Karnataka High Court
Rakhra Sports Private Ltd. And ... vs Khraitilal Rakhra And Others on 1 January, 1800
Equivalent citations: 1993 76 CompCas 545 Kar, ILR 1993 KAR 920, 1992 (3) KarLJ 622
Author: S Bhat
Bench: K S Bhat, N Bhat
JUDGMENT Shivashankar Bhat, J.
1. The appeal is by three of the respondents in the company petition whereby the present respondents Nos. 1 and 2 had approached the court under sections 397, 398 and 433(f) of the Companies Act, 1956 ("the Act" for short). The parties will be referred hereinafter with reference to their rankings in the company petition. The reliefs sought by the petitioners are :
"(a) Declaring that minutes as recorded in the meeting of the board of directors purported to have been held on November 14, 1987, November 28, 1987, February 13, 1988, are illegal, improper and be deleted from the minutes book of the meeting of the board of directors ;
(b) Declaring that no meeting was held pursuant to the meeting notices dated March 19, 1988, May 14, 1988 and July 26, 1988 on March 28, 1988, May 25, 1988, and March 6, 1988, or any other date and even if any such meeting was held, that the same is non est. in the eye of law;
(c) Declaring that petitioners continue to be directors of the first respondent-company ;
(d) Declaring that the purported co-option of the fourth respondent as a director of the first respondent is illegal and non est in the eye of law ;
(e) Declaring the fifth respondent not to take on record From No. 32 filed by respondent No. 2 on August 19, 1988, purporting to notify that fifth respondent that petitioners Nos 1 and 2 had vacated their office as directors of the first respondent-company pursuant to section 283(1)(g) of the Companies Act and that the fourth respondent had been co-opted as a director of the first respondent-company ;
(f) Issuing an order of permanent injunction restraining respondents Nos. 2 and 3 from interfering with the rights of the petitioner to act as directors of the first respondent-company;
(g) Issuing an order of permanent injunction against the fourth respondent from acting as director of the first respondent-company.
(h) Directing respondents Nos. 2 and 3 of the purchase shares of petitioners in the first respondent-company at a value of Rs. 1,000 per share or directing respondents Nos. 2 and 3 to sell their shareholding of the first respondent-company to the petitioners at the same value of rs. 1,000 per share.
(i) If this Hon'ble court is pleased to hold that the facts and circumstances do not warrant any feasible order under sections 397, 398 read with section 402 of the Companies Act, alternatively, it is prayed that this Hon'ble court may be pleased to order that the first respondent-company, Messrs. Rakhra Sports Private Limited, No. 6, Commercial Street, Bangalore-560 001, be wound up on the ground that it is just and equitable to do so under section 433(f) of the Companies Act, 1956 ;
(j) Grant such other order or orders as this Hon'ble court may deem fit to grant on the facts and circumstances of the case including award of costs."
2. The learned company judge has valued each share at Rs. 930.85 and directed respondents Nos. 2 and 3 to buy the shares of the petitioners at the said rate, failing which the petitioners were permitted to purchase the shares of respondents Nos. 2 and 3 at the same rate.
3. The first respondent-company was incorporated in the year 1983. There is no dispute in the instant case that, earlier the petitioners and respondents Nos. 2 and 3 were carrying on the business as partners ; earlier thereto, the business seems to have been carried on by the two brothers, C. L. Rakhra and B. L. Rakhra ; still earlier, it seems the business was started only by C. L. Rakhra in the year 1932. There is also no dispute that the nominal share capital of the company in question is Rs. 5 lakhs divided into 5,000 equitable shares of Rs. 100 each. The issued and subscribed share capital Rs. 2,50,000 of 2,500 equity shares of Rs. 100 each. The petitioners own 50 per cent. of the issued shares while the other 50 per cent. is owned by respondents Nos. 2 and 3.
4. The petitioners aver that the business called Rakhra Sports Company was started by C. L. Rakhra and his brother, B. L. Rakhra, in the year 1932. Respondents Nos. 2 and 3 are the sons of C. L. Rakhra, while the first petitioner is the son of B. L. Rakhra being the wife of Vedaprakash Rakhra, as son of B. L. Rakhra. There was a partnership between the two brothers aforesaid and after the death of C. L. Rakhra, the second respondent was inducted as a partner in his place. Similarly, on the demise of B. L. Rakhra, the second petitioner was inducted as a partner. The firm has been dealing in sports goods and is located in Commercial Street, Bangalore. For a few number of years there were four partners, that is to say, the two petitioners and respondents Nos. 2 and 3. They decided to convert the firm into a private limited company. Consequently, the company in question was incorporated on December 2, 1983. The main objects to be pursued by the company on its incorporation, as stated in the memorandum of association, includes :
"To take over as a going concern, the partnership firm "Rakhra Sports Company' situated at No. 6, Commercial Street, Bangalore 560 001, as at the assets and liabilities at book value, as reflected in its balance-sheet drawn as on that date, and to pay the vendors thereof by allotment of equity shares treated as fully paid up in the company."
5. The erstwhile partners became the directors of the company. The articles of association states that the members of the company shall be of two family groups, "family group-A" shall consist of Krishnakumar Rakhra (second respondent), etc., and "family group-B" shall consist of the first petitioner, etc. The idea is to clearly maintain the distinction between the members belonging to the branch of C. L. Rakhra and the branch of B. L. Rakhra. According to the petitioners, the first directors shall be permanent directors and there is no dispute that the quorum for a meeting of the board of directors shall be three directors which ensures that at least one member belonging to each group will be present at the Board meeting. The banking arrangements also indicate that each group will have a say in the matter of issuing cheques or in the borrowings. The petitioners further state that in February , 1985, the company acquired additional premises on lease which are situated in Bishop Cotton School's Complex, Residency Road, Bangalore (hereinafter referred as "Cotton Complex"). The new business is done in the new leasehold Premises under the style of "Rakhra's Super Sports". An advance of Rs. 43,890 was paid towards the lease and the monthly rent was Rs. 4,389. The business commenced in Cotton Complex with effect from January 5, 1986. The averments in the company petition further show that there was a dispute between the parties subsequently in the year 1987, as to whether the new business at Cotton Complex should be continued or not in view of the loss incurred in the said business. The petitioners seem to have suggested the continuation of the business or to hand over the leasehold to the first petitioner wherein he would start a new business of his own. The petitioners assert that the new business was not in sports goods and, therefore, the question of any competition with the company's business would not arise. The petitioners further assert that certain meetings of the board were held without due notice to the petitioners and that the minutes of the said meetings were wrongly recorded in the minutes book. Subsequently, respondents Nos. 2 and 3 filed Form No. 32 declaration before the Registrar of Companies stating that the fourth respondent was co-opted as a director consequent upon the vacancies caused by the failure of the petitioners to attend three consecutive meetings. The petitioners asserts that there was a total loss of mutual trust which was the very essence of the understanding between the parties in the matter of business of the first respondent-company. Certain instances are given in the company petition in this regard. It is unnecessary to detail the averments in the company petition in view of certain events which happened in the course of this litigation. The second respondent as the chairman of the company had a casting vote and this mattered mush when the two groups fell apart.
6. The petitioners, however, assert that there was a complete deadlock in the management of the company and the business of the company could not be carried on since the quorum for a valid board meeting was absent. "Mutual trust" also has been lost. The petitioners also state that the winding up of the company would unfairly prejudice the rights of the parties though respondents Nos. 2 and 3 are conducting the affairs of the company in a manner prejudicial to the interests of the company. The exclusion of the petitioners from the management and control of the company and induction of the fourth respondent as a director, who is a total stranger to the family, are all instances warranting invocation of the provisions of section 398 of the Act. The petitioners also, alternatively, pray for the winding up of the company in case an appropriate order under section 397 and 398 cannot be made.
7. The respondents in their objection statement assert that the business was initially started by C. L. Rakhra in or about the year 1932 as his proprietary concern and in the year 1946, B. L. Rakhra came to Bangalore as a refugee from Pakistan and thereafter he was taken as a partner "out of sheer pity". The third respondent joined the business as a partner in the year 1957-58 and the first petitioner became a partner in the year 1960. C. L. Rakhra died in the year 1975. In the year 1977, the second respondent who was serving in the Indian Air Force retired and joined the firm as a partner. After the death of B. L. Rakhra his daughter-in-law, the second petitioner, was taken as a partner. In the year 1983, the company came into existence by incorporation. It is found in the objection statement of these respondents Nos. 2 and 3 that the second respondent had a casting vote as the chairman of the company. They further assert that the petitioners attended some of the meetings, drew sitting fees but later asserted that they did not attend the meetings and on the same day of drawing the sitting fees, they were returned. They denied the allegation that the petitioners are sought to be excluded from the management and that there can be no deadlock in the affairs of the company because the second respondent respondent as the chairman had the casting vote and, therefore, the board of directors as well as the general body meeting could decide, effectively, any question coming up before them.
8. There is no dispute that the parties tried to resolve their dispute by resort to the sale or purchase of the shares belonging to the other group. For this purpose, the company's auditor was requested to evaluate the share value.
9. In this connection, articles 4 and 5 of the articles of association are relevant which are reproduced below :
"4. No member shall transfer his/her shares, save with the previous sanction of the directors, and the directors may refuse to recognise any transfer for which they need not state.
5. Any shareholder desiring to transfer his share shall apply to the directors in the prescribed form and notifying the number of shares, share value and the name of the proposed transferee. In case of disputes regarding the fair value of shares, it shall be decided or fixed by the company's auditor. The value so fixed shall be deemed to be fair value. A member who wants to transfer his/her shares by way of sale to any person who is not a member of the company can do so only when the existing members are not willing to purchase the same. On receipt of intimation from the existing members whether any of them is interested in the purchase of those shares. The board shall, for this purpose, offer the shares for sale to the members, in an equitable manner and in proportion to their existing shareholdings, by giving a month's time for the members to accept the offer in full or in part. If none of them or same only are interested in the offer and all or some of the shares remain unaccepted, the board shall forthwith intimate that fact to the transferor-member who can afterwards transfer these unaccepted shares to any person in the immediate family group of other members representing the `B' family."
10. Messrs. Ramaswamy and Company admittedly is the auditor of the company. It seems that the company's auditor was requested by both groups to take the assistance of another auditor by name Shah to fix the value of the shares. The record discloses that, according to messrs. Ramaswamy and Company, each share was valued at Rs. 326 as per the said auditor's letter dated April 27, 1988. However, the other auditor, Shah, seems to have valued each share at Rs. 1,000. At this juncture it is necessary to refer to the events that happened by virtue of the orders of the court, after filing of this company petition.
11. The company petition was filed in August, 1988. Thereafter, the matter came before the learned company judge on various dated regarding interim orders. On september 16, 1988, the learned company judge (Bopanna J.) heard learned counsel for the parties about the interim arrangement and on that date the parties seem to have agreed upon a formula to settle the dispute inter se. The learned company judge, in his order dated September 16, 1988, stated that :
"On the material placed, it appears to me that this dispute is amenable to an amicable settlement out of court. It was suggested by this court whether the claim of the petitioners could be settled on payment of the present market value of the shares held by the them as the parties were thinking on these lines as is evident from two valuation reports furnished by the respective groups.
According to the petitioners, the value of the equity shares in the first respondent company would be in the region of Rs. 1,000 per share. According to the second respondent's group, in terms of the report furnished by their auditor, it is about Rs. 326.80 per equity share. The differential gap in this valuation could be resolved only by getting the shares valued by a third valuer, who is not connected either with the petitioner or with the second respondent's group. But pending such adjudication by third valuer, the petitioners had offered to pay before this court a sum of Rs. 1,000 per share forthwith and settle the claims of the second respondent's group ; but the second respondent's group is not prepared to accept that offer though the valuation of the petitioners' valuer is on the higher side. But they made a counter-offer that they would purchase the petitioner's share by making a down payment of Rs. 600 per share and thereafterwards seek the correct valuation of the share by a third valuer. They have also sought for time till September 30, 1988, to make this payment. As a preliminary step to effect a settlement between the parties it is ordered that the second respondent's group shall pay the petitioners tentatively a sum of Rs. 600 per share and that amount shall be received by the petitioners in part satisfaction of their claim in this company petition. After such payment, the valuation of the shares shall be made by a reputed firm of auditors acceptable to both the parties. The choice of the firm is left to the parties and they shall make appropriate submissions in this respect on the next date of hearing.
However, it is contended by learned counsel for the respondents that this payment should be without reference to the claim of the petitioner to the leasehold right of the premises that the company had obtained in Cotton Complex, situated on Residency Road, Bangalore. Whether this condition shall be imposed on the petitioner will be considered by this court in exercise of its powers under the provisions of section 402 of the Companies Act. Payment of Rs. 600 per share would be subject to the order of this court on this aspect of the case at the time of recording the final compromise between the parties."
12. On September 30, 1988, the matter again came up before the same learned company judge, on which date a sum of Rs. 7,50,000 wa aid to the petitioners by respondents Nos. 2 and 3 (respondents Nos. 2 and 3 and their group will be referred hereinafter as the "contesting respondents" for the sake of convenience). In the order of the learned company judge, it is stated that these payments are subject to adjustment against the valuation of shares to be made by the auditors to be appointed by the court. A list of auditors had been furnished by the respective groups, out of whom the learned company judge selected Messrs. Brahmiah and Company (suggested by the contesting respondent group) and Messrs. B. K. Ramadyani and Company (suggested by the petitioners) for making the necessary valuation and the auditors were to make the valuation and the auditors were to make the valuation independently of each other. Thereafter, the learned company judge observed :
"The reports of these auditors will be subject to the final order of this court on the question of valuation. Payments made today aggregating to Rs. 7,50,000 will also be subject to the final valuation to be made on the basis of the auditor's report."
13. The learned company judge further stated that :
"Learned counsel for the petitioners submitted that necessary instructions made to be issued to the auditors regarding valuation of the shares in question. I think the proper course to be adopted is to direct both the parties to file their respective memo of instructions to the auditors not on the mode of valuation but on the assets of the company to be taken into consideration for the purpose of valuation."
14. It is not necessary to refer to other directions in this order.
15. Thereafter, the two valuers gave their respective opinions. The report of Brahmiah and Company is dated October 31, 1988. The principles applied are generally stated by the auditors in the report such as the restrictions imposed by the articles of association regarding the transfer of shares, provision for resolving the dispute regarding the fair value of shares by the company's auditors, etc. For this purpose, the profit to be adopted for valuation was estimated as follows :
_________________________________________________________________________
Accounting Turnover Gross profit Expenses Profit
year debited to before tax
P&L account
__________________________________________________________________________
[deleted],26,[deleted],11,[deleted],72,[deleted],101
[deleted],89,[deleted],52,[deleted],22,[deleted],004
[deleted],69,[deleted],75,[deleted],97,186 Loss 21,786
[deleted],49,[deleted],75,[deleted],04,[deleted],71,237
___________ ___________ ____________ ___________ _____________
Total for
86-87 and 64,19,[deleted],50,[deleted],01,338 2,49,451"
87-88
__________________________________________________________________________
16. The increased turnover during the year 1987-88 was found to be due to the large orders received in the previous year amounting to Rs. 3,69,768 and one-time orders for Rs. 61,248 with a higher margin of profit. Therefore, the auditors says :
"Hence it may not be correct to adopt the turnover and gross profit of 1987-88 as a respective year. Instead it will be fair to take the average of the turnover and gross profit for the two years, 1986-87 and 1987-88."
17. The auditors point out that all the directors are whole-time directors in respect of remuneration by way of salary, sitting fees and medical expenses. Therefore, for purpose of taking the profit the profit for valuation purposes, one-third of the remuneration paid to the directors were excluded again which came to Rs. 44,213. Thereafter, the report reads thus :
"(c) The profit of the company adopted for valuation of shares is as follows :
Rs.
Turnover (average for 1986-87 and 1987-88 as above) 6,25,394
Less : Actual expenses (average for 1986-87 and
1987-88 as above) 5,00,669
___________
1,24,725
Less : Income-tax at 63% 78,576
___________
46,146
Add : One-third of payments to directors 44,213
____________
90,362
____________
A safe investment in deposits with scheduled banks fetches 11 per cent. On capitalisation at 11 per cent. of profit of Rs. 90,362, the value of one share will be -
90,362 / 11 X 100 /2,500 = 328"
18. The said auditors thereafter proceeded to apply the "intrinsic value method" and observed as follows :
"Intrinsic Value Method :
The assets comprise current assets and office furniture and fittings which are subject to depreciation. Hence as per wealth-tax valuation rules the book value of assets is adopted. However, the value shown against `miscellaneous expenditure' is excluded. The intrinsic value of each share of the company is as follows :
Rs.
Value of assets per balance-sheet (excluding the balance
of `Miscellaneous expenditure' Rs. 5,207) 9,33,018
Less : Value of liabilities per balance-sheet 5,92,980
__________
Net worth of the company 3,40,038
__________
Value of one share is 3,40,038 /2,500 = Rs. 136"
19. The auditors note that the business premises are in a good business locality and could be passed on to a third party at the prevailing trade practice for a consideration of Rs. 30 lakhs. However, the company was a going concern and the possibility of earning `pagari' or premium did not arise and hence not considered. The leasehold rights were not valued on the ground that there was a stipulation against sub-leaning the premises and that "the present profit earned is partly due to the lower rentals, but for which the profit would have been lower, and the value of the share under the profitability method reduced". The current assets such as per the book value. Regarding goodwill, the auditors say that it should be considered. However, the exact value of the goodwill is not forthcoming in the report. This auditor concludes that the value of each share is Rs. 328 as on March 31, 1988, as per the profitability method as already stated. Though, this auditor refers to the current assets and the goodwill, no reference is made to them in terms of value. Similarly the value of the leasehold rights also is not forthcoming. The gross profit for the four years at Rs. 12,50,789 is divided by two to arrive at the average for two years at Rs. 6,25,394. From this the actual expenses of Rs. 5,00,669 is deducted and then Income-tax of 63 per cent. is further deducted.
20. The other auditor, Messrs. Ramadhyani and Company, gave their report on November 16, 1988. After discussing the various methodologies, they proceeded to give the valuation, first on maintainable profits basis. They observed that the profitability trend during 1988-89 is the same as that prevailing during 1988-89 is the same as that prevailing during the previous year and that the high incidence of profit during 1987-88 was due to execution of large one-time orders which are not likely to be repeated in future years. They also noticed that is case the lease at Cotton Complex is terminated there will be a reduction in the overheads by about Rs. 60,000. The auditors thereafter proceeded to give weightage of three to the profits of the year 1987-88, while for the previous two years after giving the average profits weightage of one was given. In this process weightage average was arrived at as. Rs. 2,07,372. A sum of Rs. 50,000 was added out of the total remuneration payable to the directors. This Rs. 50,000 was added to arrive at the maintainable profits. The report thereafter states thus :
"4.11. In the above circumstances, the maintainable profits are calculated as under :-
Rs.
(a) Weighted average profits as per paragraph 4.8 above 2,07,372
(b) Add : remuneration to directors
(refer para 4.10 above) 50,000
___________
2,50,372
(c) Income-tax thereon at 63 per cent. (including
surcharge) of the profits as per para 4.8 above.
We understand that no portion of remuneration paid
to directors have been allowed in the income-tax
assessments of the company. 1,30,644
____________
(d) Maintainable profits of the company after tax 1,26,728"
____________
21. These auditors stated that a fair rate of capitalisation ought to be 15 per cent. and thus arrived at the value of an equity share at Rs. 338. Thereafter, the break-up value method was applied. For this purpose, goodwill as well as the value of the lease hold interest were valued. While the value of the leasehold interest was Rs. 1.43 lakhs, the value of the goodwill was arrived at Rs. 3 lakhs. Ultimately, the break-up method value was given as follows :
"5.6 In the above circumstances, the value of an equity share of the company on the break-up value method is worked out as under :
Rs.
(a) Net worth as per para 5.1 above 3,45,245
(b) Value of leasehold rights as per paragraph 5.4 above 12,60,000
(c) Value of goodwill of the company as per paragraph
5.4 above 3,00,000
____________
19,05,245
(d) Less : Value of accrued gratuity liability (not
provided in the books) as per paragraph 5.5
above 5,000
_____________
19,00,245
_____________
Number of equity shares 2,500
Break-up value per share 760"
22. The auditors proceeded further to evolve another formula of their own by giving weightage of 2 to the maintainable profits resulting in Rs. 676 and weightage of one to the break-up value method leading to the figure Rs. 760 and the total profit of Rs. 1,436 was divided by the total weightage of three which gave the weighted average as Rs. 479. Thereafter, the auditors proceeded to refer to some observations of justice Williams regarding the controlling interest and its valuation. A few other factors like telephone connections "pending orders", benefits arising out of long association, were referred to, and they concluded :
"Taking these factors into account, we are making up the value of an equity share arrived at as per paragraph 6.3 above by 50 per cent. Such enhanced value will work out to Rs. 719 per share."
23. The report of Messrs. C. K. S. Rao and Associates, Consulting Engineers and Architects, is enclosed to the report of Messrs. B. K. Ramadhyani and Company.
24. The petition came up before the learned company judge on July 7, 1989. The learned judge opined that the contesting parties have not arrived at any settlement and that this court is not bound in law or otherwise to take up the task of the value and fix it ;
"Therefore, that approach should be given up in so far as it relates to valuation. The orders made on September 16, 1988, and September 30, 1988, are recalled. The payment made subject to the stipulation contained in the order of September 30, 1988, shall be returned to the respondent, i.e., a sum of Rs. 7,50,000."
25. The company petition was ordered to be brought up for enquiry hereafter.
26. The above order was challenged in appeal in O.S.A. No.15 of 1989. The Division Bench reversed the order of the learned company judge dated July 7, 1989. The judgment of the Appellate Bench is dated August 16, 1989. The relevant observations of the Appellate Bench as as follows :
"On giving our thoughtful consideration to the entire matter, we find that those two orders, passed in the presence of the parties and with their consent, could not be recalled just because the parties were not willing to purchase the shares of others at the price quoted by each one of them. By virtue of the earlier orders, independent valuers had been appointed to determine the value of the shares. They have also submitted their report. No new fact has come into existence which would warrant the recalling of the earlier orders. In this view of the matter, we find that the impugned order of the learned company judge cannot legally be sustained. Consequently, we allow this appeal and set aside the order of the learned judge dated July 7, 1989."
27. The resultant position is that the earlier two orders made by the learned company judge are to be given effect to on the basis that they are consent orders and the parties are bound by the terms stated in the said orders. After the above O. S. A. was disposed of, the present order under appeal came to be made.
28. The learned company judge proceeded to discuss the question raised before him observing at para 60 of his order :
"This is not a case where the petitioners are selling the shares to the respondents and the respondents are purchasing the shares only to invest. In the case of investment the investor has to see what would be the dividend only out of the net profit after deducted as his been done by the company's auditor, Messrs. Ramaswamy and Co., for this is a case in which the value of the share of the company is to be determined as if the company is under `national liquidation', but in reality it may not."
29. Thereafter, at para 70, it was held :
"It is an undisputed fact that the court has passed orders on September 16, 1988, and September 30, 1988, and directed the petitioners to sell their shares to respondents Nos. 2 and 3 and by consent of parties two valuers have been appointed to value the shares. This has been done without going into the question who is the oppressor and who is the oppressed among those two groups. It is also an undisputed fact that the petitioners as well as respondents Nos. 2 and 3 are having equal shares of 50 per cent. each. The two valuers have adopted two different methods for valuing the shares of the company which have not been found favour with both the petitioners and respondents Nos. 2 and 3. To my mind the methods adopted by the valuers to arrive at the valuation of the shares of the company are not totally wrong or incorrect. In fact, certain required factors have been taken into consideration. The two valuers ought to have, while adopting the methods of valuation of shares, viz., the profitability method and the asset method, viewed from the angle, the company was under `national liquidation" and the purchaser-respondent would get 100 per cent. control of the company which is a `valuable commodity'. Had the valuers taken into consideration all the items including the factor that one of the groups of purchasers get cent. per cent. controlling interest in the company, they would have arrived at quite a different value of the share which would be a somewhat fair value. It is true in a matter like this it is difficult to arrive at a mathematical precision in valuation of shares. Since the two valuers have taken both the profitability and asset methods (break-up method) and arrived at two different figures as to the valuation of the share which are not accepted by either party, except taking such figures from the valuation report they have claimed rs. 1,200 (petitioner) and Rs. 326 (respondents) as the correct valuation of the share. To resolve this dispute, this court will have to scan through the valuation report and adjust the equities between the parties by fixing the fair price of the shares."
30. The conclusion arrived at para 73 also requires reproduction :
"Both the valuers have adopted the profitability method. Messrs. Ramadhyani and Co. has taken the maintainable profit of Rs. 2,51,585 without adding back Rs. 60,000 being the course of Messrs. Rakhra Sports Pvt. Ltd., at Bishop Cottons ; and if capitalised the said maintainable profit at 11 per cent. the value of the share will be at 914-85 rupees per share. This is clearly shown at the working-sheet referred to above. Taking the maintainable profit at Rs. 1,25,752 as determined by Messrs. Brahmayya and Co., adding thereto both Rs. 44,213 (excess remuneration and rs. 60,000 (savings of loss of Messrs. Rakhra Sports Ltd.,) capitalising it at 11 per cent. the value of the shares will be Rs. 832.50 as shown in the chart referred to above. In these two methods the factor as to the chart referred to above. In these two methods the factor as to the purchaser of the shares getting cent. per cent. control of the company has not been taken into consideration. If that is added then both the valuations of the share referred to above would be higher than what have been indicated in their respective valuation reports.
To my mind it appears, the valuation of the share at Rs. 914.85 per share as indicated above based on the maintainable profit as per Messrs. Ramadhyani and Company at Rs. 2,51,585 and capitalising at 11 per cent. would be the fair value by adding to it another sum of Rs. 16 business of special circumstances of this case, viz., that complete control of the company is being given to respondents Nos. 2 and 3 `A' group of the shareholders, i.e., the fair share value would be fixed at Rs. 930 per share."
31. Learned counsel for the appellants and the respondents have reiterated their contentions. While Mr. Udaya Holla emphasised the principles stated by the Supreme Court in Mahadeo Jalan's case , as governing the valuation of shares, Mr. Raghavan contended that the court should apply various methodologies to evaluate the respective interests and the highest value should be paid to the interest of the outgoing shareholders.
32. There can be no doubt that the first respondent-company is in the nature of a "quasi-partnership" ; though initially started as a proprietary concern, the business was continued for a long period by the partners (who were direct brothers and the members of their families) ; this firm was converted into a private limited company subsequently. The articles of association of the company restrict the transfer of shares, to prevent the shares from going outside the family members ;the shareholders are grouped as "A" and "B" to represent the respective branches of the two brothers.
33. Having regard to the decision of the Court of Appeal in Yenidje Tobacco Co. Ltd., In re [1916] 2 Ch 426 and of the House of Lords in Ebrahimi v. Westbourne Galleries Ltd. [1973] AC 360, a company of the kind before us (the first respondent) could be called a quasi- partnership and, therefore, when a set of shareholders seek to go out of the company or are to be sent out of the company, the court's power to apply the just and equitable consideration (under sections 397, 398 and 402) of the Companies Act is quite wide since considerations governing section 433(f) could equally be attracted to the situation. In fact in Yenidge Tobacco Company's case [1916] 2 Ch 426, the Court of Appeal pointed out that when there are only two persons interested (in the instant case before us, it is "two groups") and a deadlock is created, it is just and equitable that the company should be wound up.
34. At page 432, on learned judge observed :
"It has been urged upon us that, although it is admitted that the `just and equitable' clause is not to be limited to cases ejusdem generis, it has nevertheless been held according to the authorities not to apply except where the substratum of the company has gone or where there is a complete deadlock. Those are the two instances which are given, but I should be very sorry, so far as my individual opinion goes, to hold that they are strictly the limits of the `just and equitable' clause as found in the Companies Act. I think that in a case like this we are bound to say that circumstances which would justify the winding up of a partnership between these two by action are circumstances which would induce the court to exercise its jurisdiction under the just and equitable clause and to wind up the company.
Astbury J. dealt with this case, as it seems to me, in most satisfactory way, and at the end of his judgment he says that he tried to suggest a solution : he suggested that the to should continue or try to continue for six months to see if they could get on better or that they should appoint one or more additional directors to assist them in the business : but this neither would do. If even there was a case of deadlock, I think it exists here ; but, whether it exists or not, I think the circumstances are such that we ought to apply, if necessary, the analogy of the partnership law and to say that this company is now in a state which could not have been conteplated by the parties when the company was formed and which ought to be terminated as soon as possible. We are told that we ought not to do it because the company is prosperous, making large profits, rather larger profits than before the disputes became so acute. I think one's knowledge of what one in the streets is sufficient to account for that, having regard to the number of cigarettes that are sold, and we can take judicial notice of that in judging whether the business is much larger than it was before. Whether such profit would be made in circumstances like this or not, it does not seem to me to remove the difficulty which exists. It is contrary to the good faith and essence of agreement between the parties that the state of things which we find here should be allowed to continue."
35. At page 435 , another learned judge pointed out :
"I am prepared to say that in a case like the present, where there are only two persons interested, where there are no shareholders other than those who, where there are no means of overruling by the action of a general meeting of shareholders the trouble which is occasioned by the quarrels of the two directors and shareholders, the company ought to be wound up if there exists such a ground as would be sufficient for the dissolution of a private partnership at the suit of of one of the partners against the other. Such ground exists in the present case. I think, therefore, that it is just and equitable that the company should be wound up."
36. This approach was approved by the Supreme Court is Hind Overseas Private Ltd. v. Raghunath Prasad Jhunjhunwalla . However, on facts, it was held by the Supreme Court that the company before the court was not in the nature of a quasi- partnership. The Supreme Court held, at page 571 (at page 99 of 46 Comp Cas) :
"In Ebrahimi's case [1973] AC 360 (HL), the company which was first formed by the two erstwhile partners, Ebrahimi and Nazar, was joined by Nazar's son, George Nazar, as the third director and each of the two original shareholders transferred to him 100 shares so that at all material times Ebrahimi held 400 shares, Nazar 400 shares, Nazar 400 shares and George Nazar 200 shares. The Nazars - father and son - thus had a majority of the votes in general meeting. Unit the dispute all the three remained directors. Later on an ordinary resolution was passed by the company in general meeting by the votes of Nazar and George Nazar removing Ebrahimi from the office of director. That let to the petition for winding up before the court.
The following features are found in Ebrahimi's case [1973] AC 360 (HL) :
(1) There was a prior partnership between the only two members who later on formed the company.
(2) Both the shareholders were directors sharing the profits equally as remuneration and no dividends were declared.
(3) One for the shareholders' son acquired shares from his father and from the second shareholder, Ebrahimi, and joined the company as the third shareholder director with 200 shares (100 from each).
(4) After that there was a complete ouster of Ebrahimi from the management by the votes of the other two directors, father and son.
(5) Although Ebrahimi was a partner, Nazar had made it perfectly clear that he did not regard Ebrahimi as a partner but regarded him as 9an employee in repudiation of Ebrahimi's status as well as of the relationship.
(6) Ebrahimi though ceasing to be a director lost his right to share in the profits through director's remunerations retaining only the change of receiving the dividends as a minority shareholder.
Bearing in mind the above features in the case, the House of Lords allowed the petition for winding up by reversing the judgment of the court of appeal and restoring the order of Plowman J.
None of the parties questions the principles as such adumbrated by the House of Lards in Ebrahimi's case [1973] AC 360 or even those in the earlier Yenidje's case [1916] CH 426 and indeed these are sound principles depending upon the nature, composition and character of the company. The principles, good as they are, their application in a given case or in all cases, generally, creates problems and difficulties."
37. The facts of the instant case can lead to only one conclusion that the business concern of the parties hereto was being carried on, in reality, by the parties as partners, in the garb of an incorporated company.
38. Though Mr. Holla would like us to hold that there cannot be any deadlock in the management of the company, in view of the casting vote of the chairman, we cannot do so. The management of a company and its effectiveness are not to be considered theoretically ; if Mr. Holla's submission is accepted, it will be ousting a group of shareholders, who actually has a 50 per cent. interest in the entire company.
39. Here, this theory of voting power need not detain us any further. In view of the two orders of the learned company judge dated August 16, 1988 and September 30, 1988, the contesting parties are precluded from contending otherwise than that one of the groups (petitioners) has to be paid by the other group (contesting respondents) so that the other group may continue to control to company thereafter. The only question to be considered in this appeal, is whether the shares where fairly valued by the learned company judge and if not, what value should be given to those shares. A few more facts may be referred to :
Before the petitioners fled the company petition, the parties had jointly requested the company's auditors, Messrs. Ramaswamy and Co., to value the shares. In this connection, Messrs. Ramaswamy and Co. was asked to discuss the matter with another auditor referred to as Shah. Obviously, there was disagreement as to the value amongst those two character accountants. V. S. Ramaswamy stated in his letter dated April 27, 1988, that the valued the shares of the company as a going concern. In his report he admits that goodwill of the company has to be taken note of for valuing the shares of the company as a going concern. By applying the so called "accountancy principles", the goodwill was values at Rs. 2,94,000. This is based on the average of the net profit for five years, multiplied by 3 1/2 to arrive at the goodwill. The estimated net profit of Rs. 84,000 was again capitalised by applying the multiple of 10 to apply the "capitalisation method". The resultant figure of Rs. 8,40,000 was against considered while proceeding to value the goodwill, as follows:
"Value of goodwill - Total value less net asset of the business.
= Rs. 8,40,000 (-) Rs. 6,00,000, paid-up capital + estimated profit for the year ended March 31, 1988 + Rs. 3,40,000"
Average value of goodwill = 2,94,00 + 3,40,000 ____________________ = Rs. 3,17,000 Valuation of goodwill as per pugri system was considered by him as not proper as the company is not starting a new business. Therefore, he concludes :
"In may considered view the fair value of the shares will be -
Paid-up capital + Expected profit in 1987-88 + goodwill -
2,50,00- + 2,50,000 + 3,17,000 = 8,17,000.
Value per equity shares = 8,17,000 ___________ = Rs. 326.80"
2,500
40. Thus, there was an amalgam of various elements which are normally considered separately to evaluate the value, under different methods. In other method adopted by Messrs. Ramaswamy and Co. is an amalgamation of the methods followed under the "super profit method", and the "asset method", by simplifying those methods. Shah, in his letter dated May 18, 1988, addressed to the first petitioner disagreed with the above valuation made by Ramaswamy and Company ; Shah suggested, to follow either of the two methods (i) yield method, or (ii) intrinsic value method. Under the "yield method" he considered the exceptionally high profit earned by the company during the year ending March 31, 1988, as indicative of the future trend and stated that " at least capitalising this by 10, he arrived at the company's worth (with issued shares of 2,500), as Rs. 25,00,000 ; therefore, each share was valued at Rs. 1,000. Under the "intrinsic value method", he pointed out that the balance-sheet of the company would not disclose the value of leasehold rights of the premises and that the value of existing business connections also should not be ignored. The leasehold interest in the premises at Commercial Street was valued at Rs. 30,00,000 and then without further details, he reiterated his valued at Rs. 30,00,000 and then without further details, he reiterated his valuation of the share at Rs. 1,000.
41. The two extreme valuations one by Ramaswamy and Co. (at Rs. 326.80_ and the other by Shah (at Rs. 1,000), naturally gave scope for extreme rivalry between the two sets of parties. The further two reports of Messrs. Brahmayya and Co. and Messrs. Ramadayani and Co. in no way contributed to soften the hard stand taken by the parties.
42. During the pendency of the proceedings before the company court, the petitioners started their own business concern. The contesting respondents were apprehensive of the new venture of the petitioners because, the latter was also using the business name of "Rakhra Stores". Therefore, the contesting respondents moved the court by filing Company Application No. 900 of 1990, to restrain the petitioners from using the words "Rakhra Stores" in their business concern. This application was allowed by an order dated June 8, 1990. The submission of the applicants that the company's name had a "goodwill" and that by virtue of two orders of the court dated September 16, 1988, and September 30, 1988, the respondents were to run of the company's business, and, therefore, the petitioners shall not use the name of the company, in their business concern called "Rakhra Sports and Agencies", was accepted. The court held :
"One of the questions involved pertains to the right to take over the company, by any one group of shareholders, in case, winding up of the company is not just and equitable. Already, the court has proceeded on this line, by directing the applicants to pay rs. 7 1/2 lakhs to the present respondents Nos. 1 and 2 and what balance should be payable is pending consideration. A perusal of the reports of the two auditors shows that the goodwill of the company is a relevant factor while valuing these shares. In fact, both sets of parties to not dispute this fact. Present respondents Nos. 1 and 2 in their main petition at para 34(h) have sought as one of the reliefs, the purchase of the shares of the applicants at Rs. 1,000 per share, or that the present applicants should be directed to see their shares to the former at the same rate. That the company as a going concern has its name as a substantial element in its goodwill cannot be denied and is not denied. In the submissions of the petitioners (i.e., present respondents Nos. 1 and 2 ) dated December 1, 1988, on the valuation made by Messrs. Brahmayya and Co., is attracted as it has failed to take note of the goodwill in its proper perspective. If the company is not to be wound up, its existing goodwill including its trade name has to be preserved.
If the trade name can be freely used by the parties without reference of the company and by those who are not likely to continue to do business in the company's name, the damage or injury likely t be caused to the company cannot be ignored."
43. Again, the court proceeded to say, -
"It is an admitted case that the company in question is a family concern, more in the nature of a partnership ; in fact, earlier it was a partnership firm, as per section 53 of the Indian Partnership Act, 1932, after a firm is dissolved (only in the absence of a contrary to the contrary between the partners) every partner may restrain any other partner may restrain any other partner from carrying on a similar business in the firm name or using any of the property of the firm for his own benefit, until the affairs of the company have been finally wound up ; but this does not affect the partner who bought the goodwill. As per section 14, properties of the firm includes goodwill of the business. Contract between the parties as to who should get the goodwill and hence it can be used on dissolution, is permissible and its terms enforceable.
Goodwill is an intangible asset, being the whole advantage of the reputation and connections formed with the customers together with the circumstances which make the connection durable. It is attributable, location and other features (vide Law of Partnership in India, By Desai, fifth edition, page 97). Assuming that Rakhra is a family name, the trade name `Rakhra Sports' having attained certain advantages and reputation, would certainly contribute to the value of the goodwill of the first applicant company. Even if the company is treated as a partnership, its trade name has a special significance to its partners and should be protected for the benefit of those who are to carry on the partnership business, as against those who are likely to go out of the concern. Those who are out of the firm should be allowed to exploit the trade name of the company for their own benefit own and they cannot be permitted to carry on business under a similar name which may erode and dilute the goodwill of the the company. It is immaterial that the company has no registered `trade mark' right in the name of `Rakhra Sports', and it is also immaterial that the company does not produce any goods. It is carrying on business and is shown to have acquired a reputation with a trade name of `Rakhra Sports'."
44. It was concluded, -
"Since the first respondent and his group are venturing afresh into the business, it does not matter to them what name they adopt for their trading purposes ; but adoption of a name, resembling that of the first applicant company, certainly would injure the applicants' interests."
45. The above order brings out clearly that, even according to the contesting respondents (who are the appellants before us) the company's name is part of its "goodwill" and is quite valuable to them and, therefore, cannot be given up by them.
46. Mr. Raghavan, learned counsel for the petitioners, pointed out that the petitioners offered to buy the shares of the respondents at Rs. 1,050 per share and that the entire offer made in the "submissions of the petitioners on the valuation reports filed by Messrs. Brahmayya and Co. and Messrs. B. K. Ramadhyani and Co." dated December 1, 1988, still holds good. The order stated in para 21 of the above submissions reads :
"Notwithstanding what is stated above, the petitioners reiterate :
(1) their offer to purchase the shares of respondents Nos. 2 and 3 in the first respondent-company at a value of Rs. 1,050 per share and are willing to let respondents Nos. 2 and 3 to have the benefit of premises of the first respondent at Cotton Complex.
(2) If it is the case of the respondents that the premises at Commercial Street, have no value, the petitioners are willing to sell their shares at the face value that is Rs. 100 per share and in turn take possession of the shop premises at Commercial Street and two godown premises at Golar lane, 1st Cross, Commercial Street, Bangalore.
(3) The petitioners are also prepared to accept Rs. 100 less, that is, Rs. 950 per share and the leasehold rights of Cotton Complex premises."
Can it be said that petitioners having offered the highest price should be allowed to purchase the shares of the respondents because, but such a sale of the respondent's shares, the latter would not suffer any fiscal injury ?
47. The two orders of the learned company judge made in September, 1988 (referred to already by us), proceed on the assumption that, in spite of the higher offer of the petitioners the respondents are to be allowed to purchase the shares of the petitioners at a "fair value" ; the question of bidding for the shares by the rival groups, by necessary implication, was ruled out and the parties consented to that situation. Therefore, what remains, is to find out the fair value of the shares of the petitioners to be sold to the respondents.
48. The learned company judge treated the company an in national liquidation, but, ultimately valued the shares, by capitalising the gross profit.
49. Mr. Udaya Holla Strongly relied on two decisions of the Supreme Court, wherein, for purposes of Wealth-tax and Gift-tax Act, equity shares had to be valued and the value of to be the "market value". The methodology applied in those cases is the only relevant to learned counsel there is no difference between the "fair value" and the "market value".
50. Mr. Udaya Holla submitted that the fair value can be only be the market value and that under section 7 of the Wealth-tax Act, an asset is valued on the basis of its market value ; valuation of shares, as assets, was considered by the Supreme Court in CWT v. Mahadeo Jalan and the principle enunciated therein, he to be followed in all cascases of valuation. The shares valued in the said case were the shares in private limited companies. The Supreme Court said, at page 1025 (at page 626) :
"In valuing shares of a limited company certain factors have to be taken into consideration. Firstly, a share is not a sum of money but is an interest measured by a sum of money and made up of various rights contained in the articles of association."
51. While considering the various factors likely to influence an investor in shares, the court held at page 1026 that (at page 628) :
"Where a purchaser or seller is considering the various factors for purchase or sale of shares in a company, the dominant factor determining the price he will pay or receive, as the case may be, is the yield."
52. However, there may be instances where profits of the company are not reflected in the dividends ; as to this situation, Supreme Court observed, at page 1027 (at page 629 of 86 ITR) :
"It profits are not reflected in the dividends which are declared and a low-earning yield for the shares is shown by the company which is unrealistic on a consideration of the financial affairs disclosed for that year, the Wealth-tax Officer can on an examination of the balance-sheet ascertain the profit earning capital of the concern and on the basis of the potential yield which the shares would earn, fix the valuation."
53. Green's Dealth is quoted in this represent, which reads (at page 629):
"Not infrequently the dividends represent only a small proportion of the company's profits and large sums are systematically accumulated in the form of reserves. It is important to remember in this connection that the interests of shareholders in unquoted companies often differ from those of investors in quoted shares, especially as respects dividend policy. Where the shares are held by a few individuals (particularly members of a single family, it will not necessarily be to their advantage to have the greatest possible amount paid out to them as dividends. Retention of the profits by the comapny may suit them better than the receipt of taxable dividends. A purchase of shares in a company which distributes only a small fraction of its profits is unlikely to prove attractive to an investor in search of current income, but the open market is by on means confined to such investors. It includes, for instance, the existing members of the company to whom the shares may be more valuable than to others and who may wise to exclude outsiders, and surtax payers whose gola is capital appreciation rather than current income."
54. Again, at page 409 (Green's Death Duties), it is observed :
"A valuation by reference to earnings is apposite as respects unquoted shares whenever the dividend alone does not truly represent the profitability of the company ....The "dividend" and "earnings" methods of valuation are not mutually exclusive and both may be used in conjunction. Where the value brought out by one differs widely from that shown by the other, an intermediate figure may be appropriate... Where a company is engaged in a profitable business, but the shareholders are also directors and prefer to take what they need from the company in the form of remuneration rather than dividends, the profits distributed by way of remuneration must be taken into account in the valuation. In practice, a dividends, the profits distribution by way of remuneration must be taken into account in the valuation. In practice, a dividend yield valuation may be adopted in those cases by assuming the distribution of a reasonable proportion of the profits (e.g., the average distribution of the comparable companies) as dividend : althernatively the value may be estimated by reference to earnings. In either case, the profits will be adjusted to include remuneration paid in excess of a normal management charge."
55. Futher, the court observed that, when the company is ripe for liquidation or has been consistently incurring losses, the valuation may well be the break-up value of the shares. Thereafter, the court held (at page 630) :
"The general principle of valuation in a going concern is the yieyld on the basis of average maintainable profits, subject to adjustment, etc., which the circumstances of any particular case may call for."
56. Six factors were stated in page 1029 and thereafter the Supreme Court said (at page 634 fo 86 ITR) :
"In setting out the above principles, we have not tried to lay down any hard and fast rule because ultimately the facts and circumstances of each case, the nature of the business, the prospects of profitability and such other considerations will have to be taken into account as will be applicable to the facts of each case. But one thing is clear, the market value, unless in exceptional circumstances to which we have referred, cannot be determined on the hypothesis that business in a private limited company one holder can bring in into liquidation, it should be valued as on liquidation by the break-up mehtod. The yield menthod is the generally applicable method while the break-up method in the one resorted to in exceptional circumstances or where the company is ripe for liquidation but nonetheless is one of the methods."
57. The entire discussion was in the context of section 7 of the Wealth- tax Act and the question framed by the Supreme Court is found at page 1029 of AIR 1973 SC, (at the end of para 13) (at page 634 of 86 ITR). Though the decision is under that Wealth-tax Act, guidance is amply found in the judgment to identify the normal, general principles governing the valuation of unquoted equity shares. The dominant factor is always the yield method.
58. This decision was followed in CGT v. Smt. Kasumban D. Mahadevia, , where the valuation of ordinary shares, in an investment company came upfor consideration. The actual question before the court was, whether any question of law arose out of the orders of the Tribunal requiring reference to the High Court. After referring to the earlier decision rendered in Mahadeo Jalan's case [1972] 86 ITR 621, the court observed, at page 772 (at page 45 of 122 ITR) :
"But where the shares in a public limited company are not quoted on the stock pexchange or the shares are in private limited company the proper method of valuation to be adopted would be the profit earning method. This method may be applied by taking the dividends as reflecting the profit earning capacity of the company on a reasonable commercial basis but if it is found that the dividends do not correctly do not correctly reflect the profit earning capacity because only a samll proportion of the profits is distributed by way of dividends and large amount of profits is systematically accumulated in the form of reserves, the dividend menthod of valution may be rejected and the valuation may be made by reference to the profits. The profit- earing method takes into account the profits which company has been making and the valuation, according to this method, is based on the average maintainable profits."
59. The court rejected the Revenue's contention that combination of two methods (break-up and average maintainable profit methods) has no sanction of any judicial or other authority. There is another observation, at page (at page 45 of 122 ITR) :
"The profit-earning capacity of the company would ordinarily determine the value of the shares. That is why in Mahadeo Jalan's case the court quoted with approval the following observations of Williams J. In McCathie v. Federal Commissioner of Taxation (69 CLR 1) `...the real value of shares which a decased person holds in a company at the date of his death will depend more on the profits which the company has been makeing and should be capable of making, having regard to the nature of its business, than upon the amounts which the shares would be likely to realise upon a liquidation' and stated in no uncertaion terms tht `the general principle of valuation in a going concern is the yield on the basis of average maintainable profits, subject to adjustment, etc., which the circumstancess of any particular case may call for'. The break-up method could not be appropriate for valuation of shares of a company which is a going concern because as pointed out by the court in Mahadeo Jalan's case [1972] 86 ITR 621, "amoug the factors which govern the consideration of the buyer and seller where the one desires to purchase and the other wishes to sell, the factor of break-up value of a share as on liquidation hardly enters into consideration where the shares are of a going concer'. It is only where a company is ripe for winding up or the situation is such that the fluctuations of profits and uncertainly of conditions at the date of valuation prevent any reasonable estimation of the profit earning capacity of the company, that the valuation by the break-up menthod would be justified. The Revenue leaned heavily on the observation n Mahadeo Jalan's case [1972] 86 ITR 621 that the factors likely to determine the valuation of a share include `in special cases such as investment companies, the asset-backing' and urged on the strength of this observation that in the case of an investment company, the asset- backing was a relevant consideration and the break up method could not therefore, be considered as totally irrelevant. This contention, we are afraid, is based on a wrong reading of the observation of the court. When the court said that in the case of an investment company, the asset-backing is a relevant factor in determination of the value of the shares, what the court meant was that in order to determine the capacity of the company to maintain its profits the asset-backing would be a relevant consideration. The profit-earning capcity of the company which would determine the valuation of the shares would naturally have to take into account not only the profits which the company is actually making but also the profits which the company should be capable of making and in order to arrive at a proper estimatio
