J.B. Koshy, J.
1. First respondent in this appeal (referred in this judgment as the petitioner for convenience) filed a petition under Section 237 of the Companies Act, 1956 ('the Act') to direct the Central Government to appoint one or more competent persons as inspectors by declaring that the affairs of the Premier Plantations Ltd., first appellant ('as company') ought to be investigated and to report thereon within a specified time limit. Before going into the facts of the case we may first discuss the power of this Court under Section 237(a)(ii). Section 237 reads as follows :
'Investigation of company's affairs in other cases.- Without prejudice to its powers under Section 235, the Central Government--
(a) shall appoint one or more competent persons as inspectors to investigate the affairs of a company and to report thereon in such manner as the Central Government may direct, if--(i) the company, by special resolution; or
(ii) the Court, by order, declares that the affairs of the company ought to the investigated by an inspector appointed by the Central Government; and
(b) may do so if, in the opinion of the Company Law Board, there are circumstances suggesting--
(i) that the business of the company is being conducted with intent to defraud its creditors, members or any other persons, or otherwise for a fraudulent or unlawful purpose, or in a manner oppressive of any of its members, or that the company was formed for any fraudulent on unlawful purpose;
(ii) that persons concerned in the formation of the company or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards the company or towards any of its members; or
(iii) that the members of the company have not been given all the information with respect to its affairs which they might reasonably expect, including information relating to the calculation of the commission payable to a managing or other director or the manager, of the company.'
A reading of the above section will show that power given under Section 237 to the Central Government is independent and operates without prejudice to its powers under Section 235 of the Act. But under Section 237(a) the Central Government can appoint an inspector for investigating the affairs of the company only if the company passes a special resolution for it or if an order is passed by the Court. Under Section 237(b) the CLB is also empowered to do so in certain special circumstances required the Central Government to conduct investigation. By virtue of the power under Section 237(a)(ii), the Court cannot appoint directly inspector or inspectors to investigate the affairs of the company but only make a declaration that the affairs of the company ought to be investigated by an inspector appointed by the Central Government. Once such an order is passed it is mandatory for the Central Government to conduct such investigation by appointing competent persons as inspectors--Delhi Flour Mills Co. Ltd., In re [1975] 45 Comp. Cas. 33 (Delhi), and in Alembic Glass Industries Ltd., In re [1972] 42 Comp. Cas. 63 (Guj.).
2. The Court referred to in Section 237 is the Court having jurisdiction under Section 10 of the Act and no other Court or a Court hearing writ petitions. Petition was filed before the competent company court in this case. It is true that mere allegations are not sufficient to support an application to the court to act under Section 237(a)(ii). The material placed before the Court should be such as to satisfy the Court that a deeper probe into the affairs of the company is desirable in the interests of the company itself as held by this Court in P. Sreenivasan v. Yoosuf Sagar Abdullah & Sons (P.) Ltd. [1983] 53 Comp. Cas. 485. In other words, the Court will not pass a declaration under Section 237(a) for a fishing expedition. But the Court is entitled to see whether on the basis of the material brought before the Court, declaration is to be made or not Modi Industries Ltd. v. Union of India [1982] 52 Comp. Cas. 589 (Delhi). An isolated instance of mismanagement is not enough for the Court to declare that an investigation is required. The material placed before the Court should be such as to satisfy the Court that a deeper probe into the company affairs is desirable in the interests of the company itself. The judicial conscience must be satisfied that there has been misadministration in the affairs of the company warranting an investigation.
3. It was argued by the counsel for the appellants that in Sofia Usman v. Union of India [2000] CLC 110 a single Judge of this Court held that without exhausting the remedy under Section 237(b), the Court cannot exercise power under Section 237(a)(ii), A reading of this decision shows that proper relief was not asked in the petition as required under Section 237(a)(ii) and company itself was not impleaded as a party. Existence of alternate remedy also can be taken as a condition for refusing to exercise the discretionary jurisdiction in appropriate cases, but it cannot operate as an absolute bar. Nowhere in Section 237 it is stated that court cannot be approached under Section 237(a)(ii) before approaching the CLB under Section 237(6). It is true that after amendment of Section 237(6). (Companies Amendment Act, 1988 with effect from 31-5-1991), the CLB has power to direct the Central Government to appoint inspectors to investigate into the affairs of the company if circumstances mentioned in Sub-clause (i), (ii) or (iii) of Section 237(6) exit. But, the CLB must be satisfied that such circumstances exit as held by the Apex Court in Barium Chemicals Ltd. v. CLB AIR 1967 SC 295. Before amendment, this power was with the Central Government itself. See also Rohtas Industries Ltd v. S.D. Agarwal AIR 1969 SC 707. Power of the CLB under Section 237(6) is not a bar in exercising the discretionary jurisdiction of the Court under Section 237(a)(ii). No such condition was made out by the Legislature for exercising the jurisdiction by the company court under Section 237(a)(ii) even though Court will take such a course only if circumstances warrant. Another decision pointed out is the decision of the learned single Judge of this Court R.V. Mohammed v. Trichur Heart Hospital Ltd. [2000] CLC 258. What was held in that decision is the Court cannot order an investigation by appointing an inspector, but under Section 237(a)(ii) the Court can, if circumstances warrant, by an order makes a declaration that the affairs of the company ought to be investigated by an inspector appointed by the Central Government and on making such declaration the Central Government has no option but has to appoint an inspector to investigate the affairs of the company. No other hypertechnical view is possible in view of the clear wording of Section 237(a). As held by the Gujarat High Court in Alembic Glass Industries Ltd.'s case (supra):
'The Legislature has conferred wide jurisdiction on this court to entertain a petition under Section 237(a)(ii). In fact, the power of the Central Government to appoint an inspector suo motu under Section 237(6) is limited to its subjective satisfaction in respect of one or other matters contained in three sub-clauses of Clause (6). The Legislature in its wisdom has not put any such condition before the court can make an order, though the court may in its wisdom expect prima facie proof of some of these conditions on the subjective satisfaction of which the Central Government would appoint an inspector. While conferring jurisdiction on the court to direct the Central Government to appoint an inspector, the Legislature has not thought fit to circumscribe the discretion or jurisdiction in any manner. It would, therefore, be utterly inappropriate to curtail or circumscribe or fetter the jurisdiction of this court by reading into the section something which is not there.' (p. 68)
4. Another decision pointed out by the learned counsel for the appellants in the Apex Court decision in Sri Ramdas Motor Transport Ltd. v. Tadi Adhinarayana Reddy [1997] 90 Comp. Cas. 383'. There a writ petition was filed seeking direction for investigation by the Central Bureau of Investigation. The Apex Court held that in view of the specific remedies under Sections 43A, 234, 235, 237, 397 and 398 of the Act, a writ petition will not lie. It is not a matter of public interest and remedy available under the Act shall be availed of. Here the petitioner has approached under Section 237 and it cannot be held that petition is not maintainable. Scope and power of company court under Section 237(a)(ii) was not discussed in that decision. Of course under Section 237(a)(ii) Court's would insist upon solid factual base and mere allegations are insufficient. It was held by this court in Mrs. U.A. Sumathy v. Dig Vijay Chit Fund (P.) Ltd. [1983] 53 Comp. Cas. 493, that:
'... No doubt, Clause (d)(ii) of Section 237 does not lay down what circumstances are to be proved before the court and on that materials the court could act. But that does not mean that mere allegations are sufficient. A court can act only on the materials placed before it; and those materials should at least be such as to satisfy the court that a deeper probe into the company's affairs is desirable in the interests of the company itself...' (p. 496)
The powers under Section 237(a)(ii) were considered by Justice M.P. Menon in the decisions in P. Sreenivasan's case (supra). In that decision it was held as follows :
'The section conceives of three situations where the Central Government can appoint inspectors for investigations. The first is when the company itself declares that such an investigation is necessary. The second is when the court makes an order. And the third is when the Central Government forms an opinion that the circumstances enumerated in Clause (b) exist. The first is easy to understand : when the company itself wants an investigation, the Central Government need not stop to enquire why. The third can also be understood because when suo motu action is proposed to be taken by the Government, it shall not act arbitrarily, but only consistent with guidelines laid down. But what about the second situation, where the court has to make an order Mr. Ramanatha Piliai for the petitioner suggests that the power and the discretion of the court are uncontrolled; it can direct an investigation whenever it suspects that all is not well with the company. Whether the apprehensions of the court are true or not is a matter to be found by the investigating inspectors, and the court is not to insist on evidence. It appears to me that this is too broad a statement. Investigation of the company's affairs by the Department of Trade in England has always been understood as a statutory exception to the rule in Foss v. Harbottle [1843] 2 Hare 461 that the internal affairs of a company is a matter for the majority, and a dissatisfied minority cannot seek outside interference. The Companies Act provides for the protectionof minorities in three ways (i) by giving them a right to complain against oppression, (ii) by permitting them to act on behalf of the company when it is wound up, as in the case of misfeasance proceedings, and (iii) by enabling them to obtain remedies indirectly through investigation. The Court's discretion under Section 237 is, therefore, to be exercised only when it is satisfied that the minority has made out at least a prima facie case that the rule in Foss v. Harbottle [1843] 2 Hare 461, requires relaxation in the interest of the company...' (p. 489)
We agree with the above observation that before passing an order under Section 237(a)(ii) the Court should be satisfied that there are sufficient materials to show that affairs of the company is in such a way that an investigation is necessary. We also note that existence of circumstances described under Section 237(b) may sway the Court to pass an order under Section 237(a)(n) also. But we are of the opinion that it is not always mandatory that the Court can pass a declaration only if the conditions under Section 237(b) exist. No such restrictions are placed by the Legislature even though the Court will exercise its judicial discretion only on sufficient materials and only after the court is convinced that situation warrants an investigation in the interest of the company as a whole. We also note that for a minority shareholder or a person legally interested in the affairs of the company, may not always be possible to place all materials alleged by him. But investigation is necessary to disclose something which is not apparently visible. If all materials are already available, there is no scope for further investigation. At the same time, existence of circumstances must warrant reasonably so as to invoke jurisdiction of the Court. Power of the Court under Section 237(a)(ii) is not equal to the power of the CLB under Section 237(b). Unless any one of the circumstances as mentioned in Section 237(b) exist, the CLB cannot order an investigation, but no such restriction is placed on the Court.
5. As facts are concerned, according to the petitioner, he is an equity shareholder of 5,16,000 equity shares of the company. The company was incorporated on 12-12-1990 as a private limited company and the petitioner was one of the promoters of the company. By resolution dated 5-1-1991 the company resolved to take over the assets and liabilities of T.P. Muralidharan & Associates and the amount outstanding in the credit of partners account, both capital and current account as on 31-12-1990 should be taken as the amount contributed by them towards share capital and necessary share certificates should be issued to them. The company was engaged in the plantation of tea, coffee, cardamom and pepper. It was converted into a public limited company on 28-1-1991. Thereafter it came out with public issue of 36 lakhs equity shares of Rs. 10 each for cash at par. Subscriptions of shares were received about 14 times of the declared public issue. As per Clause 11(A) of the articles of association, the subscribers to the memorandum of association were appointed as directors. The petitioner and the second appellant herein were subscribers of the memorandum of association. The second appellant was appointed as the managing director. (We are referring the second appellant as 'managing director' in this judgment.) Though, as per Clause 16 of the memorandum of association, all directors except the managing director for the time being were to retire from office at the first annual general meeting of the company, no annual general meeting of the company has been held or convened in time. Though a document styled as first annual report and accounts of 1991 was published on 31-2-1992, no such meeting of the company was held at 3 p.m. on 25-4-1992 at the registered office of the company as mentioned in the notice attached to the report and accounts of 1991. The managing director had been fraudulently mismanaging the company in utter disregard of the interest of the shareholders and was acting in an autocratic and oppressive manner. He began to create false and fabricated documents with nefarious motive to oust the petitioner and other members of the board of directors who opposed the misutilisation and misappropriation of public funds. He created documents and minutes purporting to remove the petitioner and others who opposed the mismanagement and oppression. Though on the public, issue shares were oversubscribed to the tune of 14 times and huge amounts were collected from the public, shares were neither allotted properly nor amounts refunded to the applicants whose application for shares were not accepted. It is understood that 1200 complaints are filed before the jurisdictional court in Bombay against the managing director by the subscribers to whom amounts were not refunded. It was also stated that for non-convening of the meeting and not filing balance sheet for the period 1992 to 1996 many proceedings are pending. Share value of the company was depleted to nil from Rs. 70 and company has been de-listed in the Stock Exchange. The managing director had misappropriated, musutilised and mismanaged the funds collected through public issue and diverted the funds for his private purposes ignoring the purpose for which the company was incorporated. The authorities who are entrusted to supervise and control the management of the company and to prevent misuse of public funds are not discharging their duties properly.
6. The appellants opposed the above petition and submitted that there is no locus standi to file the above petition as he was no more a shareholder at the time of filing the petition. It was stated that he was the Chairman of the company till 28-5-1993 only. General body meetings were held properly and the excess amount collected for share capital was returned without delay. All allegations against the second respondent as managing director of the company was denied and it was also submitted that no case is made out by the petitioner for an order of investigation by the court under Section 237.
7. Before going into the merits of the case we may also consider the argument regarding locus standi of the petitioner. It is not disputed that he was the first chairman of the company. He owns 5,16,000 equity shares. According to the company, the above shares were transferred. It is the contention of the petitioner that documents were created by the appellant to oust the petitioner and other members who opposed the misutilisation and misappropriation of funds, especially received from public placement of shares. This, according to him, is one of the matter to be investigated. Admittedly, he was a promoter of the company. Counter statement filed by the third respondent reveals further facts, which we will consider later, would show that the petitioner is substantially interested in the affairs of the company. In such circumstances, he cannot be turned as person having no manner of interest or concern in the company as held by the Delhi High Court in V.V. Purie v. E.M.C. Steel Ltd [1980] 50 Comp. Cas. 127. As we have already held the question is whether sufficient materials are there for the Court to hold prima facie that a deeper investigation is required on the facts of the case and being a discretionary remedy to be exercised with much caution, sufficiency of materials has to be proved.
8. Based on the decision in Uunet India Ltd. v. I.C. Rao [1998] 93 Comp. Cas. 41 (AP). It was argued that once the company court passes a discretionary declaration under Section 237(a)(ii) for appointment of an inspector for investigation, it cannot set aside as it is not a judicial or a quasi-judicial order and is not appealable. The court is not appointing inspectors by itself. Order does not deter the rights of the parties. We are of the view that the order is also appealable under Section 483 of the Act. But when a discretionary order under Section 237(a)(ii) is passed by the proper Court with jurisdiction, unless there is compelling ground appellate court will not interfere. In other words, if there is no prima facie material at all before the Court and the Court ordered investigation under Section 237(a)(ii) as a fishing expedition, appellate court will interfere. But it is settled law that if order passed after considering the materials available, normally appellate court will not interfere with the discretionary order passed by a competent court with jurisdiction. Therefore, we may come to the facts of the case.
9. On behalf of the fourth respondent the Central Government (third respondent) a counter affidavit was filed. Averments in the same really support the petitioner's allegations. With regard to shareholders register of the petitioner, it is submitted in paragraph 2 of the counter affidavit that:
'...it is respectfully submitted that Premier Plantation Ltd. was incorporated on 12-12-1990 as a private limited company. The said company had became a public company under Section 44 of the Companies Act with effect from 28-1-1991.... The memorandum and articles of association of the said company show that the petitioner herein was one of the promoters of the company. Since the said company was a listed company and since the company was not regular in filing the returns in compliance of the provisions of the Companies Act, 1956 at the third respondent's office, the respondents 3 and 4 are not posted with the facts regarding the shareholding position of the petitioner. The petitioner has alleged that the shares held by him had been fraudulently transferred by the second respondent...It was stated in the prospectus that the first respondent-company was incorporated by taking over the assets and liabilities of a partnership firm, viz., T.P. Muralidharan & Associates which was engaged in the plantation of Tea, Coffee, Cardamom and Pepper. It was stated further that the firm was in operation for about 11 months before taken over by the first-respondent-company and the operations of the firm during the said period was profitable. As found from the prospectus, the total income of the firm was Rs. 121 lakhs on which its net profit was Rs. 82 lakhs. It was further stated in the prospectus that on taken over of the firm by the company, the extent of the amounts standing at the credit of the partners capital account was amounted to Rs. 240 lakhs and equity shares of Rs. 240 lakhs had been allotted by the first-respondcnt-company to the partners of T.P. Muralidharan & Associates as on 15-1-1991 is as under : NameNo. of Shares allottedfor other than cash1. M. Ibrahimkutty5160002. T.P. Muralidharan5160003. K.P. Basheer2400004. C.M. Subair2400005. Mrs. Sukumari2100006. T.P. Ratnakumari2100007. Mrs. Zahida2100008. Smt. T.P. Kauhamina2100009. Mr. Joseph Pudussery48000 _2400000_
10. With regard to the allegation that due to public issue of shares, Rs. 24.74 crores was over subscribed and it was not refunded, it is stated as follows :
'... In terms of the public issue every application for shares was to be for a minimum of 100 shares of its multiples and a sum of Rs. 5 per share was to be paid towards application money. The issue was oversubscribed and the total shares application money received by the first-respondent-company was Rs. 27.90 crores as against the share allotments made for Rs. 3.16 crores. Hence a sum of Rs. 24.74 crores had to be refunded to the unsuccessful applicants. It is revealed from the Director's Report formed part of the balance sheet as at 31-3-1996 of the first-respondent-company that only Rs. 1 crore had been paid for the estate to Bank of Tokyo out of the capital of Rs. 3.60 crores raised through the public issue and as a result, the possession of the Estate was restored to the Receiver because of the non-payment of the balance money.'
11. With regard to non-conducting of annual general body meeting in time and non-filing of the balance sheet, it is clear from the counter affidavit that first annual general body meeting was held on 25-4-1992 and the second annual general body meeting was held only on 19-3-1997 for adopting the accounts for 31-3-1993 to 31-3-1996, it is stated as follows:
'... As regards the averments made in this paragraph that no annual general meeting of the first-respondent-company had been convened till filing of this petition, it is submitted that the audited financial statementsfiled at the third respondent's office show that the annual general meetings for adopting the said accounts were held as follows :-
1. For B/S. as at31-12-1991 First AGM on 25-4-1992 at 3.00 PM2. -do-31-3-1993; Second AGM on 19-3-1997 at 10.30 AM3. -do-31-3-1994 Third AGM on 19-3-1997 at 11.30 AM4. -do-31-3-1995 Fourth AGM on 19-3-1997 at 2.00 PM5. -do-31-3-1996 Fifth AGM on 19-3-1997 at 3.00 PMSince the first-respondent-company has a large number of shareholders as it had gone for public issue, the AG meetings held on 19-3-1997 for adopting the accounts for 31-3-1993 to 31-3-1996 cannot be believed to be properly held in compliance of the provisions of Section 166 of the Companies Act...'
Again it was stated as follows :
'The first-respondent was not regular in filing the statutory returns with the third respondents required under the Companies Act. Prosecution cases were filed against the first and second respondents for not filing the balance sheets of the first respondent at the third respondent's office. Cases were filed for not filing the balance sheet as at 31-3-1993, 31-3-1994, 31-3-1995 in time. The second respondent had filed the said balance sheets with the third respondent only on 23-5-1997. The total number of cases filed by the third respondent against first respondent and second respondent under various provisions of the Companies Act are as follows : No. of ProsecutionSectionResults3220(3)Pleaded guilty3162-do-7113(2)-do-7473(2B)Pending.'
12. With regard to diversion of funds collected through public issues, it was stated as follows :
'. . . But some of the mistakes committed by the first and second respondents at the time of public issue appear to be wilful and doubted to be for undue benefits. It was stated in the prospectus that the refund will be made to the unsuccessful applicants by cheque or demand draft drawn on any of bankers to the issue. The first respondent had opened the refund account with ANZ Grindlays Bank, Mumbai-1, which was not include as 'bankers to the issue as per the prospectus. ANZ Grindlays Bank has filed a suit, O.S. No. 431 of 1993 against the first-respondent before the Sub-Court, Ernakulanm; for recovery of a sum of Rs. 1,05,29,947.70. It was found from the statement of the refund that the first-respondent had transferred a sum of Rs. 2,02,93,904 from the refund account on 8-5-1992 for making payments to the following parties :-
(i) Issued D.D. for Rs. J crore in favour of Bank of Tokyo.
(ii) Transferred Rs. 75,00,000 to the account of Fairgrowih Financial Services Ltd., Bangalore.
(iii) Rs. 27,92,294 was issued to the first-respondent by way of pay order and was encashed by it.'
Further it was stated as follows :
'...the prospectus issued by the first respondent on 18-12-1991 shows that the object of the issue was to provide a part of the funds required for acquiring the tea estate along with the processing plant which was being operated by the first-respondent on lease. The total area proposed to be acquired was about 1900 acres. Cost of the project was worked out as under:Cost of acquisition of tea estate : Rs. 265 lakhsDevelopment expenditure : Rs. 15 lakhsPlant and machinery : Rs. 45 lakhs
But it is not clear from the accounts of the company that the funds collected in the public issue had been utilised as proposed in the prospectus. Further it was stated in the prospectus that the first-respondent-company was incorporated by taking over the assets and liabilities of the partnership firm, which was engaged in the plantation of Tea, Coffee, Cardamom, Pepper etc. It was further mentioned that on the date of taken over of the firm by the company, the amount available at the credit of the partners in the capital account was Rs. 240 lakhs and equity shares of Rs. 240 lakhs had been allotted to the partners of the said firm. The firm had leasehold rights in the properties possessed by it at the time of taken over by the first-respondent-company. It is not clear from the records available with the third respondent as to whether the lease had been transferred in favour of the first-respondent. Annexure A-5 to the petition revealed that lease was not transferred in the name of the company. In this connection it is to be noted that the Central Bank of India had filed a suit O.S.No. 11 of 1994 for recovery of the secured loans given to the partnership firm amounting to Rs. 327 lakhs. It is stated in the auditors report of the first-respondent-company that the Central Bank of India had not approved the taken over of the partnership firm Muralidharan & Associates by the first respondent....'
13. In fact, paragraph 10 of the counter affidavit shows that third respondent has also suggested an inspection under Section 209A of the Act in 1997 itself as it needs detailed inspection. But it was not done because of the pre-occupation of the Inspecting Officer and filing of this case and investigation under Section 237 will be more detail. A statement of about 70 criminal cases pending against the company under Section 73(2B) of the Act was also filed by the third respondent. Statements in the counter filed by the third and fourth respondents show that it is a case where deeper investigation is warranted. We are not reiterating the averments of the third respondent. The Tribunal will be revealed the investigation. But there are prima facie materials to order a declaration for investigation.
14. On these prima facie facts, the learned Company Judge held as follows:
'All these facts and materials on record clearly establish that there are sufficient materials available on record in support of the various allegations made by the petitioner in the petition regarding the mismanagement of the first respondent, diversion of funds, failure to comply with the statutory obligations etc. warranting a deeper probe into the affairs of company .. .'
On the basis of my finding that there are sufficient materials on record warranting an order under Section 237(a)(ii) of the Companies Act to direct the fourth respondent to investigate into the affairs of the company as provided under Section 237(a) of the Companies Act. Hence this petition is allowed. The fourth respondent is directed to appoint one or more competent inspectors to investigate the affairs of the first-respondent-company under Section 237(a) of the Companies Act and to report within a specified time limit.. .'
Thus, the company court on consideration of the materials found that a deeper probe is necessary and passed an order declaring that affairs of the company ought to be investigated by an inspector appointed by the Court itself.
15. We are of the opinion that there are sufficient materials for the company judge to pass the above order. In any event, when the company court passed the above order on materials available in the case, on the facts of this case it cannot be stated that an interference by the appellate court is warranted. This is an appropriate case where discretionary order has been passed by the Court by exercising powers under Section 237(a)(ii). No interference is called for.