2019] 167
Neither the judgment of Bhagwati J. nor the observations in Elder (supra) are capa-
ble 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 received the notice of the Board meeting. It was held that since
it was not shown that any prejudice was occasionedhave thereby or that Elder could
bought the shares had he been present, no complaint of oppression could be
entertained merely on the ground that the failure to give notice of the Board meeting
was an act of illegalityto. The true position is that an isolated act, which is contrary
vi^ ollaatwe,^ dmay^ not^ necessarily^ and^ by^ itself^ support^ the^ inference^ that^ the^ law^ was^
and^ with^ a^ mala fide^ intention^ or^ that^ such^ violation^ was^ burdensome,^ harsh^
con^ tewxrt,ongful.^ But^ a^ series^ of^ illegal^ acts^ following^ upon^ one^ another^ can,^ in^ the^
tion,^ lead^ justifiably^ to^ the^ conclusion^ that^ they^ are^ a^ part^ of^ the^ same^ transac-
who^ mof^ which^ the^ object^ is^ to^ cause^ or^ commit^ the^ oppression^ of^ persons^ against^
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
a
Judge
which
is
contrary
to
law
will^
not
normally
support
the
inference
that
he
is
biased;
but
a
series
of
wrong
or
illegal^
orders
to
the
prejudice
of
a
party
are
generally
accepted
as
supporting
the
inference^
of
a
reasonable
apprehension
that
the
Judge
is
biased
and
that
the
party
complaining^
of
the
orders
will
not
get
justice
at
his
hands.
52. It is clear from these various decisions that on a true construction of Section
(^397) of, an unwise, inefficient or careless conduct of a Director in the performance
his duties cannot give rise to a claim 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 shareholderIt.
s^ ugmgaeys^ tbeed^ mentioned^ that^ the^ Jenkins^ Committee^ on^ Company^ Law^ Reform^ had^
by^ the^ substitution^ of^ the^ word^ ‘Oppression’^ in^ Section^210 of^ the^ English^ Act^
to^ the^ words^ ‘unfairly^ prejudicial’^ in^ order^ to^ make^ it^ clear^ that^ it^ is^ not^ necessary^
le^ gsalhow^ that^ the^ act^ complained^ of^ is^ illegal^ or^ that^ it^ constitutes^ an^ invasion^ of^
datio^ rnights^ (see^ Gower’s^ Company^ Law,^4 th^ edn.,^ page^668 ).^ But^ that^ recommen-
in^ was^ not^ accepted^ and^ the^ English^ Law^ remains^ the^ same^ as^ in^ Meyer^ and^
(^ Re H.R. Harmer Ltd.^ [^1959 ]^ WLR^62 as^ modified^ in^ Re Jermyn St. Turkish Baths
supra
).
We
have
not
adopted
that
modification
in
India.
111.
Whether
one
looks
at
the
matter
from
the
point
of
view
expressed
by
this
Court^
in
Nanalal Zaver
(AIR
1950
SC
172 )
or
from
the
point
of
view
expressed
by
the^
Privy
Council
in
Howard Smith
,
( 1974
AC
821 ,
831 )
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 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 shareholdersargument. We must, therefore, reject Shri Seervai’s
in^ that^ in^ the^ instant^ case,^ the^ Board^ of^ Directors^ abused^ its^ fiduciary^ power^
deciding upon the issue of rights shares.’
(Emphasis
supplied).
69.
Reliance
has
also
been
placed
on
a
decision
of
this
Court
in
Sangramsinh
(P.) Gaekwad
(
supra
)
in
which
this
Court
has
observed:
“ 196. The Court in an application under Sections 397 and 398 may also look to the
conduct of the parties. While enunciating the doctrine of prejudice and unfairness
Ram Parshotam Mittal
v.
Hotel Queen Road (P.) Ltd. (SC)