
meeting are these:

(I) Mackrael and Martin Henry suggested acceptibility of
Madura Cotas as holding part of the 60% of the equity
D
to be held by Indian shareholders. The latter "saw
no reason to give up the right which the Indianization
legislation, combined with the Company's Articles,
conferred upon them and, therefore they insisted on
taking up the whole of their entitlement to 60% of the
equity". Silverston who was an Englishman by
E
nationality and a Solicitor by profession in India and
was acting as an Adviser to the Indian shareholders in
the Ketty meeting plainly and rightly pointed out that
Government's approval of a holding by Madura Coats
F of 15% of NHL shares would be unlikely, because by
that method Coats would indirectly and effectively
with NEWEY hold over 40%, approximately 46%,
share in NHL. It is apparent that this would have
been a clear violation of FERA.
G
(2) To allay the concern of U.K. shareholders when they
became in minority by the Indian shareholders coming
to hold 60%, some safeguards were suggested which,
amongst others, were, (i) the Articles of the Company
could be altered only by a special resolution which
requires a 75% majority of the members voting in
H
person or by proxy. Thus, either group of the share·
holders could prevent the sale of shares to any one not
N.1.1.L. v. N.l.N.H.L. (Chandrachud, C.J.) 771

approved, (ii) the Board could be reconstructed as A
mentioned in para 4.3 of the note to give U.K. share-
holders sufficient safeguards and hand in the manage-
* ment of the Indian Company.

(3) The preferred method of transferring 20% of the equity
to Indian shareholders was thought to be by sale by B
U.K. members of the appropriate number of shares at
the price to be determined by the Government and the
advice to be taken from Price Waterhouse in this
regard. As an alternative it was suggested that a rights
issue, with the Tndi°an shareholders taking up the U.K.
.· Members' rights would also be considered, provided it c
was demonstrated by Ketty that there was a viable
development plan requiring funds that the expected
NIIL cash flow could not meet. The value of the U. K.
equity interest thus transferred was not to be Jess
favourable than by a direct sale of shares.
D
(4) Approval was given in principle to the renewal of con-
tract of Devagnanam as Managing Director of NIIL.
Devagnanam agreed to devote adequate time to the
affairs of Ketty and was authorised to ~ontinue to
supervise the NEWEY affairs in Hong Kong and
Malacca. E
At the resumed discussion on October 21, 1976, both sides stuck to
their stand. Devagnanam was insistent that he will "not accept on
behalf of the Indian shareholders anything less than the full entitle-
ment of 60% of the shares", while Mackrael, equally insistent,
"could not accept on behalf of NI/Coats that the full 60% be held F
by the present Indian shareholders, even with the safeguards and
assurances discussed previously".

The Ketty meeting thus ended in a stalemate, both sides
insisting on what, what they considered to be their right and entitle-
ment. Raeburn attempted to play the role of a mediator but failed. G
In this situation, the parties decided to give further consideration to
the matter and to adhere to the following time-table :

"Mid-December
H
TAD (Devagnanam) to submit to the U.K. shareholders
772 SUPREME COURT REPORTS [1981) 3 s.c.R.
A both the decisions reached by the Indian shareholders as
regards the 60% and the case, if any, for a Rights Issue.

M id-January

U.K. shareholders to decide on their reaction to the Indian
B shareholders' decision".

Silverston conveyed to Kingsley his regret that the Ketty
meeting could product no outcome because of the attitude of Coats
who wanted to put pressure on the Directors of NHL by g1vmg
15% of the shareholding to Madura Coats and thereby avoiding
c the provisions of FERA. This reaction of Sil verston finds support
in. the reacthn of Raeburn himself, which he descrij:>ed in his letter
dated October 23, 1976 to Devagnanam. Raeburn says in that
..
letter that he had learnt from Martin Henry that Coats were keen
to introduce Prym technology in India in their Madura Coats
factory. It may be mentioned that the Prym technology when
D introduced in Madura Coats would have created a direct competi-·
tion between it and NIIL. It would also appear from Devagnanam's
letter of October 21, 1976 to Jackson that Coats were intending
to start an Engineering Division at Bangalore for the manufacture
of Dynecast and Prym products with an investment of the tune of
Rs. 3,00,00,000 (Rupees three crores). Compared with that, the
interest of Coats in NIIL was just about Rs. 10 lakhs, even if the
shares of NHL were to be valued at Rs. 190/- per share.

Devagnanam wrote a Jetter dated December 11, 1976 to
Raeburn, informing him that they had just closed the Board's
meeting in which the principal subject of discussion was "Indianiza..
tion". Devagnanam expressed resentment of himself and his
F
colleagues that after they had faithfully served the Holding Com-
pany for almost the whole of their working Jives, the Holding
Company should be unwilling to accept them as partners,
especially when they were legally entitled to be so considered.
Devagnanam made it clear in this Jetter that any attempt by Coats
G to retain an indirect control in the management of NIIL will not
be acceptable to the Indian shareholders.

Then comes the important letter of December 14, 1976, which
was written by Devagnanam to Raeburn. Devagnanam informed
H Raeburn by that letter that he had further discussions with his
colleagues and was able to persuade them to agree to ·a kind of
Package deal. The terms of the deal so suggested were : "(!)
N.1.1.l.. v. N.l.N.H.L. (Chandrachud, C.J.) · 773

Indianization should take place with the existing Indian share- A
holders acquiring 60% of the stock; (2) Mackrael and Raeburn ·
should be taken on NIIL's Board as Directors, but in no event
Martin Henry who was connected with Madura Coats which had a
powerful plan of development of Prym technology; (3) the Indian
shareholders were prepared to take B.T. Lee, a senior executive of
Needle Industries/Coats, Studley, as a permanent wholetime B
Director of NIIL to be put specificalJy in charge of exports". Some
other suggestions were made by Devagnanam to show the bona
fides of the Indian shereholders and to alJeviate the apprehensions
in the minds of the U. K. shareholders. Devagnanam asked
Raeburn to convey his reactions in the matter. This letter has been
gravely commented upon by the Holding Company on the ground c
that it did not contemplate the issue of rig'1 ts shares. We are
unable to see the validity of this criticism. There is not the sligh-
test doubt that the Indian shareholders were insisting all along that
they should become the owners of 60% of the equity capital of
NHL. A simple method of bringing this about was the transfer by
the Holding Company of 20% of its shareholding to the existing D
Indian shareholders. It was only when this plain method of bringing
about reduction in the equity holding failed and the deadline fixed
by the Reserve Bank was drawing nearer, that the Board of NHL
decided upon the issue of rights shares, which was the only other
alternative that could be conceived of for reducing the non-resident
interest. The issuance of rights shares, after all, was not like a E
bolt from the blue. In any event, it was mentioned in the Ketty
meeting.

On Dec;ember 20, 1976 Silverston wrote a letter to Raeburn
saying that he would be proceeding to U.K. early in January in
connection with his personal matters and that he would then visit
F
Raeburn also. Silverston stated candidly in t be letter that the
situation which was developing between the U.K. and the Indian
shareholders, if allowed to continue, could do much damage to the
British interests and "as one who is still concerned with the
interests of British industry, I feel I cannot sit by and allow
matters to deteriorate to their detriment, without making some
G
attempt towards bringing the issues between the parties to a fair con·
clusion." Raeburn wrote to Kingsley on January 14,1977 stating that
he had a discussion with- Silverston a couple of days back, during
which Silverston had stated clearly the legal position and given
H
his advice upon it. In the last paragraph of this letter, Rae burn
said:
774 SUPREME COURT REPORTS [1981) 3 S.C.R.

A "We have now put our views quite clearly to
Mr. Makrael and we are awaiting the reaction of
Needle Industries and Coats. Therefore, I am hoping
but I cannot be sure of this, to be able to let you
know fairly soon what the formal decision of the
U.K. shareholders is.
B
It needs to be emphasised, especially since its importance was
not fully appreciated by the Appellate Bench of the High Court,
that the Indian point of view was communicated with the greatest
clarity to Raeburn in Devagnanam's letter dated December 14,
1976, which was within the time schedule which was agreed to be
c adhered to in the Ketty meeting. The views of the U. K. share-
holders were most certainly not communicated to the Indian share-
holders by the middle of January 1977 as was clearly agreed upon
in the Ketty meeting. In fact, they were never communicated.

On January 20, 1977, the Reserve Bank sent a reminder to
D NHL. After referring to the letter of May 11, 1976, the Reserve
Bank asked NHL to submit at an t1arly date the progress report
regarding dilution of the non-resident interest. In reply, a
letter dated February 21, 1977 was sent by NIIL to the Bank,
stating:
E "We confirm that we are following up the matter
regarding dilution of non-resident interest and we
confirm our commitment to achieve the desired
Indianization by the stipulated date, i.e. 17th May,
1977."
F
It is very important to note that a copy of this letter was for··
warded both to Whitehouse and Sanders. They must at least be'
assumed to know that not only was Indianization to be achieved by
May J 7, 1977, but that NHL had committed itself to do so by that
date.
G It is contended by Shri Seervai that the negotiations with
Coats had in fact not come to an end and that Coats were never told
that the compromise talks will be regarded as having failed. It is
urged that Coats were all along labouring under the impression, and
rightly, that the compromise proposals which were discussed with
H Raeburn in the meeting of March 29-31, 1977 in U.K. would be
placed by Devagnanam before the Indian shareholders, and the
N.I.I.L. v. N.I.N.H.L. (Chandrachud C.J.) 775

U.K. shareholders apprised whether or not the proposals were A
acceptable.
•

Shri Seervai relies strongly on a letter dated March 9, 1977
written by Raeburn to Devagnanam. After saying that on the
Friday preceding the 9th March, he had discussions with Mackrael
and three high-ranking personnel of Coats, Raeburn says in that B
letter that Coats had refused to agree that the Indian shareholders
should acquire a 60% shareholding in NHL that this had created
a new situation and that he was appending to the letter an outline
of what he believed, but could not be sure, would be agreeable
to Coats/Needle Industries. Raeburn stated further in that
Jetter : c
"[ know that all this will be difficult for you and your
fellow Indian shareholders, but I urge you to support
this view and get their acceptance, and to come here
to be able to negotiate. If these or similar principles
can be agreed during your visit, I have no doubt that D
the detailed method can be quickly arranged."

Raeburn stated that the proposal annexed to the letter had not been
agreed with Coats but he, on his own part, believed that Coats
could be persuaded to agree to it. Stated briefly, the proposal
annexed by Raeburn to his letter aforesaid involved (i) the existing 1£
Indian shareholders holding 49% of the sh!lres, (ii) new Indian
independent institutional shareholders holding 11 % of the shares,
and (iii) the existing U.K. shareholders, either directly or indirectly,
holding 40% of the shares. The proposed Board of Directors was
to consist of representatives of the shareholders appointed by them
~~· F
"Existing Indian shareholders 3, New independent
Indian shareholders 1, existing U.K. shareholders 2,
and an independentlndian Chairman acceptable to all
parties."
G
It is contended by Shri Seervai that these proposals are
crucial for more than one reason since, in the first place, the pro-
posal to increase the holding of the existing Indian shareholders to
49% and the offer of 11 % to new Indian independent institutional
shareholders was inconsistent with the charge that Coats wanted to H
retain control over NHL, directly or indirectly. The second reason
why it is said that the proposal is crucial is that Raeburn's letter of
776 SUPREME COURT REPORTS [1981] 3 S.C.R.

A March 9 must have been received by Devagnanam before March 14
since it was replied to on the 14th. Therefore, contends Shri
Seervai, the negotiations between the parties were still not at an
end. Counsel says that it was open to Devagnanam to refuse to
negotiate on the terms suggested and insist that the Indian share-
holders must have 60 % of the shares. Instead of conveying his
B reactions to the proposal Devagnanam, it is contended, went to the
United Kingdom to discuss the question. The minutes of discus·
sions which took place in U.K., Mackrael and Sanders not taking
any part therein, show that NEWEY continued to plead that thi:
Indian snareholders and Coats should consider the compromisi:
formula and that Devagnanam undertook to put to the Indian
c shareholders further proposals for compromise and to consider what
other proposals or safeguards they might suggest. Reliance is also
placed by counsel on a letter which Devagnanam wrote to Raebnm
on April 5, in support of the submission that the negotiations were
still not at an end. The last but one paragraph of that letter_
reads thus :
()
"As undertaken, I shall place the compromise formula,
very kindly suggested by you, before my colleagues
later today. We shall discuss it fully at the Board
Meeting tomorrow and I shall communicate . the
outcome to you shortly thereafter."
E
We are unable to agree that the proposal annexed to Raeburn's
letter of March 9, 1977 was either a proposal by or on behalf of
Coats or one made with their knowledge and approval. Were it so,
it is difficult to understand how Raeburn could write to Mackrael on
June 8, 1977 that Coats were still insistent on the entire 20% of the
F excess equity holding not going to the existing Indian shareholders.
There is also no explanation as to why, if the proposal annexed to
Raeburn's letter of March 9 was a proposal by or on behalf of
Coats, Raeburn said at the U.K. meeting of March 29-31, 1977
that it was better to 'let Coats declare their hand'. It is indeed
impossible to understand why Coats, on their own part, did not at
G time communicate any compromise proposal of theirs to the Indian
shareholders directly. They now seem to take shelter behind the
proposal made by Raeburn in his letter of March 9 adopting it as
their own. Even in the letter which Crawford Bayley & Co.,
wrote on June 21, 1977 on behalf of Sanders to the Reserve Bank
H of India, no reference was at all made to any proposal by or on
behalf of Coats to the Indian shareholders. The vague statement
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 777

made in that letter is that 'certain proposals' were being considered A
and would be submitted 'shortly' before the authorities. No such
proposals were ever made by the Solicitor or their client to
anyone.

These letters and events leave no doubt in our mind that
the negotiations between the parties were at an end that B
there were no concrete proposals by or on behalf of Coats which
remained outstanding to be discussed by the Indian shareholders.
To repeat, Devagnanam declared his hand in his letter of December
14, 1976 by reiterating, beyond the manner of doubt, that nothing
less than 60% share in the equity capital of NIIL would be accepta-
ble to the Indian shareholders. Coats· never replied to that letter c
nor indeed did they convey their reaction to it in any other form
or manner at any time. In fact, it would be more true to say that
Coats themselves treated the matter as at an end since, they were
wholly opposed to the stand of the Indian shareholders that they
must have 60% share in the equity capital of NHL. What
happened in the meeting of April 6, 1977 has to be approached in D
the light of the finding that the negotiations between the parties had
fallen through, that Coats had refused to declare their hand and
that all that could be inferred from their attitude with a fair amount
of certainty was that they were unwilling to disinvest.

On March 18, 1977 NIIL's Secretary gave a notice of the E
Board meeting for April 6, 1977. The notice was admitttedly
received by Sanders in U.K., well in time but did not attend the
meeting. The explanation for his failure to attend the meeting is
said to be that the item on the agenda of the meeting, 'Policy-
Indianisation' was vague and did not convey that any" matter of
importance was going to be discussed in the meeting, like for F
example, the issue of rights shares. We find it quite difficult
to accept this explanation. Just as a notice to quit in landlord-
tenant matters cannot be allowed to split on a straw, notices of
Board meetings of companies have to be construed resonably, by
considering what they mean to those to whom they are given. To
a stranger, 'Policy-·Indianisation' may not convey much but to G
Sanders and the U.K. shareholders it would speak volumes. By
the time that Sanders received the notice, the warring camps were
clearly drawn on two sides of the battle-line, the Indian group
insisting that they will have nothing less than a 60% share in the
equity capital of NIIL and the U.K. shareholders insisting with
H
equal determination that they will not allow the existing Indian
778 SUPREME COURT REPORTS (1981) 3 S.C.ll.,

A shareholders to have anything more than 49%. In pursuance of a
resolution passed by the Board, a letter had already been written
to the Reserve Bank confirming the commitment of NHL to achieve
the required lndianisation by May J 7, 1977. A copy of NII L's
Jetter to the Reserve Bank was sent to Sanders and Whitehouse.
Jn view of the fact that to the common knowledge of the two sides
B there were only two methods by which the desired Indianisation
could be achieved, namely, either disinvestment by the Holding
Company in favour of the existing Indian shareholders or a rights
issue, tl:e particular item on the agenda should have left no doubt
in the mind of the U. K. shareholders as to what the Board was
likely to discuss and decide in the meeting of the 6th. Disinvest-
c ment stood ruled out of consideration, a fact which was within the
special knowledge of the Holding Company, since whether to disin-
vest or not was a matter of their volition.

After the despatch of the notice dated March 18, 1977 two impor-
tant events happend. Firstly, Devagnanam went to Birmingham, where
D discus ions were held from March 29-31, 1977 in which lndianisa-
tion of NIIL was discussed, as shown by the minutes of that dis-
cussion. NEWEY were willing to accept lndianisation, by the
existing Indian shareholders acquiring a 60~~ interest in the share
capital of NIIL while "COATS were adamantly opposed" to that view.
lt is surprising that during the time that Devagnanam was in
E Birmingham, Sanders did not meet him to seek an explanation of
what the particular item on the agenda of the meeting of April 6 ·
meant Sanders had received the notice of March 18 before the
Birmingham discussions took place, and significantly he has ma.de
no affidavit at all on the question as to why he did not meet
Devagnanam in Birmingham, or why he did not attend the meeting
F of April 6 or what the particular item on the agenda meant
to him.

The second important event which happened after the notice
of March 18 was issued was that on April 4, 1977 NHL received a
letter dated March 30, 1977 fro.m the Reserve Bank. The letter
G
which was in the nature of a stern reminder left no option to NIIL's
Board except to honour the commitment which it had made to the
Reserve Bank. By the letter the Reserve Bank wamed NHL :
"Please note that if you fail to comply with our directive regarding
dilution of foreign equity within the stipulated period, we shall
H
be constrained to view the matter seriously."
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 779

We do not see any substance in the contention of the Holding A
Company that despite the commitment which NIIL had made to
the Reserve Bnnk, the long time which had elapsed in the meaq-
while and the virtual freezing of its developmental activities as of
December 31, 1973, NHL should have asked for an extension of
time from the Reserve Bank. In the first place, it could not be
assumed or predicated that the Bank would grant extension, and B
secondly, it was not in the interest of NHL to ask for such an
extension.

The Board meeting was held as scheduled on April 6, 1977.
The minutes of the meeting show that two directors, Sanders and
M.S.P. Rajes, asked for leave of absence which was granted to them. C
Sanders, as representing the U.K. shareholdes on NIIL's Board, did
. not make a request for the adjournment of the meeting on the
ground that negotiations for a compromise had not yet come to an
end or that the Indian shareholders had not yet conveyed their
response to the "Coats' compromise formula". Nor did he com-
municate to the Board his views on 'Policy-Indianisation', whatever D
it may have meant to him. Seven Directors were present in the
me.eting, with Devagnanam in the chair at the commencement of
the meeting. C. Doraiswamy, a Solicitor by profession and
admittedly an independent Director, was amongst the seven. In
order to complete the quorum of two "independent" directors, other
directors being interested in the issue of rights shares, Silverston was E
appointed to the Board as an Additional Director under article 97 of
NIIL' s Articles of Association. Silverston then chaired the meeting,
which resolved that the issued capital of the Company be increased
to Rs. 48,00,000/- by the issue of 16,000 equity shares of Rs. 100/-
each to be offered as rights shares to the existing shareholders in
proportion to the shares held by them. The offer was decided to be F
made by a notice specifying the number of shares which each share-
holders was entitled to, and in case the offer was not accepted
within 16 days from the date of the offer, it was to be deemed to
have been declined by the shareholder concerned,

The aforesaid resolution of the Board raises three important G
questions, inter alia, which have been passed upon us by Shri Seervai
on behalf of the Holding Company : (1) Whether the Directors of
NIIL, in issuing the rights shares, abused the fiduciary power which '
they possessed as directors to issue shares; (2) Whether Silverston
was a 'disinterested Director'; and (3) Whether Siverston's appoint- H
ment was otherwise invalid, sine~ there was no item on the agenda
780 SUPREME COURT REPORTS (1981] 3 S.C.R.

A of the meeting for tb.e appointment of an Additional Director. If
Silverston 's appointment as an Additional Director is bad either
because he was not a disinterested director or because there was no
item on the agenda under which his appointment could be mad(:,
the resolution for the issue of rights shares which was passed in the
Board's meeting of April 6 must fall because then, the necessary
B quorum of two disinterested directors would be lacking.

On the first of these three questions, it is contended by
Shri Seervai that notwithstanding that the issues of shares is intra
vires the Directors, the Directors' power is a fiduciary power, and
although an exercise of such power may be formally valid, it may be
c attacked on the gound that it was not exercised for the purpose for
which it was granted. It is urged that the issue of shares by Directors
which is directed to affect the right of the majority of the shar1e-
holders or to defeat that majority and convert it into a minority is
unconstitutional, void and in breach of the fiducia7y duty of
Directors, though in certain situations' it may be ratified by the
D Company in the General Meeting. Any reference by the Company
to a general meeting in the prrsent case, it is said, would have been
futile since, without the impugned issue of rights shares, the maj_o-
rity was against the issue. It was finally argued that good faith and
honest belief that in fact the course proposed by the Directors was
for the benefit of the shareholders or was bona fide believed to be
E for their benefit is irrelevent because, it is for the majority of
the shareholders to decide as to what is for their benefit, so long as
the majority does not act oppressively or illegally. Counsel relies
in support of these and allied contentions on the decision of the
Privy Council in Howard Smith Ltd. and of the English Courts in
Fraser, Punt, Piercy and Hogg. (supra)
F
In Punt v. Symons, (supra) which applied the principle of
Fraser v. Whalley, (supra) it was held that :

Where shares had beeen issued by the Directors. not
for the general benefit of the company, but for the
G purpose of controllipg the holders of the greater num-
ber of shares by obtaining a majority of voting power,
they ought to be restrained from h0lding the meeting
at which the votes of the new shareholders were to
hi.ve been used.
H
But Byrne J. stated :
N.1.1.L. v, N.I.N.H.L. (Chandrachud, C.J.) 781

There may be occasions when Directors may fairly A
and properly issue shares in the case of a Company
constituted like the present for other reasons. For
instance it would not be at all an unreasonable thing to
create a sufficient number of shareholders to enable
statutory powers to be exercised.
B
In the instant case, the issue of rights shares was made by the
Directors for the purpose of complying with the requirements of
FERA and the directives issued by the Reserve Bank under that Act.
The Reserve Bank had fixed a deadline and NHL had com-
mitted itself to complying with the Bank's directive before that
deadline . c
Peterson J. applied the principle enunciated in Fraser and in
Punt in the case of Piercy v. S. Mills & (Company Ltd. (supra)
The learned Judge observed at page 84 :

"The basis of both cases is, as I understand, that D
Directors are not entitled to use their powers of issuing
shares merely for the purpose of maintaining their con-
trol or the control of themselves and their friends over
the affiairs of the company, or merely for the purpose
of defeating the wishes of the existing majority of
shareholders."
E

The fact that by the issue of shares the Directors succeed, also or
incidep.tally, in maintaining t!ieir control over the Company or in
newly acquiring it, does not amount to an abuse of their fiduciary
power. What is considered objectionable is the use of such powers
merely for an extraneous purpose like maintenance or acquisition F
of control over the affairs of the Company.

In Hogg v. Cramphorn Ltd., (supra) it was held that if the
power to issue shares was exercised from an imporoper motive, the
issue was liable to be set aside and it was immaterial that the
issue was made in a bona fide belief that it was in the interest of the G
Company. Buckley J. reiterated the principle in Punt and in
Piercy, (Supra) and observed :

"Unless a majority in a company is acting oppressively
towards the minority, this Court should not and will
not itself interfere with the exercise by the majority
of its constitutional rights or embark upon an iuquiry
H
into the respective merits of the views held or policies
782 SUPREME COURT REPORTS [1981) 3 S.C.R.

A fa·;oured by the majority and the minority. Nor will
this Court permit directors to exercise powers, which
have been delegated to them by the company in circum-
stances which put the directors in a fiduciary position
when exercising those powers, in such a way as to inter-
fere with the exercise by the majority of its constitu-
tional rights; and in a case of this kind also, in my
judgment, the court should not investigate the rival
merits of the views or policies of the parties." (p. 268)

Applying this principle, it seems to us difficult to hold that by the
issue of rights shares the Directors of NHL interfered in any manner
c with the legal rights of the majority. The majority had to disinvest
or else to submit to the issue of rights shares in order to comply
with the statutory requirement of FERA and the Reserve Bank's
directives. Having chosen not to disinvest, an option which was
open to them, they did not any longer possess the legal right to
insist that the Directors shall not issue the rights shares. What the
n Directors did was clearly in the larger interests of the Company
and in obedience to their duty to comply with the law of the land.
The fact tliat while discharging that du_ty they incidentally trenched
upon the interests of the majority cannot invalidate their action.
The conversion of the existing majority into a majority was a con -
sequence of what the Directors were obliged lawfully to do. Such
E conversion was not the motive force of their action.

Before we advert to the decision of the Privy Chuncil in
Howard Smith Ltd. v. Ampol Petroleum Ltd., (supra) we would like
to refer to the deeision of the High Court of Australia in Harlowe's
Nominees Pty. Ltd v. Woodside (Lakes Entrance) Oil Company No
F Liability and another, (supra) and to the Canadian decision of
Berger J. of the Supreme Court of British Columbia, in the case
of Teck Corporation Ltd. v. Miller et a/(1), both of which were consi..
dered by Lord Wilberfore in Howard Smith. On a consideration
of the English decisions, including those in Punt and Piercy, Barwick
C.J. said in Harlowe' s Nominees (supra) :
G
"The principle is that although primarily the power is
given to enable capital to be raised when required for
the purposes of the company, there may be occasions
when the directors may fairly and properly issue shares
H for other reasons, so long as those reasons relate to a

(I) 33 D.L.R. (3d), 288.
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 783

purpose of benefiting the company as a whole, as dis- A
tinguished from a purpose, for example, of maintaining
control of the company in the hands of the directors
themselves or their friends. An inquiry as to whether
additional capital was presently required is often most
relevant to the ultimate question upon which the vali-
dity or the invalidity of the issue depends; but that B
ultimate question must always be whether in truth the
issue was made honestly in the interests of the com-
pany." (p. 493)

We agree with the principle so stated by the Australian High Court
and, in our opinion, it applies with great force to the situation in c
the present case. In Teck Corporation, (supra) the Court examined
several decisions of the English Courts and of other Courts, including
the one in Hogg. (supra) The last headnote of the report at page
289 reads thus :

"Where directors· of a company seek, by entering into D
an agreement to issue new shares, to prevent a majority
shareholder from exercising control of the company, they
will not be held to have failed in their fiduciary duty to the
company if they act in good faith in what they believe. on
reasonable grounds, to be the interests of the company. If
the directors' primary purpose is to act in the interests of
E
the company, they are acting in good faith even though
they also benefit as a result''.

In Howard Smith, no new principle was evolved by Lord Wilber-
force who, distinguishing the decisions in Teck Corporation and
Harlowe' s Nominees, (supra) said :
F

"By contrast to the cases of Harlowe and Teck, the
present case, ·on the evidence, does not, on the findings of
the trial judge, involve any consideration of management,
within the proper sphere of the directors. The purpose
found by the judge is simply and solely to dilute the majority G
voting power held by Ampol and Bulkships so as to enable
a then minority of shareholders to sell their shares more
advantageously. So far as authority goes, an issue of
shares rurely for the purpose of creating voting power has
repeatedly been condemned". (page 837) H
784 SUPREME COURT REPORTS (1981] 3 S.C.R.

A The dictum of Byrne J. in Punt (supra) that "there may be reasons
other than to raise capital for which shares may be issued" was
approved at page 836 and it was observed at page 837

"Just as it is established that directors, within their
management powers, may take decisions against the wishes
B of the majority of shareholders, and indeed that the majority
of shareholders cannot control them in the exercise of
these powers while they remain in office (Automatic Self-
Cleansing Filter Syndicate Co. Ltd. v. Cuninghams, (1906)
2 Ch. 34), so it must be unconstitutional for directors to
use their fiduciary powers over the shares in the company
c purely for the purpose of destroying an existing majority,
or creating a new majority which did not previously exist.
To do so is to interfere with that element of the company's
constitution which is separate from and set against their
powers. If there is added, moreover, to this immediate
purpose, an ulterior purpose to enable an offer for shares
D to proceed which the existing majority was in a position
to block, the departure from the legitimate use of the
fiduciary power becomes not Jess, but all the greater. The
right to dispose of shares at a given price is essentially an
individual right to be exercised on individual decision and
on which a majority, in the absence of oppression or
E . similar impropriety, is entitled to prevail".

In our judgment, the decision of the Privy Council in Howard Smith,
(supra) instead of helping the Holding Company goes a long way in
favour of the appellants. The Directors in the instant case did not
exercise their fiduciary powers over the shares merely or solely for
F the purpose of destroying an existing majority or for creating a new
majority which did not previously exist. The expressions 'merely',
'purely', 'simply' and 'solely' virtually lie strewn all over page 837
of the report in Howard Smith. The Directors here exercised their
power for the purpose of preventing the affairs of the Company
from being brought to a grinding halt, a consummation devoutly
c wished for by Coats in the interest of their extensive world-wide
business.

In Nana/ala Zaver and another v. Bombay Life Assurnnce Co.
Ltd., (supra) Das J., in his separate but concurring judgment deduced
H the following principle on the basis of the English decisions :
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 785

"It is well established that directors of a company are A
in a fiduciary position vis-a-vis the company and must
exercise their power for the benefit of the company. If the
power to issue further shares is exercised by the directors
not for the benefit of the company but simply and solely
for their personal aggrandisement and to the detriment of
the company, the Court will interfere and prevent the B
directors from doing so. The very basis of the Court's
interference in such a case is the existence of the relation-
ship of a trustee and of cestui que trust as between the
. /
directors and the company".
1 (pp. 419-420)
c
It is true that Das J. held that Singhanias were complete strangers
to the company and consequently the Directors owed no duty, much
less a fiduciary duty, to them. But we are unable to agree with the
contention that the observations extracted above from the judgment
of Das J. are obiter. The learned Judge has set forth the plaintiffs'
contentions under three sub-heads at page 415. At the bottom of D
page 419 he finished discussion of the 2nd sub-head and said : "This
leads me to a consideration of the third sub-head on the assumption
that ...... the additional motive was a bad motive". The question
was thus argued before the Court and was squarely dealt with.

Before we leave this topic, we would like to mention that the E
mere circumstance that the Directors derive benefit as shareholders
by reason of the exercise of their fiduciary power to issue shares,
will not vitiate the exercise of that power. As observed by Go\Yer
in Principles of Modern Company Law, 4th edn., p. 578 :

"As it was happily put in an Australian case they are F
'not required by the law to live in an unreal region of
detached altruism and to act in a vague mood of ideal
abstraction from obviou~ facts which must be present to
the mind of any honest and intelligent man when he exercises
his power as a director". '
~ G
The Australian case referred to above by the learned author is
Mills v. Mills, (supra) which was specifically approved by Lord
Wilberforce in Howard Smith. In Mana/a Zaver (supra) too, Das J.
stated at page 425 that the true principle was laid down by the
Judicial Committee of the Privy Council in Hirsche v. Sims( 1), thus : H
(1) [1894] A.C. 654, 660-661.

._,.,,,.··'
786 SUPREME COURT REPORTS [1981] 3 S.C.R.

"If the true effect of the whole evidence is, that the
A defendants truly and reasonably believed at the time that
what they did was for the interest of the company they are
not chargeable with do/us ma/us or breach of trust merely
because in promoting the interest of the company they
were also promoting their own, or because the afterwards
sold shares at prices which gave them large profits".
B
Whether one looks at the matter froin the point of view
expressed by this Court in Nana/a Zaver or from the point of view
expressed by the Privy Council in Howard Smith, (supra) the test is
the same, namely, whether the issue of shares is simply or
solely for the benefit of the Directors. If the shares are issued in the
c larger interest of the Company, the decision to issue shares cannot
be struck down on the ground that it has incidentally benefited the
Directors in their capacity as shareholders. We must, therefore,
reject Shri Seervai's argument that in the instant case, the Board of
Directors abused its fiduciary power in deciding upon the issue of
rights shares.
D
The second of the three questions arising out of the proceed-
ings of the Board's meeting dated April 6, 1977 concerns the validity
of the appointment of Silverston as an Additional Director. Under
section 287(2) of the Companies Act, 1956 the quorum for the said
meeting of Directors was two. There can be no doubt that a quorum
E of two Directors means a quorum of two directors who are competent
to transact and vote on the business before the Board. (see Greymouth
v. Greymouth and Palmer's Company Precedents,(1) 17th Edn.: p. 579,
f.n.3). ,The contention of the Holding Company is that Silverston
was a Director "directly or indirectly concerned or interested" in
F the arrangement or contract arising from the resolutions to offer and
allot rights shares and consequently, the resolutions were invalid :
fistly on the ground that they were passed by a vote of an interested
director without which there would. be no quorum and secondly
because, Silverston's appointment as an Additional Director was for
G the purpose of enabling' the said resolution to be passed for the
benefit of interested directors. · Relying upon a decision of the
Bombay High Court in Firestone Tyre & Rubber Co. v. Synthetics &
Chemicals Ltd. ,( 2) Shri Seervai contends that section JOO of the
Companies Act embodies the general rule of equity that no person
H who has to discharge duties on behalf of a corporate body shall be

(I) [1904] l Ch. 32.
(2) [1971] 41 Company Cas, 377.
N.1.1.L. v. N.I.N.H.L. (Chandrachud C.J.) 787

allowed to enter into engagements in which he has a personal interest A
conflicting, or which may possibly conflict, with the interests of those
whom he is bound to protect.

The reason why it is said that Silverston was interested in or
concerned with the allotment of the rights shares to the existing
shareholders is, firstly because at the Ketty meeting held in October B
1976 he had acted as an 'Advisor to the Indian shareholders' and
secondly, because on October 25, 1976 he had written a letter to
Kingsley purporting to convey his advice to the Board of Directors.
That letter contains allegations against the Needle Industries, U.K.
and of Coats. In other words, it is contended, Silverston was
( hostile to Needle Industries, U.K., and to Coats, and no person in
his position could possibly bring to bear an unbiassed or disinterest-
c
ed judgment on the question which arose between the Holding
Company and the Indian shareholders as regards the issue of rights
shares. It is also said that certain other aspects of Silverston's
conduct, including his attitude in the meeting of the 6th April, show
that he was an interested director. D
We are unable to accept the contention that Silverston is an
'interested' director within the meaning of section 300 of the Com-
panies Act. In the first place, it is wrong to attribute any bias to
Silverston for having acted as an adviser to the Indian shareholders
in the Ketty meeting. Silverston is by profession a solicitor and we
E
suppose that legal advisers do not necessarily have a biassed attitude
to questions on which their advice is sought or tendered. The fact
that Silverston was received cordially in U.K. both by Raeburn and
Mackrael when he ~ent there in January 1977 shows that even after
he had acted as an adviser to the Indian shareholders it was not
thought that he was in any sense biassed in their favour. Silverston's
F
alleged personal hostility to Coats cannot, within Jhe meaning of
section 300(1) of the Companies Act, make him a person "directly or
indirectly, concerned or interested in the contract or arrangement"
in the discussion of which he had to participate or upon which he
had to vote. Section 300(1) disqualifies a Director from taking part
in the discussion of or voting on any contract or arrangement entered
G
into or on behalf of the company, if he is in any way concerned
or interested in that contract or arrangement. Under section 299(1)
of the Companies Act, "Every director of a Company who is in any
way, whether directly or indirectly, concerned or interested in a con-
tract or arrangement or proposed contract or arrangement, entered
H
into or to be entered into, by or on behalf of the company, shall
disclose the nature of his concern or interest at a meeting of the Board
788 SUPREME COURT REPORTS (1981) 3 S.C.R.

A of Directors." The concern or interest of the Director which has to
be disclosed at the Board meeting must be in relation to the contrai~t
or arrangement entered into or to be entered into by or on behalf
of the company. The interest or concern spoken of by sections 299(1)
and 300(1) cannot be a merely sentimental interest or ideological
concern. Therefore, a relationship of friendliness with the Directors
B who are interested' in the contract or arrangement or even the mere
fact of a lawyer-client relationship with such directors will not dis-
qualify a person from acting as a Director on the ground of his being,
under section 300(1), an "interested" Director. Thus, howsoever one
may stretch the language of section 300(1) in the interest of purity of
company administration, it is next to impossible to bring Silverston's
c appointment within the framework of that provision. In the Firestone
(supra) the Solicitor-Director was held to be concerned or interested
in the agreement for the appointment of Kilachands as selling
agents, as he had a substantial shareholding in a private limited
company of Kilachands. Besides, he was also a shareholder-director
in various other concerns ot Kilachands.
D
We must, accordingly, reject the argument that Silverston was
an interested airector, therefore his appointment as a Additional
Director was invalid and that consequently, the resolution for the
issue of rights shares was passed without the necessary quorum of two
disinterested directors. We have already held that the resolution
was not passed for the benefit of the Directors. There is therefore
no question of Silverston's appointment having been made for the
purpose of enabling such a resolution to be passed.

The third .contention, arising out of the proceedings of the
meeting of 6th April, to the effect that Silverston's appointment as
F an Additional Director is invalid since there was no item on the
agenda of the meeting for the appointment of an Additional Director
is equally without substance. Section 260 of the Companies Act
preserves the power of the Board of Directors to 'appoint additional
Directors if such a power is conferred on the Board by the Articles
of Association of the Company. We are not concerned with the
G other conditions laid down in the section, to which the appointment
is subject. It is sufficient to state that Article 97 of NIIL's Articles
of Association confers the requisite power on the Board to appoint
additional Directors.

H We do not see how the appointment of an additional Director
could have been foreseen before the 6th April, on which date
the meeting of the Board was due to be held. The occasion to
N.I.l.L. v. N.l.N.H.L. (Chandrachud, C.J.) 789

appoint Silverston as an Additional Director arose when the Board A
met on 6th April, with Devagnanam in chair. Sanders was absent
and no communication was received from or on behalf of the
Holding Company that they had decided finally not to disinvest.
They always had the right to such a locus penitentia. Were they to
intimate that they were ready to disinvest, there would have been
no occasion to appoint an additional Director. That occasion arose B
only when the picture emerged clearly that the Board would have to
consider the only other alternative for reduction of the non-resident
holding, namely, the issue of rights shares. It is for this reason
that the subject of appointment of an additional Director could not
have, in the then state of facts, formed a part of the Agenda. Silver- c
ston's appointment is, therefore, not open to challenge on the
ground of want of agenda on that subject.

It is necessary to clear a misunderstanding in regard to the
Directors to issue shares. It is not the law that the power to shares
can be used only if there is need to raise additional capital. It is
true that the power to issue shares is given primarily to enable D
capital to be raised when it is required for the purposes of the
company but that power is not conditioned by such need. That
power can be used for other reasons as, for example, to create a
sufficient number of share-holders to enable the company to exercise
statutory powers (Punt v. Symons and Co.), (Supra) or to enable it
to comply with legal requirements as in the instant case. In Hogg v. E
Cramphorn (supra). Buckley J. (p 267) agreed with the law of Byrne
J. in Punt. And so did Lord Wilberforce (pp 83 5-836) in Howard
Smith (supra) where he said :

"It is, in their Lordships' opinion, too narrow an
approach to say that the only valid purpose for which F
shares may be issued is to raise capital for the company.
The discretion is not in terms limited in this way : the law
should not impose such a limitation on Directors' powers.
To define in advance exact limits beyond which directors
'must not pass is, in their Lordships' view, impossible. This
clearly cannot be done by enumeration, since the variety of G
different types of Company in different situations cannot
be anticipated".
The Australian decision in Harlowe Nominees (supra) took the same
view of the directors' power to issue shares. It was said therein :
H
"The principle is that although primarily the power is
given to enable capital to be raised when required for the
790 SUPREME COURT REPORTS (1981) 3 S.C.R.

A purposes of the company, there may be occasions when the
directors may fairly and properly issue shares for other
reasons, so long as those reasons relate to a purpose of
benefiting the company as a whole, as distinguished from a
purpose, for example, of maintaining control of the com-
pany in the hand of the directors themselves or their
B friends".

We have already expressed our view that the rights share were issued
in the instant case in order to comply with the legal requirements,
which, apart from being obligatory as the only viable course
open Lto the Directors, was for the benefit of the company
c since, otherwise, its developmental activities would have stood
frozen as of December 31, 1973. The shares were not issued as a
part of takeover war between the rival groups of shareholders.

The decision to issue rights shares was assailed on the ground
also that the company did not, as required by the Reserve Bank's
letter dated May 11, 1975 submit any scheme indicating whether the:
D reduction in the non-resident interest was proposed to be brought
about by issue of additional equity capital to Indian residents to the
extent necessary to finance any scheme of expansion or diversification.
It is true that by the aforesaid letter, the Reserve Bank had asked
NHL to report to it as to how the Company proposed to reduce the
non-resident interest: whether by disinvestment by:non-resident share-
E holders, or by issue of additional equity capital to Indian residents
to the extent necessary to finance any scheme of expansion/diversifl1-
cation, or by both. We are, however, unable to read the Bank's
letter as requiring or asking the Company not to issue the additional
capital unless it was necessary to do so for financing a scheme of
expansion or diversification. The Reserve Bank could not have
F intended to impose any such condition by way of a general direction
in face of the legal position, which we have 5et out above, that the
power of the Directors to issue shares is not conditioned by the need
for additional capital. We are not suggesting that the Reserve Bank,
in the exercise of its statutory functions, cannot ever impose su1;h
conditions as it deems appropriate, subject to which alone a new
G
issue may be made. But neither the wording of the Bank's letter
nor the true legal position justifies the stand of the Holding Com-
pany. The minutes of the Ketty meeting of October 20-21, 1976
saying that it was agreed that the rights issue, with the Indian
share-holders taking up the U.K. members' rights, would be con-
H sidered provided it was demonstrated by NIIL that "there is a viable
development plan requiring funds that the expected NIIL cash flow
N.1.1.L. v. N.I.N.H.L. (Chandrachud, C.J.) 791

cannot meet", cannot also justify the argument that the p)Wer of A
the company to issue rights shares was, by agreement, conditioned
by the need to raise additional capital for a development plan. In
fact, the occasion for consideration by the Holding Company of
NIIL's proposal to issue rights shares did not arise, since the
Holding Company virtually boycotted the meeting of April 6.
Assuming for the sake of argument that there was any such under- B
standing between the parties, the minutes of the meeting of April
6 show that the Company needed additional capital for its expan·
sion. The minutes say :

"As per the final budget for the year 1977, the work-
ing capital requirements amounted to nearly Rs. 100 lakhs c
and even after tapping the facilities that we will be entitled
to obtain from the Banking sector, we will be left with a
gap of about Rs. 25 lakhs which can be met by only in•
creasing equity capital and attracting deposits from
public''.
D
There is no reason to believe that this statement does not accord 1
with the economic realities of the situation as assessed by the
Directors of the Company.

Finaily, it is also not true to say, as a statement of law, that
Directors have no power to issue .shares at par, if their market E
price is above par. These are primarily matters of policy for the
Directors to decide in the exercise of their discretion and no hard
and fast rule can be laid down to fetter that discretion. As obverved
by Lord Davey in Hilder and others v. Dexter(1).

"I am not aware of any law which obliges a company F
to issue its shares above par because they are saleable at a
premium in the market. It depends on the circumstances
of each case whether it will be prudent or even possible to
do so, and it is a question for the directors to decide".

What is necessary to bear in mind is that such discretionary powers G
in company administration are in the nature of fiduciary powers and
must, for that reason, be exercised in good faith. Mala fides
vitiate the exercise of such discretion. We may mention that in
the past, whenever the need for additional capital was felt, or for
other reasons, NHL issued shares to its members at par. H
(I) [1902) A.C. 474, 480.
792 SUPREME COURT REPORTS (1981] 3 s.c.R.

A We are therefore of the opinion that Devagnanam and his
group acted in the best interests of NIIL in the matter of the issue
of rights shares and indeed, the Board of Directors followed in the
meeting of the 6th April a course which they bad no option but to
adopt and in doing which, they were solely actuated by the conside-
ration as to what was in the interest of the company. The share-
holder-Directors who were interested in the issue of rights shares
B neither participated in the discussion of that question nor voted
upon it. The two Directors who, forming the requisite quorum,
resolved upon the issue of rights shares were Silverston who, in our
opinion, was a disinterested Director and Doraiswamy, who un-
questionably was a disinterested Director. The latter has been
referrred to in the company petition, Mackrael's reply affidavit and
c in the Holding Company's Memorandum of Appeal in the High
Court as "uninterested", "disinterested" and "independent". At
a crucial time when Devagnanam was proposing to dispose of his
shares to Khaitan, Sanders asked for Doraiswamy's advice by his
letter dated August 6, 1975 in which he expressed "complete con-
fidence" in Doraisway in the knowledge that the Holding Company
D could count on his guidance. Disinvestment by the Holding Com-
pany, as one of the two courses which could be adopted for reducing
the non-resident interest in NHL to 40% stood ruled out; on account
of the rigid attitude of Coats who, during the period between the
Ketty meeting of October 20-21, 1976 and the Birmingham dis-
cussions of March 29-31, 1977 clung to their self-interest, regardless
E of the pressure ~f FERA, the directive of the Reserve Bank of India
and their transparent impact on the future of NHL. Devagnanam
and the disinterested Directors, having acted out of legal compul-
sion precipitated by . the obstructive attitude of Coats and their
action being in the larger interests of the company, it is impossible
to hold that the resolution passed in the meeting of April 6 for the
F issue of rights shares at par to the existing shareholders of NIIL
constituted an act of oppression against the Holding Company.
That cannot, however, mark the end of the case because 2nd May
has still to come and Shri Seervai's argument is that the true
question before the Court is whether the offer of rights shares to all
G existing shareholders of NHL but the issue of rights shares to existing
Indian shareholders only, constitutes oppression of the Holding
Company.

That takes us to the significant, and if we may so call them,
H sordid, happenings between April 6 and May 2, 1977. Devagnanam
wrote a letter to Raeburn on April 12, 1977 stating that a copy of
N.1.1.L. v. N.I.N.H.L. (Chandrachud C.J.) 793

the Reserve Bank's letter dated March 30, 1977 was enclosed there- A
with. It was in fact not enclosed. Pursuant to the decision taken
in the Board's meeting of April 6, a letter of offer dated April 14
was prepared by NIIL. Devagnanam's letter to Raeburn dated
April 12, (without a copy of the Reserve Bank's letter da!ed March
30) and the letter of offer dated April 14 were received by Raebum
on May 2, 1977 in an envelope bearing the postal mark of Madras 8
dated April 27, 1977. The letter of offer which was posted to the
Holding Company also bore the postal mark of Madras dated
April 27, 1977 and that to was received in Birmingham on May 2,
. /
1977. The letter of offer which was posted to one of the Indian
\ shareholders, Manoharan, who was siding with Coats, was also
posted in an envelope which bore the postal mark of Madras dated c
April 27, 1977. On April 19, 1977, a notice of the Board's meeting
for May 2, 1977 was prepared. One of the items on the Agenda
of the meeting was stated in the notice as "Policy-(a) Indianisation
(b) Allotment of shares". The notice dated April 19 of the Board's
meeting for May 2 was posted to Sanders in an envelope which bore
the postal mark of Madras dated April 27, 1977 and was received D
· by him in Birmingham on May 2, 1977, after the Board's meeting
fixed for that date had already taken place.
It puts a severe strain on one's credulity to believe that the
letters of offer dated April 14 to the Holding Company, to Raeburn
and to Manoharan were posted on the 14thitse If but that somehow
E
they rotted in the post office until the 27th, on which date they took
off simultaneously· for their respective destinations. The affidavit
of Selvaraj, NIIL's senior clerk in the despatch Department and the
relevant entry in the outward register are quite difficult to accept on
this point since they do not accord with the ordinary course of
human affairs. Not only the three letters of offer abovesaid, but
F
even the notice dated April 19, of the Board meeting for May 2,
was received by Sanders at Birmingham in an envelope bearing the
Madras postal mark of April 27. Selvaraj's affidavit, apparently
supported by an entry in the outward register, that the envelope
addressed to Sanders containing the notice of 19th April was posted
on the 22nd is also difficult to accept. It takes all kinds to make G
the world and we do not know whether the NIIL's staff was advised
astrologically that 27th April was an auspicious date for posting
letters. But if only they had sought a little legal advice which, at
least from Doraiswamy and Silverston, was readily available to
them, they would have seen the folly of indulging in such behaviour.
Add to that the circumstance that Devagnanam's letter to Raeburn
H
dated April 12 was put in the same envelope in which the letter of
794 SUPREME COURT REPORTS [198 I] 3 S.C.R.

A offer dated April 14 was enclosed and the envelope containing these
two important documents bore the postal mark of Madras dated.
27th April. These coincidences are too tell-tale to admit of any
doubt that someone or the other, not necessarily Devagnanam,
unduly solicitous of the interest of NIIL and of the Indian share..
holders manipulated to delay the posting of the letters of offer anC.
the notice of the Board meeting for 2nd May, until the 27th April.
B What is naively sought to be explained as a mere coincidence
reminds one of the 'Brides in the Bath Tub' case : The death or
the first bride in the bath tub may pass off as an accident and of the:
second as suicider but when, in identical circumstances, the third
bride dies of asphyxia in the bath tub, the conclusion becomes com··
pelling, even applying the rule of circumstantial evidence, that she
c died a homicidal death.

The purpose behind the planned delay in posting the letter:;
of offer to Raeburn and to the Holding Company, and in posting
the notice of the Board's meeting for May 2 to Sanders, wa:;
palpably to ensure that no legal proceeding was. taken to injunct
l> the holding of the meeting. The object of withholding these im-
portant documents, until it was quite late to act upon them, wa:;
to present to the Holding Company a fait accompli in the shape
of the Board's decision for allotment of rights shares to the existing
Indian shareholders.
E
We are, however, unable to share the view expressed in the
'12th Conclusion' in the appellate judgment of the High Court
that Devagnanam and "his colleagues in the Board of Directors'''
arranged to ensure the late posting of the letters of offer and the
notice of the meeting. We do not accept Shri Nariman's argument
that Devagnanam must be exonerated from all responsibility il
F
this behalf because he was away in Malacca from April 13 to 26.
In the first place, to be in a place on two dates is not necessarily to
be there all along between those dates and therefore we cannc t
infer that Devagnanam was in Malacca from 13th to 26th sinc:e
he was there on the 13th and the 26th. Be~ides, it was easy for a
man of Devagnanam's importance and ability to pull the strings
G from a distance and his physical presence was not necessary to
achieve the desired result. That is how puppets are moved. But
there is no evidence, at least not enough, to justify the categorical
1
finding recorded by the appellate Bench of the High Court. T 1e
fact that Devagnanam stood to gain by the machination is a relevant
H
factor to be taken into account but even that is not the whole
truth: NIIL, not Devangnanam was the real beneficiary, a thei:is
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 795

which we have expounded over the last many pages. And the in- A
volvement of the other Directors by calling them Devagnanam's
colleagues is less than just to them. There is not a shred of evidence
to justify the grave charge that they were willing tools in Deva-
gnanam' s hands and lent their help to concoct evidence. We clear
their conduct, expressly and categorically.
B
In so far as Devagnanam himself is concerned, there is room
enough to suspect that he was the part-author of the late postings
of important documents, especially since he was the prime actor in
the play of NIIL's Indianisation. But even in regard to him, it is
difficult to carry the case beyond the realm of suspicion and 'room
enough' is not the same thing as 'reason enough'. Section 15 of c
the Evidence Act which carries the famous illustration of a person
obtaining insurance money on his houses which caught fire succes-
sively, the question being whether the fire was accidental or inten-
tional or whether the act was done with a particular knowledge or
intention, will not help to fasten the blame on Devagnanam
because, it is not shown that he was instrumental or concerned in D
any of the late postings complained of. Were his complicity shown
in any of these, it would have been easy to implicate him in all
of them.

On the contrary, there is an admitted act, described as a lapse,
on Devagnanam's part which shows that he failed to do what was to
E
his advantage to do. It may be recalled that in his letter dated
April 12 to Raeburn, Devagnanam stated that he was enclosing
therewith a copy of the Reserve Bank's letter dated March 30, 1977
but that was not enclosed. Nothing was to be gained by suppressing
the Reserve Bank's letter from Raeburn who was always sympathetic
F
to the Indian shareholders. If anything, there was something to
gain by apprising Raeburn of the mgency of the matter in view of
the Reserve Bank's letter. The strongest point in favour of the
Indian shareholders was the last para of the Reserve Bank's letter
which they would have liked the U.K. shareholders to know.
Raeburn's response of 2nd May to Devagnanam's letter of 12 April
G
and the letter of offer was without the knowledge of Reserve Bank's
letter of March 30. When the Bank's letter was sent to Raeburn
along with Devagnanam's letter of May 11, Raeburn categorially
supported the stand of the Indian shareholders, as is clear from
paragraph 4 of the letter dated June 8, 1977 by Raeburn to Mackrael, H
a copy of which was sent by Raeburn to Devagnanam along with his
letter dated June 17, 1977.
796 SUPREME COURT REPORTS [1981J 3 S.C.R.
The inferences arising from the late posting of the Jetter of
A
offer to the Holding Company as also of the notice of meeting for
May 2 to Sanders and the impact of inferences on the conduct and
intentions of Devagnanam are one thing : we have already dealt with
that aspect of the matter. Their impact on the legality of the
offer and the validity of the meeting of May 2 is quite another
matter, which we propose now to examine. In doing this, we will
B keep out of consideration all questions relating to the personal
involvement of Devagnanam and his group in the delay caused in
sending the letters of offer and the notice of meeting for iv1ay 2.
First, as to the letter of offer : The letter of offer dated April
14, 1977 sent to the Holding Company at Birmingham, like all
other letters of offer, mentions, inter alia that it was resolved in the
meeting of April 6 to increase the issued capital of the company
c from 32,000 shares of Rs. 100 each to 48,000 shares of Rs. JOO
each by issuing Rights Shares to the existing shareholders on the
five conditions mentioned in the letter. The second condition
reads thus : "If the offer is not accepted within 16 days from the
date of offer, it shall be deemed to have been declined by the
D shareholder". The Holding Company was informed by the last
paragraph of the letter of offer that in respect of its holding of
18,990 shares, it was entitled to 9495 rights shares and that its
acceptance of the offer together with the application money (at
Rs.50/- per share) should be forwarded so as to reach the registered
office of NHL on or before April 30, 1977. A postal communication
E by air between U.K. and Mardas, which is the normal mode of
communication, generally takes five days to reach its destination.
If the letter of offer were to be posted on the 14th itself in
Mardas, it would have reached the Holding Company in Birimingham,
say, on the 19th. Even assuming that the 16 days' period
allowed for communicating the acceptance of offer is to be counted
F
from the 14th and not from the 19th, it would expire on 30th April,
To that has to be added the period of five days which the Holding
Company's letter would take to reach Madras. That means that the
Holding Company would be within its rights if its acceptance reached
NHL on or before May 5, 1977. The Board of Directors had,
however, met in Madras three days before that and had allotted the
G
entire issue of the rights shares to the Indian shareholders, on the
ground that Holding Company had not applied for the allottment
of the shares due to it. Jn these circumstances, it is quite clear
that the rights shares offered to the .Holding Company could not
have been allotted to anyone in the meeting of May 2, for the
H supposed failure of the Holding Company to communicate its
acceptance before April 30. The meeting of May 2, of which the
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 797

main purpose was to consider 'Allotment' of the rights shares must, A
therefore, be held to be abortive which could produce no tangible
result. The matter would be worse if April 27, and much worse if
May 2, were to be taken as the starting point for counting the
period of 16 days. Except for circumstances, hereinafter appearing
the allotment to Indian shareholders of the rights shares which were
offered to the Holding Company would have been difficult to accept B
and act upon.

The objection arising out of the late posting of the notice
dated April 19 for the meeting of 2nd May goes to the very root
."( of the matter. That notice is alleged to have been posted to N.T.
Sanders, Studley, Warwickshire, U.K. on April 22. But we have c
already held that in view of the fact that the envelope in which the
notice was sent bears the postal mark of Madras dated April 27, 1977,
this latter date must be taken to be the date on which:i the notice
was posted. The notice was received by Sanders on May 2, on which
date the Board's meeting for allotment of rights shares was due to be
held and was, in fact, held. The utter inadequacy of the notice to D
Sanders in terms of time stares in the face and needs no further
argument to justify the finding that the holding of the meeting was
illegal, at least in so far as the Holding Company is concerned. It
is self-evident that Sanders could not possibly have attended the
meeting. There is, therefore, no alternative save to hold that the
decision taken in the meeting of May 2 cannot, in the normal E
circumstances, affect the legal rights of the Holding Company or
create any legal obligations against it.
The next question, and a very important one at that on which
there is a sharp controversy between the parties, is as to what is the F
-~- consequence of the finding which we have recorded that the objection
arising out of the late position of the notice of the meeting for 2nd
May goes to the root of the matter. The answer to this question
depends upon whether the Holding Company could have accepted
the offer of the rights shares and if, either for reasons of volition or
of legal compulsion, it could not have accepted the offer, whether G
it could have at least renounced its right under the offer to, a
resident Indian, other than the exisiting Indian shareholders. The
decision of this question depends upon the true construction of the
provisions of FERA and of sections 43A and 81 of the Companies
Act, 1956.
H
We have already reproduced the relevant provisions of FERA,
namely, section 2(p), (q) and (u); section 19(1)(a), (b) and (d);
798 SUPREME COURT REPORTS . [1981] 3 S.C.R.

A section 29(1}(a); section 29(2)(a), (b) and (c) ; and section 29(A)(a)
and (b). Section 29(1) provides that :

... notwithstanding anything contained in the provi-
sions of the Companies Act, 1956 a company which is not
incorporated under any law in force in 'India or in which
B the non-resident interest is more than forty per cent shall
not, except with the general or special permission of the
Reserve Bank carry on in India any trading, commercial or
industrial activity other than the one for which permission
of the Reserve Bank has been obtained under section 28.

c The other provisions are of ancillary and consequential nature,
following upon the main provision summarised above.

NIIL had applied for the necessary permission, since the non-
resident interest therein was more than 40%, the Holding Company
owing nearly 60% of its share capital. That permission was accord-
D ed by' the Reserve Bank on certain ·conditions which, inter alia,
stipulated that the reduction in the non-resident holding must be
brought down to 40% within one year of the receipt of its letter,
that is, before May 17, 1977 and that until then, the manufacturing
and business activities of the Company shall not be extended beyond
the approved level as of December 31, 19!3·
E
It is contended by Shri Seervai that non-compliance with the
condition regarding the dilution of non-resident interest within the
stipulated period could not have resulted in the RBI directing NHL
to close down its business or not to carry on its business. It is also
F argued that non-complaince with the conditions imposed for permis-
sion to carry on its business would not have exposed the Indian
directors to any penalties or liabilities and that, in the absence of a
power to revoke the permission already granted (as in other sections
like sections 6 and 32), the RBI had no power to revoke the permis-
sion granted to NIIL even if the conditions ~ubject to which the
G permission was granted were breached. According to counsel,
closing down a business which the RBI had allowed to be continued
by granting permission would have such grave consequences -public
and private-that the power to direct the business to be discontinued
was advisably not conferred, even if the conditions are breached.
H Section 29(4)(c), it is urged, which enables the RBI to direct non-
residents to sell their shares or cause them to be sold where an
application under section 29(4)(a), for permission to continue to
N.1.1.L. v. N.I.N.H.L. (Chandrachud, C.J.) 799

hold shares, was rejected is the only power givea to the Reserve A
Bank where a condition imposed under section 29(2) is breached.

We are unable to accept these conte;1tions. The Reserve B1nk
granted permission to NIIL to carry on its business, "subject to) the
conditions" mentioned in the letter of May 11, 1976. It may be
that each of those conditions is not of the same rigour or importance B
as e.g. the condition regarding the progress made in implementing
the other conditions, which could reasonably be relaxed by condo-
nation of the late filing of any particular quarterly report. But the
dilution of the non-resident interest in the equity capital of the
Company to a level not exceeding 40% "within 'a period of l(one)
year from the date of the receipt of'' the let ~er was of the very
c
essence of the matter. A permission granted subject to the condi-
tion that such dilution shall be effected would cease automatically
on the non-compliance with the condition at the end of the stipulat-
ed period or the extended period, as the case may be. The argument
of the Holding Company would make the granting of a conditional
permission an empty ritual since, whether or not the company
D
performs the conditions, it would be free to carry on its business,
the only sanction available to the Bank being, as argued, that ;it ~can
compel or cause the sale of the excess non-resident interest in the
equity holding of the Company, under section 29(4)(c) of FERA.
This particular provision, in our opinion, is not a sanction for the
E
enforcement of conditions imposed on a Company under clause (c)
of section 29(2). Section 29(4)(c) provides for a situation in which
an application for holding shares in a Company is not made or is
rejected. The sanction for enforcement of a conditional permission
to carry on business, where conditions are breached, is the cessation,
ipso facto, of the permission itself on the non-performance of the F
conditions at the time appointed or agreed. This involves no element
of surprise or of unjustness because permission is granted, as
was done here, only after the applicant agrees to perform the con-
ditions within the stipulated period. When NHL wrote to the Bank
on Februrary 4, 1976 binding itself to the performance of certain
conditions, it could not be heard to say that the permission will G
remain in force despite its non-performance of the conditions. Having
regard to the provisions of section 29 read with sections 49, 56(1)
and (3) and section 68 of FERA, the continuance of business after
May 17, 1977 by NHL would have been illegal, unless the condition
of dilution of non-resident equity was duly complied with. It is H
needless, once again, !to dwell upon the impracticability of NHL
applying for extension of the period of one year allowed to it by the
800 SUPREME COURT REPORTS [1981] 3 S.C.R.

A Bank. Coats could be optimistic about such an extension'being grant-
ed especially, since thereby they could postpone Vthe evil day. For
NIIL, the wise thing to do, and the only course open to it, was to
comply with the obligation imposed upon it by Jaw, without delay or
demur.
It seems to us quite clear, that by reason of the provisions of
B section 29(1) and (2) of FERA and the conditional permission
granted by the RBI by its letter dated May 11, 1976, the offer of
rights shares made by NIIL to the Holding Company could not
possibly have been accepted by it. The object of section 29, inte;· .
--r-
alia, is to ensure that a company (other than a banking company)
in which the non-resident interest is more than 40% must reduce it
c to a level not exceeding 40%. The RBI allowed NHL to carry
on its business subject to the express condition ·that it shall reduce
its non-resident holding to a level not exceeding 40~~. The offer of
rights shares was made to the existing shareholders, including the
Holding Company, in proportion to the shares held by them. Since
the issued capital of the Company which consisted of 32,000 shares
D was increased by the issue of 16,000 rights shares, the Holding
Company which held 18,990 shares was offered 9495 shares. The
acceptance of the offer of rights shares by the Holding Company
would have resulted in a violation of the provisions of FERA and
the directive of the Reserve Bank. Were the Holding Company to
accept the offer of rights shares, it would have continued to hold
E
60% share capital in NHL and the Indian shareholders would have
continued to bold their 40% share capital in the Company. It would
indeed be ironical that the measure which was taken by NIIL's
Board of Directors for the purpose of reducing the non-resident
holding to a level not exceeding 40% should itself become an instru-
ment of perpetuating the ownership by the Holding Company of
F
60% of the eci.uity capital of NIIL. We are not suggesting that the
offer of rights shares need not have been made to the Holding
Company at all. But the question is whether the offer when made
could have been accepted by it. Since the answer to this question
has to be in the negative, no grievance can be made by the Holding
G Company that, since it did not receive the offer in time, it was
deprived of an opportunity to accept it.

We see no substance in Shri Nariman's contention that the letter
of offer could not have been sent to the Holding Company without
H first obtaining the RBl's approval under section 19 of FERA. Counsel
contends that under section 19(1)(b), notwithstanding anything con-
tained in section 81 of the Companies Act, no person can, except with
N.1.1.L. v. N.I.N.H.L. (Chandrachud, C.J.) 801

the general or special permission of the Reserve Bank, create 'any - A
interest in a security' in favour of a person resident outside India.
The word "security" is defined by section 2(u) to shares, stocks,
bonds, etc. We are unable to appreciate how an offer of shares by
itself creates any interest in the shares in favour of the person to
whom the offer is made. An offer of shares undoubtedly creates
"fresh rights" as said by this Court in Matha/one v. Bombay Life B
Assurance Co.(1) but, the right which it creates is either to accept the
offer or to renounce it, it does not create any interest in the shares
in respect of which the offer is made.

But though it could not have been possible for the Holding
Company to accept the offer of rights shares made to it, the question c
still remains whether it had the right to renounce the offer in favour
of any resident Indian person or company of its choice, be it an
existing shareholder like Manoharan or an outsider like Madura
Coats. The answer to this question depends on the effect of section
43A and 81 of the Companies Act, 1956.
D
We will first notice the relevant parts of sections 3, 43A and
81 of the Companies Act. Section 3(l)(iii) defines a "private com~
pany" thus :

"private company" means a company which, by its
articles :-- E

(a) restricts the right to transfer its shares, if any ;
(b) limits the number of its members to fifty and
(c) prohibits any invitation to the public to subscribe
for any shares in, or debentures of, the company. F
Clause (iv) of section 3(1) define a "public company" to mean a
company which is not a private company.
Section 43A of the Companies Act, which was inserted by Act
65 of 1960, reads thus :
G
43A. (1) Save as otherwise provided in this section,
where not less than twenty-five per cent of the
paid-up share capital of a private company
having a share capital, is held by one. or more
bodies corporate, the private, company shall... H
(I) [ 1954] S.C.R. 117.
802 SU\>REME COURT REPORTS [ 1981] 3 s.c.R.

A become by virtue of this section a public
company:

Provided that even after the private com-
pany has so become a public company, its
articles of association may include provisions
B relating to the matter specified in clause (iii) of
sub-section (I) of section 3 and the number of
its member.s may be, or may at any time be
·reduced, below seven :

(2) Within three months from the date on which
a private company becomes a public company
by virtue of this section, the company shall
inform the Registrar that it has become a
public company as aforesaid, and. thereupon
the Registrar shall delete the word "Private"
D before the word "Limited" in the name of the
company upon the register and shall also make
the necessary alterations in the certificate of
incorporation issued to the company and in its
memorandum of association.

E
(4) A private company which has become a public
company by virtue of this section shall continue
to be a public company until it has, with the
approval of the Central Government. and in
accordance with the provisions of this Act,
F again become a private company.

Section 81 of the Companies Act reads thus :

81. (I) Where ......... it is proposed to increase the sub-
scribed capital of the company by allotment of
further shares, then, ·
G
(a) such further shares, shall be .offered to the
persons who at the date .. of the offer, are
holders of the equity shares of the company
in proportion, as nearly as circumstances
H
admit, to the capital paid up on those shares
at that date ;
N.I.I.L. v. N.I N.H.L. ( Chandrachud, C.J.) 803

(b} the offer aforesaid shall be made by notice A
specifying the number of shares offered and
limiting a time not being Jess than fifteen
days from the date of the offer within which
the offer, if not accepted, will be deemed to
have been declined ;
B
(c} unless the articles of the company otherwise
provide, the offer aforesaid shall be deemed
to include a right exercisable by the person

.
I
concerned to reoounce the shares offered to
him or any of them in favour of any other
person, and the notice referred to in clause c
(b) shall contain a statement of this right ;

( d) after the expiry of the time specified in the
notice aforesaid, or on receipt of earlier
intimation from the person to whom such D
notice is given that he declines to accept the
shares offered, the Board of directors may
dispose of them in such manner as they think
most beneficial to the company.

E
(IA} Notwithstanding anything contained in sub·section
(I} the further shares aforesaid may be offered to
any persons (whether or not those persons include
the persons referred to in clause (a} of sub-section
(I} ) in any manner whatsoever-
F
(a) if a special resolution to that effect is passed
by the company in general meeting, or
(b) where no such special resolution is passed if
the votes cast ........ .in favour of the proposal
......... exceed the votes, if any, cast against
the proposal ......... and the Central Govern- G
ment is satisfied, on an application made by
the Board of directors in this behalf that the
proposal is most beneficial to the company.

(3) Nothing in this section shall apply -
H
(a) to.a private company.
804 SUPREME COURT REPORTS (1981] 3 S.C.R.

A While interpreting these and allied provisions of the Companies
Act, it would be necessary to have regard to the relevant Articles of
Association of NIIL, especially since Section 81 (l)(c) of that Act,
which is extracted above, is subject to the qualification : "Unless the
articles of the Company otherwise provide". The relevent Articles
are Articles 11, 32, 38 and 50 and they read thus :
B
Article 11 : In order that the Company may be a private
Company within the meaning of the Indian Com-
panies Act, 1913, the following provisions shall
have effect, namely : -

c (i) No invitation shall be issued to the public to
subscribe for any shares, debentures, or
debenture stock of the Company.

(ii) The number of the members of the Company
(Exclusive of persons in the employment of
the Company) shall be limited to fifty, pro-
D vided that for the purposes of this Article
where two or more persons hold one or more
shares in the Company jointly, they shall be
trea.ted as a single member.

(iii) The right to transfer shares of the Company is
E restricted in manaer hereinafter provided.

(iv) If there shall be any inconsistency between the
provisions of this Article and the provisions of
any other Article the provisions of this Article
shall prevail.
F
Article 32 A share may. subject to article 38 be transferred by
a member or other person entitled to transfer to
any member selected by the transferor; but, save
as aforesaid, no share shall be transferred to a
person who is not a member so long as any
member is willing to purchase the same at the
G
fair value. Such value to be ascertained in
manner hereinafter mentioned.

Article 38 The Directors may refuse to register any transfer
of a share (a) where the Company has a lien on
H the share, or (b) in case of shares not fully paid-
up, where it is not proved to their satisfaction
N.I.I.L. v. N.J.N.H.L. (Chandrachud, C,J.) 805

that the proposed transferee is a responsible A
person, or (c) where the Directors are of opin10n
that the proposed transferee (not being already
a member) is not a desirable person to admit to
membership, or (d) where the result of such
registration would be to make the number of
members exceed the above mentioned limit. But 8
clauses (b) and (c) of this Article shall not apply
where the proposed transferee is already a mem-
ber.
.r Article 50 When the Directors decide to increase the capital
of the Company by the issue of new shares such
shares shall be offered to the shareholders in
c
proportion to the existing shares to which they
are entitled. The offer shall be made by notice
specifying the number of shares offered and
limiting a time within which the offer, if not
accepted, will be deemed to be declined and after D
the expiration of such time, or on the receipt of
an intimation from the person to whom the
offer is made that he declines to accept the shares
offered, the Directors may dispose of the same
in such manner as they think most beneficial to
the Company. The Directors may likewise so E
dispose of any new shares which (by reason of the
ratio which the new shares bear to the shares
held by persons entitled to an offer of new
shares) cannot, in the opinion of the Directors,
be conveniently offered under this Article.
F
It is contendended by Shri i·ariman that by reason of the
articles of the Company and on a true interpretation of section 81,
the right of renunciation of the shares offered by NHL was not
available to the Holding Company since NHL was not a full-Jledged
public company in the sense of being incorporated as a public
company but had become a public company under section 43A(l) •
G
and had, under the first proviso to that section, retained its articles
relating to matters specified in section 3(1) (iii). According to
Shri Nariman, section 81(1A) can have no application to a 'section
43A (1) proviso company' (for short, the 'proviso company') because
it contemplates issue of shares to the public and to persons other H
than members of the company, which cannot be done in the case
of a company which falls under the proviso to section 43A(l).
806 SUPREME COURT REPORTS (1981) 3 S.C.R.

A Section 81 (IA), it is urged, is complementary to section 8 l and
since the latter cannot apply to the 'proviso company', the former
too cannot apply to it. In any event, according to counsel, section
81 (I) (c) cannot apply in the instant case since the articles of
NHL provide, by necessary implication at any rate, th~t the
members of company shall have no right to renounce the shares in
B favour of "any"' other person, because such a right would iuclude the
right to renounce in favour of persons who are not members of the
company, and NJIL had retained its articles under which, shares
could not be transferred or renounced in favour of outsiders.

Shri Seervai has refuted these contentions, his main argument
c being that the definitions of 'public company' and 'private company'
are mutually exclusive and, between them,· are exhaustive of all
categories of companies. There .is, according1 to the learned counsel
no third category of companies recognised by the Companies Act,
like the 'proviso company'. Shri Seervai further contends :

(a) The right of renunciation is not a 'transfer' and there-
D
fore the directors' power to refuse to register the
shares under the articles does not extend to renun-
ciation;

(b) .Before considering Section 43A, which was inserted
for theJ first time in the Act of 1956 by the amending
E Act of 1960, it should be noted that Section 81 as
enacted in the Act of 1956 contained three sub-sections
(I),· 2 and 3, and sub-section 3 provided that
"nothing in this section shall apply to a private
company". The opening words of Section 81, as
they now stand, were substituted by the Amending
F Act of 1960, and sub-section (IA) was inserted by the
said Amending Act, and sub-section (3) was sub-
stituted by the Amending Act of 1963. But sub- '
section 3 (a) reproduced sub-section (3) of the Act
of 1956, namely, "nothing in this section shall
apply to a private company". It is clear therefore
Gf
that the rights conferred by Section 81 (I) and (2) do
not apply to a private company, and this provision
in the Act of 1956 was not connected with the inser-
tion of Section 43A for the first time in 1960.
H
(c) 1 he provisos to Section 43A (1), (1 A) and (IB) are
very important in connection with Section 81 of the
N.I.I.L. v. NJ.N.H.L. (Chandrachud, C.J.) 807

Act of 1956. Just as the crucial words in Section A
27(3) are "shall contain", the crucial words in the
provisos are "may include" (or may retain). The
·~.
· words "shall contain" are mandatory and go to
the constitution of a private company. The words
"may include" are permissive and they· do not go to
the constitution of a company which has become a B
public company by virtue of Section 43A because
whether the articles include (or retain) those require-
ments or do not include those requirements, the con-
stitution of the company as a public company remains
unaffected ;
c
(d) No statutory consequence follows, as to the company
being a public company, on the retention of the three
requirements or one or more of them, or in not com-
plying with those requirements. But in the case of
a private company which does not comply with the
requirements of Section 3 (l)(iii) serious consequences D
follow under Section 43, and in tlie case of a private
company altering its articles so as not to include all
the matters referred to in Section 3 (I) (iii) serious
consequences follow under Section 43, and in the case
of a private company altering its articles so as not to
include all the matters referred to in Section 3 (1) (iii) E
serious consequences follow under Section 44. In
short, the inclusion, or retention, of all the matters
referred .to in Section 3(1) (iii) has a radically different
part of function in a private company. which becomes
a public company by virtue of Section 43A from that
which it has in a private company. More particularly F
the non-compliance with the three requirements of
Section 3 (!)(iii). included, or retained, in the
articles of a private company which has become a
public company by virtue of Section 43A, involves no
statutory consequences or disabilities, since such a
company is a public company and Section 43 is not G
attracted.

(e) It is wrong to contend that the whole of Section 81(1)
does not apply to a 'proviso company' because it is
H
a private company entitled. to the protection of sub-
section 3 (a). Section 81(3) (a) applies to a private
808 SUPREME COURT REPORTS [1981] 3 S.C.R.

A company ; a 'proviso company' is one which has
become, and continues to remain, a public company ;

(f} Section 81 (I) (c) applies to all companies other than
private companies. The articles of a public company
may include all of the matters referred to in Section
B 3 (I) (iii), or may include one or two of the matters re-
ferred to therein without ceasing to be a public com-
pany. A public company which has become such by
virtue of Section 43A can delete all the matters referred
to in Section 3 (I) (iii) or may delete one or two of
them or may include (or retains) all the three matters
c referred to in Section 3 (1) (iii). The retention of the
three matters mentioned in Section 3(1) (iii) does not
in any way affect the constitution of the company
because it has become and continues to be a public
company;

(g) Section 81 when enacted in 1956 consisted of 3 sub-
D
sections. The need to exempt private companies arose
from Section 81 (c), for the right to renounce in favour
of any person might, (not must), conflict with the
limitation on the number of members to 50 and since
that was one of the matters which went to the con-
stitution of a company as a private company, private
E
companies were expressly exempted. No such exemp-
tion was necessary in the case of a 'proviso company'
which retains in its articles all the three matters referred
to in Section 3(1) (iii), because an increase in the
number of its members above 50 will not affect the
constitution of the company which remains that of a
F
public company ;

(h) Section 81 as enacted in 1956 did not contain sub-
section (IA) which was. inserted for the first time by
the Amending Act of 1960, which Amending Act
also i~serted Section 43A. After the insertion of sub-
G section (I A) the effect of the exemption of private
companies from the operation of section 81 became
even more necessary for the provisions of sub-section
(IA) (a) and (b) override the whole of Section 81 (!)
and shares need not be offered to existing shareholders.
H
Section 81 (IA) also overrides Article 50 of NIIL ;
I N.1.1.L. v. N.l.N.H.L. (Chandrachud C.J.) 809

(i) The Articles of NIIL provide for the transfer of shares, A
and Article 38 sets out the circumstances under which
the directors may refuse to transfer the shares.
However, since renunciation of shares is not a transfer,
the restriction in Article 11 (iii) is not violated by an
existing member of NHL renouncing his share in
favour of any other person ; B

U) The opening words of Sections 81 (1) (c) are "unless
the articles of the company otherwise provide". Section
81 (1) (c) contains no reference to "expressly provide"
or "expressly or by necessary implication provide".
According to the plain meaning of the words "other-
c
wise provide'', there must be a provision in the
Articles which says that the offer of shares to existing
members does not entitle them to renounce the shares in
favour of any person. Article 11 of NIIL merely states
the matters necessary to constitute a company a private
company. Such companies are exempt from Section
D
81-and so, the questions of its 'otherwise providing'
does not arise. Article 50 refers to the rights shares
but it makes no other provision with regard to the right
of renunciation than is made in Section 81(l)(c).
Unless such other provision is made, the opening words
of Section 81 (I)(c) are not attracted. Secondly, Section
E
8l(J)(c) provides that unless the articles otherwise
provide "the offer aforesaid shall be deemed to include
a right exercisable by the person concerned to renounce
the shares offered to him or any of them in favour
of any person". The right conferred by the deeming
clause can be taken away only by making a provision
F
in the Articles to prevent the deeming provision from -
taking effect. The deeming provision cannot be avoided
by implications ; and

(k) The Holding Company could have renounced the rights
G
shares offered to it at least in favour of the Manoharan
*group and the fact that after the shares were allotted,
the Manoharans stated that they were not interested in
subscribing to the shares offered does not affect the
question of the legal right. Besides, it was one thing to H
refuse to subscribe to the shares offered; it was another
thing to accept the renunciation of merely 6, 190 shares
810 SUPREME COURT REPORTS [1981] 3 S.C.R.
A
which would have given the Manoharans a substanial
stake in the affairs of the company.

Shri Seervai relies upon many a text and authority in support
of the proposition that the classification of companies into private
and public is mutually exclusive and collectively exhaustive.
B He relies upon a decision in Park v. Roya1ty Syndicates(1) in which
Hamilton J. (later Lord Sumner) observed that a public company
is simply one which is not a private company and that there is
no "intermediate state or tertium quid". In support of the propo-
sition that the right to 'renunciation of shares is not a transfer,
counsel relies upon a decision in Re Pool Shipping Co. Ltd.(').
c Reliance is also placed in this behalf on the statement of law in
Halsbury (Vol. 7, 4th edition, p. 218), Palmer's Company Law Vol.I,
22nd edition p. 393), Palmer's Company Precedents (Part l, 17th
edition, p. 688), Gore-Brown on Companies (43rd edition, para
16.3) and Buckley on Companies Act (13th edition, p. 815). While
indicating his own reasons as to why the legislature enacted identical
D provisos to sub-sections (1),(1 A) and (IB) of section 43A, counsel
mentioned that no light is thrown for enacting these provisos, either
by the Shastri Committee Report which led to the Companies
(Amendment) Act, 1960 or by the Notes on clauses, or by the Report
of the Joint Select Committee. In regard to the opening words of
section 81 (l )(c) ; "Unless the articles of the company otherwise
E provide", counsel cited the Collins English Dictionary, the Random
House Dictionary and the Oxford English Dictionary. An interest-
ing instance of the use of the word "provide' is to be found in the
Random House Dictionary, 1967, p. 1157, to this effect: "The
Mayor's wife of the city provided in her will that she would be
hurried without any pomp or noise".
F
It shall have been noticed that the entire superstructure of Shri
Seervai's argument rests on the foundation that the definitions of
'public company' and 'private company' are mutually exclusive and
collectively exhaustive of all categories of companies, that is to say,
that there is no third kind of company recognised by the Companies
G Act, 1956. The argument merits close examinations since it finds sup-
port, to an appreciable extent, from the very text of the Companies
Act. The definition of 'private company' and the manner in which a
'public company' is defined ("public company means a company
which is not a private company") bear out the argument that these
H
(1) [1912] I K.B. 330.
(2) [1920] 1 Ch. 251.
N.J.l.L. v. N.I.N.H.L. (Chandrachud, C.J.) 811

two categories of companies are mutually exclusive. If it is this it A
cannot be that and if it is that it cannot be this. But, it is not true
to say that between them, they exhaust the universe of companies.
A private company which has become a public company by reasoµ
of section 43A, may include, that is to say, may continue to retain in
its articles, matters which are specified in section 3 (I )(ii), and the
number of its members may at any time be reduced below 7. This B
provision itself highlights the basic distinction between, on one hand,
a company which is incorporated as a public company or a private
company which is converted into a public company under section 44,
and on the other hand, a private company which has become a
public company by reason M the operation of section 43A. c
In the first place, a section-43A company may include in its
articles, as part of its structure, provisions relating to restrictions on
transfer of shares, limiting the number of its members to 50, and
prohibiting an invitation to the public to subscribe for shares, which
are typical characteristics of a private company. A public company
cannot possibly do so because, by the very definition, it is that which D
is not a private company, that is to say, which is not a company
which by its articles contains the restrictions mentioned in section 3
(!)(iii). Therefore, the expression 'public company' in section 3(1)
(iv) cannot be equated with a 'private company which has become a
public company by virtue of section 43A'.

Secondly, the number of members of a public company cannot E
fall below 7 without attracting the serious consequences provided
for by section 45 (personal liability of members for the company's
debts) and section 433(d) (winding up in case the number of its
·~-
members falls below 7). A section 43A company can still maintain
its separate corporate identity qua debts even if the number of its
members is reduced below seven and is not· liable to be wound up F
for that reason.

Thirdly, a section 43A, company can never be incorporated
and registered as such under the Companies Act. It is registered
"( as a private company and becomes, by operation of law, a public
company. G
Fourthly, the three contingencies in which a private company
becomes a public company by virtue of section 43A (mentioned in
sub-sections (1), (IA) and (IB) read with the provisions of sub-
section ( 4) of the section) show that it becomes and continues to be H
a public company so long as the conditions in sub-sections (1), (IA)
or (IB) are applicable. The provisos to each of these sub-sections
812 SUPREME COURT REPORTS (198 !J 3 S.C.R.

A clarify the legislative intent that companies may retain their
registered corporate shell of a private company but will be subjected
to the discipline of public companies. When the necessary condi-
tions do not obtain, the legislative device in section 43A is to
permit them to go back into their corporate shell and function once
again as private companies, with all the privileges and exemptions
B applicable to private companies. The proviso to each of the sub-
sections of section 43A clearly indicates that although the private
company has become a public company by virtue of that section,
it is permitted to retain the structural characteristics of its origin,
its birth marks, so to say. Any provision of the Companies Act
which would endanger the corporate shell• of a 'proviso company'
.
1-
c cannot be applied to it because, that would constitute an infraction
of one or more of the characteristics of the 'proviso company' which
are statutorily allowed to be preserved and retained under each
of the three provisos to the three sub-sections of section 43A. A
right of renunciation in favour of any other person, as a statutory
term of an offer of rights shares, would be repugnant to the integrity
D of the Company and the continued retention by it of the basic
characteristics under section 3(J)(iii).

Fifthly, section 4.3A, when introduced by Act 65 of 1960, did
not adopt the language either of section 43 or of section 44.
Under section 43 where default is made in complying with the
E provisions of section 3(1)(iii), a private company "shall cease to
be entitled to the privileges and exemptions conferred on private
companies by or under this Act, and this Act shall apply to the
company as if it were not a private company". Under section 44
of the Act, where a private company alters its Articles in such a
manner that they no longer include the provisions which under,
F section 3(l)(iii) are required to be included in the Articles in order
to constitute it a private company, the company "shall as on the
date of the alteration cease to be a private company". Neither of the
expressions, namely, "This Act shall apply to the company as if it
were not a private company" (section 43) or that the company
"shall ... cease to be a private company (section 44) is used in
G section 43A. If a section 43A company were to be equated in aU
respects with a public company, that is a company which does not
have the characteristics of private company, Parliament would have
used language similar to the one in section 43 or section 44, between
which two sections, section 43A was inserted. If the intention was
H that the rest of the Act was to apply to a section 43A company "as
if it were not a private company" nothing would have been easier
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 813

than to adopt that language in section 43A, and if the intention was A
that a section 43A company would for all purposes "cease to be a
private company", nothing would have been easier than to adopt
tlhat language in section 43A.

Sixthly, the fact that a private company which becomes a
public company by virtue of section 43A does not cease to be B
for all purposes a "private company" becomes clear when one com-
pares and contrasts the provisions of section 43A with section 44 :
when the Articles of a private company no longer include matters
.
·-1
under section 3(1)(iii), such a company shall as on the date of the
alteration cease to be a private company (section 44(i)(a)). It has
then to file with the Registrar a prospectus or a statement in lieu c
of prospectus under section 44(2). A private company which
becomes a public company by virtue of section 43A is not required
Ito file a prospectus or a statement in lieu of a prospectus.

These considerations show that, after the Amending Act 65 of
1960, three distinct types of companies occupy a distinct place in D
the scheme of our Companies Act : (I) private companies (2) public
companies and (3) private companies which have become public
companies by virtue of section 43A, but which continue to include or
retain the three characteristics of a private company. Sections I 74 and
252 of the Companies Act which deal respectively with quorum for
meetings and minimum number of directors, recognise expressly, by E
their paranthetical clauses, the separate existence of public com-
panies which have become such by virtue of section 43A. .we may
also mention that while making an amendment in sub-clause (ix) of
Rule 2 of the Companies (Acceptance of Deposits) Rules, 1975,
the Amendment Rules, 1978 added the expression : "Any amount
received...... by a private company which has become a public F
company under section 43A of the Act and continues to include in
its Articles of Association provisions relating to the matteni specified
in clause (iii) of sub-section (I) of section 3 of the Act", in order to
bring deposits received by such companies within the Rules.
G
The various points discussed above will facilitate a clearer
perception of the position that under the Companies Act, there arc
three kinds of companies whose rights and obligations fall for con-
sideration, namely, private companies, public companies and com-
panies which have become public companies under section 43(1)
H
but which retain, under the first proviso to that section, the three
characteristics of private companies mentioned in section 3(1)(iii)
814 SUPREME COURT REPORTS (1981] 3 S.C.R.

A of the Act, private companies enjoy certain exemptions and privileges
which are peculiar to their constitution and nature. Public com-
panies are subjected severely to the discipline of the Act. Companies
of the third kind like NIIL, which become public companies but
which continue to include in their articles the three matters mention-
ed in clauses (a) to (c) of section 3(1)(iii) are also, broadly and
B generally, subjected to the rigorous discipline of the Act. They
cannot claim the privileges and exemptions to which private com-
panies which are outside section 43A are entitled. And yet, there
are certain provisions of the Act which would apply to public
companies but not to section 43A companies. Is section 81 of the
Companies Act one such provision ? and if so, does the whole of
.
T-

c it not apply to a section 43A company or only some particular part
of it ? These are the questions which we have now to consider.

On these two questions, both the learned counsel have taken
up extreme positions which, if accepted, may create confusion
and avoidable inconvenience in the administration of section
43A companies like NHL. Shri Nariman contends that a section
D 43A company becomes a public company qua the outside world,
as e.g. in matters of remuneration of directors, disclosure,
commencement of business, information to be supplied but it
remains a private company qua its own shareholders. Therefore,
says counsel, no provision of the Companies Act can apply
to such companies, which. is inconsistent with or destructive
of the retention of the three essential features of private companies
as mentioned in section 3(1) (iii). Section 81, it is said, is one such
provision and in so far as private companies go, it can apply only
to (a) such companies which become public companies under section
43A but which do not retain the three essential features and to
(b) private companies which are duly converted into public com-
F panies. It is urged that even assuming that the expression "private
company" occuring in the various provisions of the Companies Act
(including section 81 (3)(a)) does not include a section 43A proviso
Company, that does mean that section 81 would be applicable to a
43A Proviso Company, because~ (a) The proviso to section 43A(I)
G and section 81 are both substantive provisions and neither is subordi-
nate to the other ; in fact section 43A was introduced later in 1960 ;
and (b) An offer of rights shares to a member in a section 43A pro-
viso company cannot include a right to renounce the shares in favour
of any other person, because such a right would be inconsistent with
H the article of the company limiting the number of its members to 50
and with the article prohibiting invitation to the public to subscribe
for shares in the company. The fact that the statute overrides the
N.I.l.L. v. N.1.N:H.L. (Chandrachud, C.J.} 815

articles is not a sufficient ground for re~dering the provisions of A
S(:ction 81 applicable to a section 43A(l) proviso company since the~
right to continue to include provisions in its articles. specified in
section 3(l)(iii) is itself a statutory right. Counsel says that in these
circumstances-and this iil without taking the assistance of the -
words "unless the articles of the comyany otherwise provide" in
section 8l(l)(c)-the provision regarding the right of renunciation B
cannot apply to section 43A proviso company.

The answer of Shri Seervai to this contention flows from what
truly is the sheet anchor of his argument, namely, that the definitions
of 'public company' and 'private company' are mutually exclusive
and between them, they are exhaustive of all categorie of companies. c
Counsel contends that section 81 (IA) overrides section 81(1) ; that by
reason of sub-section (3) of section 81, section 81 is not applicable
to a "private company" but NHL is not a "private company ' since
it became a public company by virtue of section 43A ; and that,
therefore, the offer of rights shares made by NHL can be renounced
by the offerees in favour of any other person. D

Neither of the two extreme positions for which the counsel
c:ontend commends itself to us. The acceptance of Shri Nariman's
argument involves tinkering with clause (a) of section 81 (3), which
shall have to be read as saying that "Nothing in section 81 shall
apply to a 'private company' and to a company which becomes a
public company by virtue of section 43A and whose Articles of
Association include provisions relating to the matters specified in
dause (iii) of sub-section (1) of section 3". Section 81(1) does not
contain a non obstante clause. But, if Shri Nariman is right, there
would be no alternative save to exclude the applicability of all of its
provisions to a company like NHL, by reading into it an overriding F
provision which alone can achieve such result. On the other hand,
to accept wholesale the argument of Shri Seervai would render the
first proviso to section 43A(l) nugatory. The right to retain in the
Articles the provision regarding the restriction on the right to
transfer shares, the limitation on the number of members to fi(ty and
1the prohibition of any invitation to the public to subscribe for the G
shares or debentures of the Company will then be washed off. The
truth seems to us to lie in between the extreme stands of the learned
,counsel for the two sides.

There is no difficulty in giving full effect to clauses (a) and
H
(b) of section 81 (!) in the case of a company like NHL, even after it
816 SUPREME COURT REPORTS (1981] 3 S.C.R.

A becomes a public company under section 43A. Clause (a) requires
that further shares must be offered to the holders of equity shares of
the Company in proporation, as nearly as circumstances admit, to the
capital paid up on those shares, while clause (b) requires that the
offer of further shares must be made by a notice specifying the
number of shares offered and limiting the time, not being less than
8 fifteen days from the date of the offer, within which the offer, if not
accepted, will be deemed to have been declined. The real difficulty
arises when one reaches clause (c) according to which, the offer shall
be deemed to include the right of renunciation of shares or any of
them in favour of any other person. We will keep aside for the time
being the opening words of clause (c) : "unless the articles of the
c company otherwise provide". Clause (c) further requires that the
notice referred to in clause (b) must contain a statement as to the
right of renunciation provided for by clause (c). Having given to the
matter our most anxious consideration, we are of the opinion that
clause (c) of section 81 (I) cannot apply to the earthwhile private
companies which have become public companies under section 43A
D and which include, that is to say which retain or continue to include,
in their articles of association the matters specified in section 3(1 )(iii)
of the Act, as specified in the first proviso to section 43A. If clause
(c) were to apply to the section 43A-proviso companies, it would be
open to the offerees to renounce the shares offered to them in favour
of any other person or persons. That may result directly in the infringe-
E ment of the article relating to the matter specified in section 3(l)(iii)
(b) because, under clause (c) of section 81(1), the offeree is entitled
to spilt the offer and renounce the shares in favour of as many persons
as he chooses, depending partly on the number of shares offered by
the company to him. The right to renounce the shares in favour of any
other person is also bound to result in the infringement of the article
F relating to the matter specified in section 3(l)(iii)(c), because an
offer which gives to the offeree the right to renounce the shares in
favour of a non-member is, in truth and substance, an invitation to
the public to subscribe for the shares in the company. As stated in
Palmer's Company Law (22nd Ed., Vol. I, para 21-18):

G "Where the Company issues renounceable letters of
allotment the circle of original allottees can easily be broken
·by renunciation of those rights and complete strangers may
become the allottees ; here the offer will normally be held
to be made to the public."
H There is statement to the same effect in Gower's Company Law 4th
Ed., page 351) :
N.1.1.L. v. N.l.N.H.L. (Chandrachud, C.J.) 817

"It is therefore clear that an invitation by or on behalf A
of a private company to a few of the promoter's friends and
relations will not be deemed to be an offer to the public.
Nor, generally, will an offer which can only be accepted by
the shareholder of a particular company. On the other hand
it is equally clear that an offer of securities in a public com-
pany even to a handful people may be an offer to the public B
if it is calculated (which presumably means "Likely" rather
than "intended") to lead to the securities being subscribed
(i.e. applied for on original allotment) or purchased (i.e.
bought after. original allotment) by persons other than those
receiving the initial offer. In particular, if securities to be
issued under renounceable allotment letter or letter of right c
the invitation to take them up must be deemed to be made
to the public, since these securities are obviously liable to be
subscribed or purchased by others."

The learned author says at page 430 that in the case of a private
placing-an issue by a private company-allotment letters will D
probably be dispensed with, "in any case they cannot be freely
r•~nounceable". In foot-note (22) the author points out that the real
danger is that if renounceable allotment letters are issued, the
company may be regarded as having made an offer to the public.
We cannot construe the provision contained in clause (c) in a manner
which will lead to the negation of the option exercised by the E
company to retain in its articles the matters referred to in section 3
(!)(iii). Both these are statutory provisions and they are contained
in the same statute. We must harmonise them, unless the words of
the statute are so plain and unambiguous and the policy of the statute
so clear that to harmonise will be doing violence to those words and
to that policy. Words of the statute, we have dealt with. Its policy, if F
anything, points in the direction that the integrity and structure of
the section 43A provisio companies should, as far as possible, not be
broken up.

The exemption in favour of private companies would appear to
have been inserted in section 81 (3)(a) because of the right of G
renunciation conferred by section 81(I)(c). Section IOSC of the
Companies Act 1973 which contained substantially all the provisions
that are to be found in section 81(1)(a), (b) and (d) applied to all
companies. The right of renunciation in favour of any other person
was conferred for the first time by the Act of 1956. That led to the H
insertion of the exception in favour of private companies since, a
right of renunication in favour of other persons is wholly inconsistent
818 SUPREME COURT REPORTS [1981) 3 S.C.R.
A with the structure of a private company, which has to contain the
three characteristics mentioned in section 3(l)(iii). When section
43A was introduced by Act 65 of 1960, the legislature apparently
overlooked the need to exempt companies falling under it, read with
its first proviso, from the operation of clause (c) of section 81(1)._
That the legislature has overlooked such a need in regard to other
B
matters, in respect of which there can be no controversy, is clear
from the provisions of sections 45, and 433 (d) of the Companies
Act. Under section 45, if at any time the number of members of a
company is reduced, in the case of a public Company below seven,
or in the case of a Private Company below two, every member of
)
.
c the company becomes severally liable, under the stated circumstances,
for the payment of the whole debt of the company and can be
severally sued therefor. No exception h~.s yet been provided for in
section 45 in favour of the section 43A-proviso companies, with the
result that a private company having, say, three members which be-
comes a public company under section 43A and continues to function
with the same number of members, will attract the rigour of section
D
45. Similary, under section 433(d), such a company would automati-
cally incur the liability of being wound up for the same reason. If and
when these provisions fall for consideration, due regard may have to
be given to the principle of harmonious construction, in order to
exclude section 43A proviso companies from the application of those
provisions. We hope that before such and occasion arises, the Legisla-
E
ture will make appropriate amendments in the relevant provisions of
the Companies Act. Such amendments have been made in sections
174(1), clause (iii) of the second proviso to sub-section (!) of section
220, and section 252(1) in order to accord separate treatment to

F
private companies which become public companies by virtue of
section 43A, as distinguished from public companies of the general
kind.
--
In coming to the conclusion that clause (c) of section 81 {I)
cannot apply to section 43A-proviso companies, we have not taken
into consideration the impact of the opening words of clause (c) :
G "Unless the articles of the company otherwise provide". The effect
of these words is to subordinate the provisions of clause (c) to the
provisions of the articles of association of the company. In other
words, the provisions that the offer of further shares shall be deemed
to include the right of renunciation in favour of any other person will
H not apply if the articles of the company "otherwise provide".
Similarly the requirement that the notice of offer must contain a
statement of the right of renunciation will not apply if the articles of
N.I.I.L. v. N.l.N.H.L. (Chandrachud, C.J.) 819 A

the company otherwise provide. The question which we have to
consider under this head is whether the articles of association of
NIIL provide otherwise than what is provided by clause (c) of section
81(1). We have already extracted the relevant articles, namely,
articles 11, 32, 38 and 50. To recapitulate, article 11, which has
an important bearing on the subject now under discussion, provides
that in order that the company may be a private company, B
(i) no invitation shall be issued to the public to subscribe for any
shares, debentures, etc; (ii) the number of members of the company
shall be limited to 50; and (iii) the right to transfer shares of the
.( company will be restricted in the manner provided in the articles .
By article 32, a share may be transferred, subject to article 38, by a
member to any member selected by the transferor but no share shall c
oltherwise be transferred to a person who is not a member so long as
any member is willing to purchase the same at a fair value. Article 38
confers upon the directors the power to refuse to register the transfer
of a share for four reasons, the last of which is that the transfer
will make the number of members exceed the limit of 50. Article
50, which also, is important, provides that the offer of new shares D
shall be made by a notice specifying the number of shares offered and
limiting the time within which the offer, if not accepted, will be deem-
ed to have been declined. If the offer is declined or is not accepted,
before the expiration of the time fixed for its acceptance, the directors
have power to dispose of the shares in such manner as they think
most beneficial to the company. E
---.o
It is urged by Shri Seervai that none of the articles of the
company provides otherwise than what is provided in clause -(c)
of section 81(1) and therefore, clause (c) must have its full
play in the case of NHL. On the other hand, it is contended by
Shri Nariman that the opening words, of clause (c) do not require or
F
postulate that the articles of the company must contain an "express"
provision, contrary to what is contained in clause (c). The contention,
in other words, is that if the articles of a company contain a provi-
sion which, by necessary implication, is otherwise than what is
provided in clause (c); that clause can have no application. In view
of our finding that keeping aside the opening words of clause (c), the
G
provisions of that clause cannot apply to section 43A- proviso
companies, it is academic to consider whether the word "provide"
in the opening part of clause (c) postulates an express provision on
the subject of renunciation or whether it is sufficient compliance
ff
with the opening words, if the articles contain by necessary impli-
cation a provision which is otherwise than what is provided in clause
820 SUPREME COURT REPORTS (1981] 3 S.C.R.

A (c). We would, however, like to express our considered conclusion on
this point since the point has been argued fully by both the counsel
and needs to be examined, as it is likely to arise in other cases.

In the first place, while construing the opening words of section
81 (l)(c), it has to be remembered that .section 43A companies are
B entitled under the proviso to that section to include provisions in their
Articles relating to matters specified in section 3(l)(iii). The right of
renunciation in favour of any other person is wholly inconsistent with
the Articles of a private company. If a private company becomes a
public company by virtue of section 43A and retains or continues to
include in its Articles matters referred to in section 3(1 )(iii), it is
c difficult to say that the Articles do not provide something which is
otherwise than what is provided in clause (c). The right of renun-
ciation in favour of any other person is of the essence of clause (c).
On the other hand, the absence of that right is of the essence of the
structure of a private company. It must follow, that in all cases in
which erstwhile private companies become public companies by
D virtue of section 43A and retain their old Articles, there would of
necessity be a provision in their Articles which is otherwise than
what is contained in clause (c). Considered from this point of view,
argument as to whether the word "provide" in the opening words of
clause (c) means "provide expressly" loses its significance.

On the question whether the word "provide" means "provide
E expressly", we are unable to accept Shri Seervai's submission that the
Articles must contain a provision which is expressly otherwise than
what is provided in clause (c). In the context in which a private
company becomes a public company under:section 43A and by reason
of the option available to it under the proviso, the word "provide"
must be understood to mean "provide expressly or by necessary
F implication". The necessary implication of a provision has the same
effect and relevance in law as an express provision has, unless the
relevance of what is necessarily implied is excluded by the use of
clear words. Considering the matter from all reasonable points of
view, particularly the genesis of section 43A-proviso companies,
we are of the opinion that in order to attract the opening words of
G clause (c) of section 81 (!), it is not necessary that the Articles of
the Company must contain an express provision otherwise than
what is contained in clause (c).
We do not think it necessary to consider the decision of the
H Privy Council in Shanmugam v. Commissioner for Registration(1),

(I) [1962) A.C. 515.
N.1.1.L. v. N.I.N.H.L. (Chandrachud, C.J.) 821

cited by Shri Nariman, which says that to be an "express provision" A
with regard to something it is not necessary that the thing should
be specially mentioned; it is sufficient that it is directly covered by
the language, however broad the language may [be which covers it,
so long as the applicability arises directly from the language used
and not by inference therefrom. We may only mention that
though Articles of NIIL do not contain an express provision that B
there shall be no right of renunciation, the right is wholly incon-
sistent with the Articles. We have already stated above that the
right of renunciation is tantamount to an invitation to the public to
subscribe for the shares in the company and can violate the provision
in regard to the limitation on the number of members. Article 11,
by reason of its clause (iv), prevails over the provisions of all other c
Articles if there is inconsistency between it and any other Article.

For these reasons we are of the opinion that clause (c) of
section 81 (!) of the Companies Act, apart from the consideration
arising out of the opening words of that clause, can have no appli-
cation to private companies which have become public companies D
by virtue of section 43A and which retain in their Articles the· three
matters referred to in section 3(1 )(iii) of the Act. In so for as the ope-
ning words of clause(c) are concerned, we are of the opinion that they
do not require an express provision in the Articles of the Company
which is otherwise than what is provided for in clause (c). It is
enough, in order to comply with the opening words of clause (c), E
that the Articles of the CompaRy contain by necessary implication
a provision which is otherwise than what is provided in clause (c).
Articles 11 and 50 of NIIL's Articles of Association negate the
right of renunciation.

F
The question immediately arises, which is of great practical
importance in this case, as to whether members of a section 43A-
proviso company have a limited right of renunciation, under which
they can renounce the shares offered to them in favour of any other
member or members of the company. Consistently with the view
which we have taken of clause (c) of section 81(1) our answer to G
this question has to be in the negative. The right to renounce shares
in favour of any other person, which is conferred by clause (c) has
no application to a company like NHL and therefore, its members
cannot claim the right to renounce shares offered to them in favour
of any other member or menibers. The Articles of a company may H
well provide for a right of transfer of shares by one member to
another, but that right is very much different from the right of
822 SUPREME COURT REPORTS (1981] 3 S.C.R.

A renunciation, properly so called. In fact, learned counsel for the
Holding Company has cited the decision in Re Pool Shipping Co.
Ltd., (supra) in which it was held that the right of renunciation is
not the same as the right of transfer of shares.

Coming to sub-section (IA) of section 81, it provides, stated
B briefly, that notwithstanding anything contained in sub-section (1),
the further shares may be offered to any persons in any manner
whatsoever, whether or not those persons include a person referred
to in clause (a) of sub-section (1). ·That can be done under clause
(a) of sub-section (I A) by passing a special resolution in the General
Meeting of the company or under clause (b), where no such special
.
.....
c resolution is passed, if the votes cast in favour of the proposal
exceed the votes cast against it and the Central Government is
satisfied that the proposal is most beneficial to the company. For
reasons similar to those which we have come to the conclusion that
clause (c) of section 81 cannot apply to a section 43A-proviso com-
pany, we must hold that sub-section (IA) can,also have no applica-
D tion to such companies. To permit the further shares to be offered to
the persons who are not members of the company will be clearly
contrary to the Articles of Association of a section 43A-proviso
company, in regard to the three matters which bear on the structure
of such companies. At the highest, the method provided for in
clauses (a) and (b) of sub-section (IA) may be resorted to by a
E section 43A-proviso company for the limited purpose of offering
the new shares to its members otherwise than in proportion to the
capital paid up on the equity shares of the company. That course
may be open for the reason that sub-section (IA) permits the further
shares to be offered "in any nianner whatsoever". A change in the
pro rata method of offer of new shares is not necessarily violative of
F the basic characteristics of a private · company which becomes a
public company by virtue of section 43A. To this limited extent
only, but not beyond it, the provisions of sub-section (IA) of section
81 can apply to such companies.

The following proposition emerge out of the discussion of
G the provisions of FERA, sections 43A and 81 of the Companies Act
and of the articles of association of NIIL :

(1) The Holding Company had to part with 20% out of
the 60% equity capital held by it in NIIL ;
H
(2) The offer of Rights Shares made to the Holding Com-
pany as a result of the decision taken by Board of
N.1.1.L. v. N.I.N.H.L. (Chandrachud, C.J.) 823

Directors in their meeting of April 6, 1977 could not A
have been accepted by the Holding Company ;

(3) The Holding Company had no right to renounce the
Right Shares offered to it in favour of any other
person, member or non-member ; and
B
(4) Since the offer of Rights Shares could not have been
either accepted or renounced by the Holding Company,
the former for one reason and the latter for another,
the shares offered to it could, under article 50 of the
articles of association, be disposed of by the directors,
consistently with the articles of NIIL, particularly
article 11, in such manner as they thought most bene-
c
ficial to the Company.

These proposition afford a complete answer to Shri Seervai's con-
tention that what truly constitutes oppression of the Holding
Company is not the issue of Rights Shares to the existing Indian D
shareholders only but the offer of Rights Shares to all existing share-
holders and the issue thereof to existing Indian shareholders only.

The meeting of 2nd May, 1977 was unquestionably illegal for
reasons already stated. It must follow that the decision taken by
the Board of Directors in that meeting could not, in the normal
E
circumstances, create mutual rights and obligations between the
parties. But we will not treat that decision as non-est because a
point of preponderating importance is that the issue of Rights
Shares to existing Indian shareholders only and the non-allotment
thereof to the Holding Company did not cause any injury to the
proprietary rights of the Holding Company as shareholders, for the F
simple reason that they could not have possibly accepted the offer of
rights shares because of the provisions of FERA and the conditions
imposed by the Reserve Bank in its letter dated May 11, 1976, nor
indeed could they have renounced the shares offered to them in
favour of any other person at all because section 8I(l)(c) has no
application to companies like NHL which were once private com· G
panies but which become public companies by virtue of section 431\
and retain in their articles the three matters referred to in section
3(1 )(iii) of the Act

It was neither fair nor proper on the part of NIIL's officers not H
to ensure the timely posting of the notice of the meeting for 2nd
May so as to enable Sanders to attend that meeting. But there the
824 SUPREME COURT REPORTS [1981] 3 S.C.R.

A matter rests. Even if Sanders were to attend the meeting, he could
not have asked either that the Holding Company should be allotted
the rights shares or alternatively, that it should be allowed to
"renounce" the shares in favour of any other person, including the
Manoharan group._ The charge of oppression arising out of the
central accusation of non-allotment of the rights shares to the
Holding Company must, therefore, fail.
B
We must mention that we have rejected the charge of oppres-
sion after applying to the conduct of Devagnanam and his group
the standard of probity and fairplay which is expected of partners in
a business venture. And this we have done without being influenced
by the consideration pressed upon us by Shri Nariman that Coats
c and NEWEY, who were two of the three main partners, were not
of one mind and that NEWEY never complained of oppression: They
may or they may not. That is beside the point. Such technicalities
cannot be permitted to defeat the exercise of the equitable juris-
diction conferred by section 397 of the Companies Act. Shri Seervai
drew our attention to the decision in Blissett v. Daniel (supra) the
D facts of which as they appear at pp 1036-37, bear, according to
him, great resemblance to the facts before us. The following observa- -
tions in that case are of striking relevance ;

"As has been well observed during the course of the
argument, the view taken by this Court with regard to
E morality of conduct amongst all parties-most especially
amongst those who are bound by the ties of pattnership-
is one of the highest degree. The standard by which
parties are tried here, either as trustees or as co-partners, or
in various other relations which may be suggested,
is a standard, I am thankful to say so, far higher than the
F standard of the world ; and, tried by the standard, I hold it
to be impossible to sanction the removal of this gentleman
under these circmstances". (p 1040)

Not only is the Jaw on the side of Devagnanam but his conduct can-
G not be characterised as lacking in probity, considering the extremely
rigid attitude adopted by Coats, They drove him into a tight corner
from which the only escape was to allow the law to have its full play.

Even though the company petition fails and the appeals succeed
on the finding that the Holding Company has failed to make out a
H case of oppression, the court is not powerless to do substantial justice
between the parties and place them, as nearly as it may, in the same
N.J.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 825

position in which they would have been, if the meeting of 2nd May A
were held in accordance with Jaw. The notice of the meeting was re-
cdved by Sanders in U.K. on the 2nd May when everything was over,
bar the post-meeting recriminations which eventually led to this expen-
sive litigation. If the notice of the meeting had reached the Holding
Company in time, it is reasonable to suppose that they would have
attended the meeting, since one of the items on the Agenda was B
'"Policy-(a) Indianisation, (b) allotment of shares". Devagnanam
and his group were always ready and willing to buy the excess shares
of the Holding Company at a fair price as clear from the correspon-
dence to which our attention has been drawn. Jn the affidavit dated
May 25, 1977, Devagnanam stated categorically that the Indian
shareholders were always ready and willing to purchase one-third of c
the shareholding of the non-resident shareholders, at a price to be
fixed in accordance with the articles of Association by the Reserver
Bank of Jndia. On May 27, he sent a cable, though 'without preju-
dice', offering to pay premium if the Holding Company were to adopt
disinvestment as a method of dilution of their interest. In the Trial
Court, counsel for the Indian shareholders to whom the rights shares D
were allotted offered to pay premium on the 16,000 rights shares.
The cable and the offer were mentioned before us by Shri Nariman
and were not disputed by Shri Seervai. There is no reason why we
should not call upon the Indian shareholders to do what they were
always willing to do, namely, to pay to the Holding Company a fair·
premium on the shares which were offered to it, which it could E
neither take nor renounce and which were taken up by the Indian
shareholders in the enforced absence of the Holding Company.
The willingness of the Indian shareholders to pay a premium on the
e:xcess holding or the rights shares is a factor which, to some extent,
has gone in their favour on the question of oppression. Having had
-~--.
the benefit of that stance, they must now make it good. Besides, it F
is only meet and just that the Indian shareholders, who took the
rights shares at par when the value of those shares was much above
par, should be asked to pay the difference in order to nullify unjust
unjustifiable enrichment at the cost of the Holding Company. We
must make it clear that we are not asking the Indian shareholders to
pay the premium as a price of oppression. We have rejected the plea G
of oppression and the course whieh we are now adopting is intended
primarily to set right the course of justice, in so far as we may.

The question then is as to what should be takent to be the H
reasonable value of the shares which were offered to the Holding
Company but taken over by the bulk of the Indian shareholders. In
826 SUPREME COURT REPORTS [1981) 3 S.C.R.

A his letter dated December 17, 1975 to M.M.C. Newey, D.P. Kingsley,
the Secretary of NHL, had assessed the value of NHL's shares at
Rs. 175 per share. That value was arrived at by averaging the
break-up value, the yield and the average market price in the case
of quoted shares. Citing a paragraph from a book on the Foreign
Exchange Regulation Act, Kingsley says in his letter that the method
B which was adopted by him far valuing the shares was also followed
by the Controller of Capital Issues. Copies of Kingsley's letter were
sent to Alan Mackrael and Devagnanam. On June 9, 1976 Price
Waterhouse, Peat & Co., Chartered Accountants, Calcutta wrote a
letter to Mackrael in response to the latter's cable, valuing the shares
of NIIL at Rs. 204 per share. Thai letter shows that while valuing the
c shares, they had taken into account various factors including "the
average of the net asset value and the earnings basis", which, accord-
ing to them, are considered as relevant factors by the Controller
of Capital Issues while valuing the shares of companies. The
Chartered Accountants applied "the CCI formula" and after making
necessary adjustments to the fixed assets, the proposed dividend and
D the gratuity liabilities for 1975, they valued NHL's business, on a net
asset basis, at Rs. 50 lakhs. On an earnings basis, the valuation of
the Company based on the past three years' net profits capitalized
at I 5%, was Rs. 80 lakhs. That gives an average valuation of Rs. 65
lakhs for the business or Rs. 204 per share. The purported offer
to Devagrianan by Khaitan "a sewing needle competitor to Ketti'',
E at 3.6 times par, cannot afford any criterion for valuing NHL's
shares. Khaitan, purportedly, had competitive business interests and
was therefore prepared to "pay the earth to acquire NHL".

According to the learned trial Judge, one thing which appeared
to be certain was that the market value of the shares of NHL at or
F about the time when disputes arose between the parties, and parti-
cularly during the period when the controversial meetings of the
Board of Directors were held, ranged between Rs. 175 and Rs. 204.
We agree with the learned Judge and hold that it would be just and
reasonable to take the average market value of the rights shares on
the crucial date at Rs. 190 per share. The learned trial Judge
G awarded a sum of Rs. 90 per share on 9495 shares to the Holding
Company by way of "solatium", which, with respect, is not an
acccurate description of the award and is likely to confuse the basis
and reasons for directing the payment to be made. Since the average
market price of NIIL's shares in April-May 1977 can be taken to be
H Rs. 190 per, share, the Holding Company, which was offered 9495
rights shares, will be entitled to receive from the Indian shareholders
N.I.I.L. v. N.I.N.H.L. (Chandrachud, C.J.) 827

an amount equivalent to that by which they unjustifiably enriched A
themselves, namely, Rs. 90x9495 which comes to Rs. 8,54,550. We
direct that Devagnanam, his group and the other Indian shareholders
who took the rights shares offered to the Holding Company shall
pay, pro rata, the sum of Rs. 8,54,550 to the Holding Company. The
amount shall be paid by them to the Holding Company from their
own funds and not from the funds or assets of NHL. B
As a further measure of neutralisation of the benefit which
the Indian shareholders received in the meeting of 2nd May, 1977,
we direct that the 16,000 rights shares which were allotted in that
meeting to the Indian shareholders will be treated as not qualifying
for the payment of dividend for a period of one year commencing
from January l, 1977, the Company's year being the Calendar year.
c
The interim dividend or any further dividend received by the Indian
shareholders on the 16,000 rights shares for the year ending Decem-
ber 31, 1977 shall be repaid by them to NHL, which shall distribute
the same as if the issue and allotment of the rights shares was not
made until after December 31, 1977. This direction will not be D
deemed to affect or ever to have affected the exercise of any ·other
rights by the Indian shareholders in respect of the 16,000 rights
shares allotted to them.

We have not considered the possibility of Manoharans taking
up the rights shares offered to them because, by a letter dated May
E
11, 1977 to NHL's Secretary, N. Manoharan bad declined the offer
on the ground that he was "not in a position to take those shares".
Finally, in order to ensure the smooth functioning of NHL,
and with a view to ensuring that our directions are complied with
expeditiously, we direct that Shri M.M. Sabharwal who was appoint-
c:d as a Director and Chairman of the Board of Directors under F
the Orders of this Court dated November 6, 1978 will continue to
fonction as such until December 31, 1982.

The Company will take all effective steps to obtain the
sanction or premission of the Reserve Bank of India or the Cont-
roller of Capital Issues, as the case may be; if it is necessary to G
obtain such sanction or premission for giving effect to the directions
!~Ven by us in this judgment.

In the result, the appeals are allowed with the directions above
mentioned and the judgments of the learned single Judge and of the H
Division Bench of the High Court are set aside. We make no
c>rder as to costs since both the sides are, more or less, equally to
828 SUPREME COURT REPORTS [1981] 3 S.C.R.

A blame, one for creating an impasse and the other for its unjust
enrichment. All parties shall bear their own costs throughout.

The interim orders passed by this Court are vacated.

The amount of Rs. 8,54,550 which the Indian shareholders
have been directed to pay to the Holding Company shall be paid in
B two instalments, the first of which shall be paid before August 31,
1981 and the second before November 30, 1981.

The interim Board of Directors shall forthwith hand over charge
to the Board which was superseded, but with Shri M. M. Sabharwal
as a Director and Chairman of the Board of Directors. After taking
c the charge from the interim Board, the Board of Directors will take
expeditious steps for convening an Annual General Meeting for the
year 197 6-77 and the years thereafter for the purpose of passing the
accounts, declaring dividends electing all Directors and for dealing
with other necessary or incidental matters.

D
N.V.K. Appeals allowed.