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  • 1. PREVENTION OF OPPRESSIONAND MISSMANAGEMENTPRESENTED BY,RANJINI TPRAKESHRAKESHRAJATHA TRRAJSHEKARRAJESWARI
  • 2. Home Top Submit Article Advanced Search FAQ Contact Us RSS Feeds Rated Main Welcome! Categories Enter KEYWORD Please Case Laws Advanced Search login or Civil Laws register Company Law a new free Constitutional Prevention of oppression & mismanagement ( Save as .pdf ) account.Law Published : December 28, 2010 | Author : Consumer sujay_ilnulaws Category : Company Law | Total Views : 3971 | Print | Email to Editors Pick Rating : friend Criminal law Dubai laws Prevention of operation and sujay_il mismanagement Environmenta nul Law Sujay Oppression Dixit, 4th family law Oppression is the exercise of year authority or power in a burdensome, student Human Rights Since time cruel, or unjust manner.[1] It can BA.LL.B(Hons) institute oflaws immemorial also be defined as an act or instance law,Nirma University Immigration the framing of of oppressing, the state of being View articles | Contact author all propertylaws oppressed, and the feeling of being laws have heavily burdened, mentally or physically, by troubles, adverse been Intellectual conditions, and anxiety. exclusively forProperty the benefit of Law - lawyers The Supreme Court in Daleant Carrington Investment (P) Ltd. v. P.K. man, and& legal Prathapan[2], held that increase of share capital of a company for the woman hasProfession sole purpose of gaining control of the company, where the majority been treated shareholder is reduced to minority , would amount to oppression. The as subservient, Miscellaneous director holds a fiduciary position and could not on his own issue shares and dependent SEO to himself. In such cases the oppressor would not be given an opportunity on male to buy put the oppressed. support. The Tax Laws right to Prevention of oppression property is Woman Issues important for Section 397(1) of the Companies Act provides that any member of a Workplace company who complains that the affair of the company are being the freedomEquality & Non- conducted in a manner prejudicial to public interest or in a manner andDiscrimination development oppressive to any member or members may apply to the Tribunal for an of a human order thus to protect his /her statutory rights. Yet Another being. Prior toCategory the Hindu Sub-section (2) of Section 397 lays down the circumstances under which Succession the tribunal may grant relief under Section 397, if it is of opinion that :- Act, 1956 shastric andMore Options (a)the company‟s affairs are being conducted in a manner prejudicial to customary public interest or in a manner oppressive to any member or members ; laws that Most read and varied from articles region to (b) to wind up the company would be unfairly and prejudicial to such region Most rated governed member or members , but that otherwise the facts would justify the articles Hindus and making of a winding up order on the ground that it was just and
  • 3. equitable that the company should be wound. sometimes it varied in the The tribunal with the view to end the matters complained of, may make same region such order as it thinks fit. on a caste Subscription basis resulting Who can apply in diversity in Subscribe now Section 397 of the Companies Act states the members of a company shall the law... and receive free have the right to apply under Section 397 or 398 of the Companies Act. articles and full story | According to Section 399 where the company is with the share capital, updates send to friend the application must be signed by at least 100 members of the company instantly. or by one tenth of the total number of its members, whichever is less, or by any member, or members holding one-tenth of the issued share Na capital of the company. Where the company is without share capital, the Statistics me application has to be signed by one-fifth of the total number of its members. A single member cannot present a petition under section 397 » Ema il of the Companies Act. The legal representative of a deceased member Total whose name is again on the register of members is entitled to petition 554 Articl under Section 397 and 398 of the Companies Act.[3] es Under Section 399(4) of the Companies Act, the Central Government if » the circumstances exist authorizes any member or members of the Total Copyright company to apply to the tribunal and the requirement cited above, may 1288 Autho Registration be waived. The consent of the requisite no. of members is required at rs To Copyright the time of filing the application and if some of the members withdraw their consent, it would in no way make any effect in the application. The Your Books, » other members can very well continue with the proceedings. 1351 Videos, Songs, Total 217 Scripts etc Views Conditions for Granting Reliefs Call us at: To obtain relief under section 397 the following conditions should be 9891244487 / or satisfied:- » email at: 1. There must be “oppression”- The Punjab and Haryana High Court in Total 20admin@legalservi Mohan Lal Chandmall v. Punjab Co. Ltd[4] has held that an attempt to categ ceindia.com deprive a member of his ordinary membership rights amounts to ories “oppression”. Imposing of more new and risky objects upon unwilling Top Law Colleges minority shareholders may in some circumstances amount to Click here “oppression”.[5]However, minor acts of mismanagement cannot be Lawyers regarded as “oppression”. The Court will not allow that the remedy Membership Law Updates: under Section 397 becomes a vexatious source of litigation.[6] But anIncome-TaxFamily law unreasonable refusal to accept a transfer of shares held as sufficientCompany Law ground to pass an order under Section 397 of the Companies Act, Get Listed getConstitutional Law 1956.[7]Thus to constitute oppression there must be unfair abuse of the ClientsPartnership firms powers and impairments of the confidence on the part of the majority of Improve yourImmigration Law shareholders. PracticeCyber LawLok Adalat, legal Aid 2. Facts must justify winding up- It is well settled that the remedy of& PIL winding up is an extreme remedy. No relief of winding up can be grantedForms: on the ground that the directors of the company have misappropriated Blog -Trademarks the company‟s fund, as such act of the directors does not fall in theWoman issues Exclusively category of oppression or mismanagement.[8]To obtain remedy underMedico Legal Section 397 of the Companies Act, the petitioner must show the lawConsumer laws existence of facts which would justify the winding up order on just and Click here toCriminal laws equitable ground. start your BlogSupreme CourtJudgments Top 5 Blog Posts: 3. The oppression must be continued in nature – It is settled position that a single act of oppression or mismanagement is sufficient to invoke # Case laws defining Hindutva Section 397 or 398 of the Companies Act. No relief under either of the & Hinduism section can be granted if the act complained of is a solitary action of the # What Is Human majority. Hence, an isolated action of oppression is not sufficient to Rights? obtain relief under Section 397 or 398 of the Act. Thus to prove # liability of oppression continuation of the past acts relating to the present acts is network service the relevant factor , otherwise a single act of oppression is not capable providers....
  • 4. to yield relief. # Abortion laws # Rights of4. The petitioners must show fairness in their conduct-It is settled legal Surrogateprinciple that the person who seeks remedy must come with clean hands. MothersThe members complaining must show fairness in their conduct. For ex-Mere declaration of low dividend which does not affect the value of theshares of the petitioner ,was neither oppression nor mismanagement inthe eyes of law.[9]5. Oppression and mismanagement should be specifically pleaded- It issettled law that , in case of oppression a member has to specificallyplead on five facts:-a) what is the alleged act of oppression ;b) who committed the act of oppression;c) how it is oppressive;d) whether it is in the affairs of the company;e) and whether the company is a party to the commission of the act ofoppression.[10]Prevention of MismanagementThe present Company Act does provide the definition of the expression„mismanagement‟. When the affairs of the company are being conductedin a manner prejudicial to the interest of the company or its members oragainst the public interest, it amounts to mismanagement.Section 398(1) of the Companies act provides that any members of acompany who complain:-that the affairs of the company are being conducted in a mannerprejudicial to public interest or in a manner prejudicial to the interestsof the company; or a material change has taken place in themanagement or control of the company, whether by an alteration in itsBoard of directors, or manager or in the ownership of the companysshares, or if it has no share capital, in its membership, or in any othermanner whatsoever, and that by reason of such change, it is likely thatthe affairs of the company will be conducted in a manner prejudicial topublic interest or in a manner prejudicial to the interests of thecompany; may apply to the Company Law Board for an order of reliefprovided such members have a right so to apply as given below.If, on any such application, the Company Law Board is of opinion that theaffairs of the company are being conducted as aforesaid or that byreason of any material change as aforesaid in the management or controlof the company, it is likely that the affairs of the company will beconducted as aforesaid, the court may, with a view to bringing to an endor preventing the matters complained of or apprehended, make suchorder as it thinks fit.Right to Complain mismanagement-1. The following members of a company shall have the right to apply asabove:-a) in the case of a company having a share capital, not less than onehundred members of the company or not less than one tenth of the totalnumber of its members, whichever is less, or any member or membersholding not less than one-tenth of the issued share capital of thecompany, provided that the applicant or applicants have paid all callsand other sums due on their shares;b) in the case of a company not having a share capital, not less than one-fifth of the total number of its members.
  • 5. 2. Where any share or shares are held by two or more persons jointly,they shall be counted only as one number.3. Where any members of a company, are entitled to make anapplication, any one or more of them having obtained the consent inwriting of the rest, may make the application on behalf and for thebenefit of all of them.4. The Central Government may, if in its opinion circumstances existwhich make it just and equitable so to do, authorize any member ormembers of the company to apply to the Company Law Board,notwithstanding that the above requirements for application are notfulfilled.5.The Central Government may, before authorizing any member ormembers as aforesaid, require such member or members to give securityfor such amount as the Central Government may deem reasonable, forthe payment of any costs which the Court dealing with the applicationmay order such member or members to pay to any other person orpersons who are parties to the application.6. If the managing director or any other director, or the manager, of acompany or any other person, who has not been impleaded as arespondent to any application applies to be added as a respondentthereto, the Company Law Board may, if it is satisfied that there issufficient cause for doing so, direct that he may be added as arespondent accordingly.Notice to be given to Central Government of applicationThe Company Law Board must give notice of every application made to itas above to the Central government, and shall take into considerationthe representations, if any, made to it by that Government beforepassing a final order.Right of Central Government to applyThe Central Government may itself apply to the Company law Board foran order, or because an application to be made to the Company LawBoard for such an order by any person authorized be it in this behalf.Powers of TribunalUnder Section 402 of the Companies Act ,1956 the powers of the Tribunalunder Sections 397 and 398 are very wide .These are :-1. the regulation of the conduct of the companys affairs in future;2. the purchase of the shares or interests of any members of thecompany by other members thereof or by the company;3. in the case of a purchase of its shares by the company as aforesaid,the consequent reduction of its share capital;4.the termination, setting aside or modification of any agreement,howsoever arrived at, between the company on the one hand, and any ofthe following persons, on the other namely:-a) the managing director;b) any other director;c) the manager;Upon such terms and conditions as may, in the opinion of the CompanyLaw Board, be just and equitable in all the circumstances of the case;the termination, setting aside or modification of any agreementbetween the company and any person not referred to in clause (d),
  • 6. provided that no such agreement shall be terminated, set aside ormodified except after due notice to the party concerned and providedfurther that no such agreement shall be modified except after obtainingthe consent of the party concerned; the setting aside of any transfer,delivery of goods, payment, execution or other act relating to propertymade or done by or against the company within three months before thedate of the application, which would, if made or done by or against anindividual, be deemed in his insolvency to be a fraudulent preference.Any other matter for which in the opinion of the Company Law Board it isjust and equitable that provision should be made.Effect of alteration of memorandum or articles of company by order:Where an order makes any alteration in the memorandum or articles of acompany, then, notwithstanding any other provision of this Act, thecompany shall not have power, except to the extent, if any permitted inthe order, to make without the leave of the Company Law Board, anyalteration whatsoever which is inconsistent with the order, either in thememorandum or in the articles. The alterations made by the order shall,in all respects, have the same effect as if they had been duly made bythe company in accordance with the provisions of this Act.A certifiedcopy of every order altering or giving leave to alter, a companysmemorandum or articles, must within thirty days after the makingthereof, be filed by the company with the Registrar who shall registrarthe same.If default is made in complying with the above provisions, thecompany, and every officer of the company who is in default, shall bepunishable with fine which may extend to five thousand rupees.Consequences of termination or modification of certain agreements:Where an order terminates, sets aside or modifies an agreement:-the order shall not give rise to any claim whatever against the companyby any person for damages or for compensation for loss of office or in anyrespect, either in pursuance of the agreement or otherwise; no managingor other director or manager whose agreement is so terminated or setaside, shall for a period of five years from the date of the orderterminating the agreement, without the leave of the Company LawBoard, be appointed, or act, as the managing or other director ormanager of the company. Any person who knowingly acts as a managingor other director or manager of a company in contravention of the aboveprovision, every director of the company, who is knowingly a party tosuch contravention shall be punishable with imprisonment for a termwhich may extend to one year, or with fine which may extend to fivethousand rupees, or with both. The Company Law Board will not grantleave for appointment as managing director or director or manager of thecompany unless notice of the intention to apply for leave has beenserved on the Central Government and that Government has been givenan opportunity of being heard in the matter.Powers of Central Government to prevent oppression ormismanagement:The Central Government may appoint such number of persons as theCompany Law Board may, by order in writing, specify as being necessaryto effectively safeguard the interests of the Company or its shareholdersor public interests, to act as directors thereof for such period notexceeding 3 years on any one occasion[11] as it deems fit if the CompanyLaw Board:-On a reference being made to it by the Central Government ; or on anapplication of not less than one hundred members of the company or ofmembers of the company holding not less than one-tenth of the totalvoting power therein, is satisfied, after such inquiry as it deems fit tomake, that it is necessary to make the appointment or appointments in
  • 7. order to prevent the affairs of the company being conducted either in amanner which is oppressive to any members of the company or in amanner which is prejudicial to the interests of the company or to publicinterest.However, in lieu of passing order as aforesaid, the Company Law Boardmay, if the company has not availed itself of the option given to it ofproportional representation to minority shareholders on the Board of thecompany, direct the company to amend its articles in the mannerprovided section 265 and make fresh appointments of directors inpursuance of the articles as so amended within such time as may bespecified in that behalf by the Company Law Board.In case the Central Government passes such an order it may, if thinks fit,direct that until new directors are appointed in pursuance of the orderaforesaid, not more than two members of the company specified by theCompany law Board shall hold office as additional directors of thecompany. The Central Government shall appoint such additional directorson such directions.The person appointed as a director by the Central Government inaccordance with the above provisions, need not hold any qualificationshares or need to retire by rotation. However, his office as director maybe terminated at any time by the Central Government and anotherperson appointed in his place. No change in the constitution of the Boardof Directors can take place after an additional director is appointed bythe Central Government in accordance with these provisions unlessapproved by the Company Law Board. The Central Government in suchcases may also issue such directions to the company as it may considernecessary or appropriate in regard to its affairs.Power of the Tribunals to prevent change in Board of Directors :Where a complaint is made to the Company Law Board by the managingdirector or any other director or the manager of a company that, as aresult of a change which has taken place or is likely to take place inownership or any shares held in the company, a change in the Board ofdirectors is likely to take place which (if allowed) would affectprejudicially the affairs of the company, the Company Law Board may, ifsatisfied, after such inquiry as it thinks fit to make that it is just andproper to do so, by order direct that no resolution passed or that may bepassed or no action taken or may be taken to effect a change in theBoard of directors after the date of the complaint shall have effectunless confirmed by the Company Law Board.Any such order shall have effect notwithstanding anything to the contrarycontained in any other provision of this Act or in the memorandum orarticles of the company, or in any agreement with, or any resolutionpassed in general meeting by, or by the Board of directors or, thecompany. The Company Law Board shall have power when any suchcomplaint is received by it, to make an interim order to the effect setout above, before making or completing the inquiry aforesaid. Nothingcontained above shall apply to a private company, unless it is asubsidiary of a public company.[12]Powers of Inspectors [S.240]:Where an inspector investigating the affairs of the company thinks itnecessary to investigate the affairs of another company in the samemanagement or group , he is empowered to do so. However as mentionedin section 239(2), he has to obtain prior approval of the CentralGovernment for that purpose.[13] Section 240 has been amended by theAmendment of 2000 .Sub-section (1) was substituted. The new sub-
  • 8. section provides that it shall be the duty of all officers and otheremployees and agents of the company and those of any other bodycorporate whose affairs are being investigated under Section 239:a) to preserve and to produce to an inspector or any other personauthorized by him in this behalf with the previous approval of the CentralGovernment, all books and papers of or relating to the other bodycorporate, which are in their custody or power; andb) otherwise to give to the inspector, all assistance in connection withthe investigation which they are reasonable able to give.For facilitating the task of the inspector it is the duty of all officers incharge of the management of the company to produce to the inspectorall books and papers of the company which are in the custody and powerand to give to the inspector all assistance in connection with theinvestigation which they are reasonably able to give.[14]The inspectormay examine on oath any such person and for this purpose require hispersonal attendance.[15]If a person required to appear or to producebooks, makes a default that is a punishable offence.[16]Where aninspector finds a person, whom he has no power to examine on oath,ought to be so examined the inspector may do so with the previousapproval of the Central Government. Notes of any such examination areto be taken in writing and signed by the person examined and may beused in evidence against him [17].A refusal to answer any question is alsopunishable.ConclusionOppression and mismanagement are part and parcel of business. Duringthe course of business, oppression of small/minority shareholders takesplace by the majority shareholders who are in control of the company.Similarly, mismanagement of business is not uncommon. When we talk ofmismanagement we mean mismanagement of resources. Mismanagementcould mean siphoning of funds, causing losses due to rash decision, notmaintaining proper records, not calling requisite meetings. Finer versionof mismanagement could arise where the management does notact/react to a business situation leading to downfall of business.The concept of oppression and mismanagement is more relevant orcommon to family owned concerns. The reasons are very obvious. Familyowned concerns are owned by family members who over time developvested interest in business vested interest in their own heirs being themost common - thereby leading to oppression of other family members.Here typically, the controlling member of the family appropriates thefamily holdings by means of either a fresh issue or fraudulent transfers inhis favor or reconstitutes the board in such a manner as to alienate theother family members. The result is the other family members getoppressed.Secondly, the family owned concerns are not professional managed andtheir system of functioning is usually personal. They lack probity and fairplay. They generally do business in a manner where they begin to benefitpersonally to the exclusion of other members. This leads to oppression ofother family members/mismanagement of companies.In order to check all these discrepancies the need was felt to have anymeasure to prevent the Oppression and mismanagement and thus underChapter 6th of Part 6th of Companies Act , 1956 provides for the judicialas well as administrative remedies to check Oppression andmismanagement. It is a powerful tool which provides such power thateven a singer member can approach Company Law Board if any of his
  • 9. right has been infringed or in order to prevent the Oppression and mismanagement in the company. Bibliography 1. Singh Avtar .Company Law(Lucknow:Eastern Book Company) 2008. 2. Kapoor N.D. Elements of Mercantile Law(New Delhi:Sultan Chand and Sons) 2009. 3. Tripathi S.C. Modern Company Law (Allahabad:Central Law Publications) 2006. 4. Saharay H.K. Company Law (New Delhi:Universal Law Publishing Company Pvt. Ltd) 2008. -------------------------------------------------------------------------------- [1]Available at http://www.aolsvc.merriam- webster.aol.com/dictionary/oppression visited on August 9,2010 [2] (2004) 4 Comp. L.J. 1 (S.C.) [3] Worldwide Agencies Pvt. Ltd. v. Mrs. Margaret T. Desor , AIR 1990 S.C. 737 [4] AIR 1961 Punj. 485 [5] Re, Hindustan Cooperative Insurance Society Ltd.,(1961) 31 Comp. Cas. 193. [6] Lalita Rajya lakshmi v. Indian Motor Co. ,AIR 1962 Cal. 127. [7] Gajabai v. Patni Transport Co.,(1965) 2 Comp. L. J. 234 [8] Palghat Exports Ltd. v. F.V. Chandran , (1994) 79 Comp. Cas. 213 Ker. [9] Jaledhar Chakraborty v. Power Tools Appliances Co. Ltd.,(1994) 79 Comp. Cas. 505 [10] Dinesh Sharma and another v. Vardeen Agrotech (P.)Ltd. and others ,(2007) 1 Comp. L.J. 155 (CLB) [11] Section 408(1) of the Companies Act , 1956. [12] Available at legalserviceindia.com visited on August 7,2010 [13] Sahu Jain Ltd. v. Dy. Secy ,Minister of Finance, [1965] 2 Comp LJ 145 [14] S.240-This duty is imposed upon all officers and other employees and agents of the company , and where the company is or was managed by a managing director…………………….,etc ,or where it is a firm ,upon all its partners [15] S.240(2) [16] S.240(3) [17] S.40(5) The author can be reached at: sujay_ilnu@legalserviceindia.com 1 2 3 4 5 Rate this Excellent Rate Now ! article! Poor Is 498A of the Indian Penal Code Anti-Social?Affirmative Position : Yes 498A is Anti-Social because..... (100 Points) V/SNegative Position : No 498A is NOT Anti-Social because..... (30 Points) Post your argument Click here
  • 10. University of Athens - Faculty of LawThe Law School, which together with Theology, Medicine and Philosophy formed the core of the University of Athens, founded in1837 during the reign of Otto.... Click here to see a list of Top law colleges in the world We offer Copyright Registration Services Right from your Desktop.....click here Most viewed articles in Company Law category • ADR Mechanism in India • Demerger under Company Law • Remuneration of Directors • Pre-incorporation contracts • Corporate Personality • Privity of contract & third party beneficiary in a contract • One Person Company Concept • Company as State under Article 12 of Constitution of India • Directors & Their Liabilities • FDI policy, April 2010 - An Analysis • Oppression & Mismanagement • Prevention of oppression & mismanagement • Indemnity in a contract • Which employees do not fall under the ambit of Industrial Dispute Act, 1947 • Why Mergers and Acquisitions fail? Most recent articles in Company Law category • Company: Meaning and Interpretation under the Land Acquisition Act, 1894 • Foreign Venture Capital Investment In India
  • 11. • Section 25 Companies• Dissolution of partnership firm• Articles of Association & Alteration of Articles• Land Acquisition for SEZ• Non Performing Assets in PSBs• Role of Central Government in Mergers & Amalgamations• Liberalisation of Indian Banking & Regulation• Mergers & Acquisitions for firms• Globalization & its impact on Indian Economy: Developments and Challenges• Foreign Direct Investment: A general understandng• Corporate social responsibility• Independence of Independent Directors in India• Cross Border Mergers: Implications under the Competition Act, 2002Article Comments Posted by bhuban on February 04, 2012 thanks for these information.Post Your CommentsName Note : Your email address is only visible to admin, other members / users cannot seeEmail it. You can use followingYour comments FXCodes BOLD : [b] Italic : [i] [b] LegalServicesIndia.com [/b] is a [i]nice website[/i].
  • 12. [url= http://legalservicesindia.co Type the two words:Type what you hear:Incorrect. m/article/ ]click here to Try again. visit.[/url] LegalServicesIndia.com is a nice website. Click here to visit Note : Currently, user comments are NOT moderated and will be posted immediately.TOP Lawyers Directory: Delhi - Delhi-2 - Kolkata - Mumbai - Chennai - Bangalore - Hyderabad - Allahabad - Pune - Legal Advice Ahmedabad - Nagpur - Cochin - Consult Our legal Experts, all issues relatedGurgaon - Jaipur - Ludhiana - Thane - Noida - Marriage, Divorce, Separation, Adoption,Indore - Lucknow - Ghaziabad Chandigarh - Wills etc - Get your solution within 48hrs -Jodhpur - Pondicherry - New York - Milan - To avail Our professional service Click HereSwitzerland - Barbados - London - Cameroon -Dubai - Paris - Johannesburg - Lawyers InAmerica - Lawyers Home Home | SC Judgments | Legal Forms | Advice | Add A Link | Terms of use | Debate | F A Q | Sitemap | About Us | Contact Us