MISMANAGEMENT

IN COMPANIES

Submitted to

Prof. Tilak Raj

By

Tanya Bansal

Tushita Gulati

MBA-General-B (Semester-2)

University Business School

Panjab University, Chandigarh

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 INDEX

S. NO. CONTENTS PAGE

NO.
1. Meaning 3
2. Acts held as mismanagement 3
3. Acts held as not mismanagement 3
4. Prevention of mismanagement 4
4.1 Who can apply 4
4.2 Who cannot apply 5
4.3 Notice to the central government 5
4.4 Relief against mismanagement 5
4.5 Right to apply under section 241 6
5. Power of tribunal 6
6. Consequence of termination or 9
modification of agreement

7. Case Studies- Reebok 11

8. Mismanagement of company affairs 13
9. Conclusion 19
10. References 20

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 MISMANAGEMENT IN COMPANIES

1. Meaning
U/s 398, Mismanagement is said to be done if the affairs of the company are being
conducted in a manner prejudicial to the interests of the company; or a material change
(not being a change brought about by, or in the interests of, any creditors including
debenture holders, or any class of shareholders, of the company) has taken place in the
management of control of the company, whether by an alteration in its Board of directors,
or if its managing agent or secretaries and treasurers, or in the constitution or control of
the firm or body corporate acting as its managing agent or secretaries and treasurers, or in
the ownership of the company's shares, or if it has no share capital, in its membership, or
in any other manner whatsoever, and that by reason of such change, it is likely that the
affairs of the company will be conducted in a manner prejudicial to the interests of the
company.

2. Acts held as Mismanagement

The following acts have been held as amounting to mismanagement:-

Where there is serious infighting between directors.

Where Board of Directors is not legal and the illegality is being continued.
Where bank account(s) was/were operated by unauthorised person(s).
Where directors take no serious action to recover amounts embezzled.
Continuation in office after expiry of term of directors.
Sale of assets at low price and without compliance with the Act.
Violation of Memorandum.
Violation of statutory provisions and those of Articles.
Company doomed to trade unprofitably.

3. Acts held as not Mismanagement

The following acts have been held to not to amount to Mismanagement:-
Building up of reserves or non-declaration of dividend especially when it does not result in
devaluation of shares.

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 Merely because company incurs loss, mismanagement cant be alleged.
Arrangement with creditors in companys bonafide interest.
Removal of director and termination of works managers services.

4. Prevention of Mismanagement
Application to Company Law Board (now Tribunal)

The first remedy available to oppressed minority is to move the Company Law Board (now
Tribunal).

4.1 Who can apply

U/s 398(1), Any members of a company who complain

(a) that the affairs of the company are being conducted in a manner prejudicial to the interests of
the company; or

(b) that a material change (not being a change brought about by, or in the interests of, any
creditors including debenture holders, or any class of shareholders, of the company) has taken
place in the management of control of the company, whether by an alteration in its Board of
directors, or if its managing agent or secretaries and treasurers, or in the constitution or
control of the firm or body corporate acting as its managing agent or secretaries and
treasurers, or in the ownership of the company's shares, or if it has no share capital, in its
membership, or in any other manner whatsoever, and that by reason of such change, it is
likely that the affairs of the company will be conducted in a manner prejudicial to the interests
of the company; may apply to the court for an order under this section, provided such
members have a right so to apply in virtue of section 399.

The requisite number of members who must sign the application is given in Section 399. The
requirement varies with the fact as to whether the company has a share capital or not and is
discussed below:-

In the case of a company having a share capital, not less than one hundred members of the
company or not less than one tenth of the total number of its members, whichever is less, or
any member or members holding not less than one-tenth of the issued share capital of the

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 company, provided that the applicant or applicants have paid all calls and other sums due on
their shares.
In the case of a company not having a share capital, not less than one-fifth of the total number
of its members.

The Central Government may, if in its opinion circumstances exist which make it just and
equitable so to do, authorise any member or members of the company to apply to the court
under section 398, notwithstanding that the two abovementioned requirements are not
fulfilled.

Besides members, the following may also apply for relief u/s 398:-

U/s 401, the Central Government or any person authorised by the Central Government has a
right to file a petition.
U/s 243, any person authorised by the Central Government under the circumstances
mentioned in that section can also file a petition.

A legal representative of a deceased member, on whom title to the shares devolves by operation
of law.

4.2 Who cannot apply

The following cant apply for relief u/s 398:-

A member whose calls or other sums due on their shares have not been paid.
A holder of a letter of allotment of a partly paid share.
A holder of a share warrant.
A transferee of shares who has not lodged the shares for transfer to the company.

4.3 Notice to the Central Government

S. 400 requires the Company Law Board (now Tribunal) to give notice of every application
made to it u/s 398 to the Central Government.

4.4 Relief against Mismanagement

U/s 398(2), If, on any application u/s 398(1), the Court is of opinion that the affairs of the
company are being conducted as aforesaid or that by reason of any material change as aforesaid
in the management or control of the company, it is likely that the affairs of the company will be

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conducted as aforesaid, the court may, with a view to bringing to an end or preventing the
matters complained of or apprehended, make such order as it thinks fit.

4.5 RIGHT TO APPLY UNDER SECTION 241 (SECTION 244):

In case of company having sharing share capital:

(a) Not less than one hundred members of the company, or

(b) Not less than one tenth of the total numbers of its members,

Whichever is less shall have right to apply under Section 241.

However, any member or members holding not less than one tenth of the issued share
capital of the company, subject to the condition that the applicant or applicants has or have
paid all calls and other sums due on his or their shares, shall also have right to apply under
Section 241.

In case of a company not having a share capital, not less than one fifth of the total number
of its members shall have right to apply under Section 241.

Tribunal may, on an application made to it in this behalf, waive all or any of the
requirements specified, so as to enable the members to apply under section 241.

Where any members of a company are entitled to make an application, any one or more of
them having obtained the consent in writing of the rest, may make the application on behalf
and for the benefit of all of them.

5. POWER OF TRIBUNAL (SECTION 242, SUB SECTION 1, 3):

On any application made under Section 241, the Tribunal shall frame its opinion on two
points:

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(a) that the companys affairs have been or are being conducted in a manner prejudicial or
oppressive to any member or members or prejudicial to public interest or in a manner
prejudicial to the interests of the company; and

(b) that to wind up the company would unfairly prejudice such member or members, but that
otherwise the facts would justify the making of a winding-up order on the ground that it was
just and equitable that the company should be wound up,

the Tribunal may with a view to bringing to an end the matters complained of, make such
order as it thinks fit.

A certified copy of the order of the Tribunal under sub-section (1) shall be filed by the
company with the Registrar within thirty days of the order of the Tribunal.

This means the Tribunal has unlimited power under this Section. However, this Section asks
the Tribunal to give particular details in its order.

Details in Order Passed by Tribunal (Section 242, Sub Section 2):

The Order shall provide for:

(a) the regulation of conduct of affairs of the company in future;

(b) the purchase of shares or interests of any members of the company by other members
thereof or by the company;

(c) in the case of a purchase of its shares by the company as aforesaid, the consequent
reduction of its share capital;

(d) restrictions on the transfer or allotment of the shares of the company;

(e) the termination, setting aside or modification, of any agreement, howsoever arrived at,
between the company and the managing director, any other director or manager, upon such

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terms and conditions as may, in the opinion of the Tribunal, be just and equitable in the
circumstances of the case;

(f) the termination, setting aside or modification of any agreement between the company
and any person other than those referred to in clause (e)but no such agreement shall be
terminated, set aside or modified except after due notice and after obtaining the consent of
the party concerned;

(g) the setting aside of any transfer, delivery of goods, payment, execution or other act
relating to property made or done by or against the company within three months before the
date of the application under this section, which would, if made or done by or against an
individual, be deemed in his insolvency to be a fraudulent preference;

(h) removal of the managing director, manager or any of the directors of the company;

(i) recovery of undue gains made by any managing director, manager or director during
the period of his appointment as such and the manner of utilisation of the recovery including
transfer to Investor Education and Protection Fund or repayment to identifiable victims;

(j) the manner in which the managing director or manager of the company may be
appointed subsequent to an order removing the existing managing director or manager of the
company made under clause (h);

(k) appointment of such number of persons as directors, who may be required by the
Tribunal to report to the Tribunal on such matters as the Tribunal may direct;

(l) imposition of costs as may be deemed fit by the Tribunal;

(m) any other matter for which, in the opinion of the Tribunal, it is just and equitable that
provision should be made.

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Interim Order (Section 242, Sub Section 4):

The Tribunal may, on the application of any party to the proceeding, make any interim order
which it thinks fit for regulating the conduct of the companys affairs upon such terms and
conditions as appear to it to be just and equitable.

Alteration in Memorandum or Articles (Section 242, Sub Section 5, 6, 7):

Where an order of the Tribunal makes any alteration in the memorandum or articles of a
company, then, the company shall not have power, except to the extent, if any, permitted in
the order, to make, without the leave of the Tribunal, any alteration whatsoever which is
inconsistent with the order, either in the memorandum or in the articles.

The alterations made by the order in the memorandum or articles of a company shall, in all
respects, have the same effect as if they had been duly made by the company in accordance
with the provisions of this Act and the said provisions shall apply accordingly to the
memorandum or articles so altered.

A certified copy of every order altering, or giving leave to alter, a companys memorandum
or articles, shall within thirty days after the making thereof, be filed by the company with
the Registrar who shall register the same.

6. CONSEQUENCE OF TERMINATION OR MODIFICATION OF

AGREEMENTS (SECTION 243):

Where an order made under section 242 terminates, sets aside or modifies an agreement

(a) such order shall not give rise to any claims whatever against the company by any person
for damages or for compensation for loss of office or in any other respect either in pursuance
of the agreement or otherwise;

(b) no managing director or other director or manager whose agreement is so terminated or

set aside shall, for a period of five years from the date of the order terminating or setting
aside the agreement, without the leave of the Tribunal, be appointed, or act, as the managing
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director or other director or manager of the company. Tribunal shall not grant leave under
this clause unless notice of the intention to apply for leave has been served on the Central
Government and that Government has been given a reasonable opportunity of being heard in
the matter.

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 Case Study

Reebok India case: Corporate mismanagement led to scam

Agencies probing the alleged Rs 870 crore corporate fraud in the operation of Reebok India
have detected a systemic mismanagement in the business planning and running of the
company reportedly done by some of its officials and employees.

Three different agencies the I-T department under Finance Ministry, the Serious Fraud
Investigation Office (SFIO) under Corporate Affairs Ministry and the Economic Offences
Wing of Gurgaon police have recorded the findings almost four months after a criminal case
was filed by Reebok India against two of its former employees.

The governance and operations in the company were mismanaged. The bills were inflated
and not recorded correctly. So, the probe clearly indicates that it was not a corporate scam in
the apparel manufacturing firm but it was non-adherence to the rules and guidelines of
business procedures in the firm, sources privy to the probe said.

The guidelines under the Companies Act were violated which is suspected to have led to other
contraventions like tax evasion, they said.

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The I-T department which has indicated to an alleged Rs 140 crore tax evasion in the case, the
sources said, will now work to ensure that the company, later, does not claim any bad debt.

A bad debt is that amount that is owed to a business or individual and has to be written off by
the creditor as a loss because the debt cannot be collected because of a host of reasons.

There were no serious borrowings or lendings of Reebok India. The probe agencies
investigation will make sure that the firm does not qualify to claim bad debt from anywhere in
the later course, they said.

Probe agencies have also found that some of the officials of the company could have been
involved in the inflation of bills and over-valuation of the goods of the firm.

In the much publicised criminal complaint filed at the Gurgaon polices Economic Offence
Wing in May, Reebok India had alleged that its former Managing Director Subhinder Singh
Prem and Chief Operating Officer Vishnu Bhagat were involved in an Rs 870-crore fraud by
indulging in criminal conspiracy and fraudulent practises over a period of time.

Gurgaon police had some days back arrested Subhinder Singh and Vishnu Bhagat along with
three others Sanjay Mishra, Prashant Bhatnagar and Surakshit Bhat.

Subhinder Singh and Vishnu Bhagat were booked for fraud, criminal conspiracy and other
charges under IPC for allegedly siphoning off the sportswear companys money by creating
ghost distributors across the country and generating forged bills over the last five years.

While the I-T department is scrutinising documents related to accounts and imports of the
firm, the SFIO is probing the entire governance affairs of the company under Section 235 of
the Companies Act.

According to sources, the probe agencies also do not rule out the culpability of accounting
officials of the firm at this stage for their deliberate or mistaken oversight in account
books which led to the alleged financial irregularities.

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8. Mismanagement of Company Affairs

Section 398 of the companies Act, 1956 is designed to primarily protect a company from
being mismanaged and usurped by few at the helm to the detriment of the companys interest
and public interest.

Sec.398 of the companies Act, 1956 mandates a person holding 10% of the equity shares to
file an application under sec.398(1)(a)& (b) if the affairs of the company are being conducted
in a manner prejudicial to public interest or in a manner prejudicial to the interests of the
company.

If the shareholder feels aggrieved by the way the affairs of the company are being carried out,
he may well approach the Tribunal under section 398 of the companies Act, 1956 if he
qualifies under section 399 of the Companies Act ( i.e. Holding not less than one- tenth of the
issued share capital of the company).

CASE-1 ( Shri Kishan Khariwal Vs. The Ganganagar Industries Limited

and Ors.(2004) )

In the case of ShriKishanKhariwalVs.The Ganganagar Industries Limited andOrs.(2004) 118

CC 626 (CLB) The company law board observed that To maintain a petition under Section
397/398 the provisions of Section 399 have to be complied with. According to this Section, to
maintain a petition under Section 397/398, the petitioners should hold either 10% or more
shares of the subscribed capital or should constitute 10% or more of the total members in the
company.

CLAIM BY PETITIONER

In the present case, the petitioner has claimed that the shares held by him together with those
of the members supporting him, account for 10.35% shares in the company and such the
requirements of Section 399 are satisfied. This percentage is based on the share capital of the
company before the issue of further shares impugned in the petition. This Board has always
taken the view that if the shareholding of the petitioners is reduced below 10% on account of
further issue of shares and if the issue of further shares is also challenged in the petition, then,
the petition will not be dismissed as not maintainable in terms of Section 399. Instead, the
allegation relating to the issue of further shares would be examined first as to whether the
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same is an oppressive act and if it is found to be so, then only other allegations in the petition
would be examined. In the present case, the petitioner claims the support of those holding
more than 10% shares and he has also impugned the further issue of shares, which has
resulted in the holding of the petitioner and his supporters to around 1%. Therefore, this
petition cannot be dismissed at the threshold before examining as to whether the issue of
further shares could be considered to be an act of oppression against the petitioner and his
supporters.

CASE-2 (M. MoorthyVs.Drivers and Conductors Bus Service P. Ltd(1991))

M. MoorthyVs.Drivers and Conductors Bus Service P. Ltd(1991) 71 con cases 136, 148
(Mad)the Madras High court observed

The language of sections 397 and 398 leaves no doubt as to the true intendment of the
Legislature and it is transparent that the remedy provided by these sections is of a preventive
nature so as to bring to an end oppression and mismanagement on the part of controlling
shareholders and not to allow its continuance to the detriment of the aggrieved shareholders of
the company. The remedy is not intended to enable the aggrieved shareholders to set at naught
what has already been done by the controlling shareholders in the management of the affairs
of the company.

In this case the company sold its asset in gross neglect of the interest of the company, and the
management of the company was indifferent to the affairs of the company after the sale of
assets. Hence the court held it to be a case of mismanagement and passed orders under section
397 and 398 of the companies act.

CASE-3 ( Sri Ramdas Motor Transport Ltd. and Ors.Vs. Karedla

Suryanarayana and Ors. AND Devarapalli Surya Rao and Ors. Vs. Sri
Ramdas Motor Transport Ltd. and Ors. [2002] )

The High court of Andhra Pradesh in the case of Sri Ramdas Motor Transport Ltd. and
Ors.Vs. Karedla Suryanarayana and Ors.AND Devarapalli Surya Rao and Ors.Vs.Sri Ramdas
Motor Transport Ltd. and Ors. [2002]110CompCas193(AP) observed relief under Section
398 of the Act can be obtained only if (1) the affairs of the company are being conducted in a
manner prejudicial to public interest or the interests of the company, or (2) if there is a
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material change which has taken place in the management or control of the company in the
manner set out in the said section, and that by reason of such change it is likely that the affairs
of the company will be conducted in a manner prejudicial to public interest or in a manner
prejudicial to the interests of the company.

But Section 397 of the Act comes into play when minority share-holders allege oppression by
the majority shareholders and Section 398 of the Act comes into play when the affairs of the
company are being conducted in a manner prejudicial to public interest and not in the interest
of the company.

CASE-4 (A. Kalvert and Anr. Vs. Konkan Chemicals Pvt. Ltd.)

In the case of Akbarali A. Kalvert and Anr. Vs. Konkan Chemicals Pvt. Ltd. and Ors the
company law board relied upon the observations made by the supreme court in the case of
NanalalZaver v. Bombay Life Assurance Co. Ltd. [1950] 20 Comp Cas 179 that It is well-
established that directors of company are in a fiduciary position vis a vis the company and
must exercise their power for the benefit of the company. If the power to issue further shares
is exercised by the directors not for the benefit of the company but simply and solely for their
personal aggrandizement and to the detriment of the company, the court will interfere and
prevent the directors from doing so. The very basis of the courts interference in such a case is
the existence of the relationship of a trustee and of cestuique trust as between the directors
and the company.

A person to file an application u/s.398 should have a right to apply in virtue of sec.399.

The High court of Patna in the case of Bihar State Industrial Development Corporation
Limited, a Government of Bihar Company and Magadh Spun Pipe Limited, a Joint Venture
Company promoted by Bihar State Industrial Development Corporation LimitedVs.Company
Law Board, Principal Bench and Ors observed

I. The object of prescribing a qualifying percentage of shares in petitioners and their

supporters to file petitions under Sections 397 and 398 is clearly to ensure that frivolous
litigation is not indulged in by persons who have no real stake in the company.

II. Moreover, I find that the Company Law Board has relied upon the judgment in
SrikantDuttaNarasimha Raja Wadiyars case (supra) relied upon by the respondents under
which if the person has been treated as a member of the company then the Company Court
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can exercise its jurisdiction in his favour. Even on this point treatment as a member of the
company would be confined only to respondent Nos. 4 and 5, with respect to whom it was
found that their names figure in the annual returns filed by the appellant company before the
Registrar of Companies and further that they have been issued notices of two annual general
meetings. There being no such finding with respect to respondent Nos. 2.and 3 and further
there being a specific finding that the respondent Nos. 4 and 5 did not qualify as holding
1/10th share capital, this Court fails to understand as to how even by relying upon the said
decision the Company Law Board could have arrived at a conclusion that the petitioners had
succeeded in showing that they were holding 10% equity shares and entitled to maintain a
petition under Section 398 before it.

The above judgment goes on to show that the courts are wary of accepting applications u/s.
398 if the petitioner does not meets the requirements prescribed under Section. 399.

Power of the Tribunal under section 398 of the companies act

Section 398 invests the tribunal with some very extensive powers to pass such orders as it
may think fit in the circumstances to bring an end to the agony of the shareholders and set the
mischief committed by the management at rest to ensure smooth functioning of the company
in the interest of the company and public.

The courts have by virtue of section 398 been playing a pro- active role, and they still
continue to do so, whenever they sense a whiff of mismanagement in a company.

A clutch of decisions by various courts and tribunal reaffirm and reiterate the point that the
court would intervene and take stock of the situation and pass such orders as it deems
appropriate in the given circumstances, if it proved to its satisfaction that the alleged acts of
mismanagement have been and are being committed which seriously affects the health of the
company and public interest.

A case to hold water, will have to be corroborated with sufficient evidence in the backdrop of
allegations made against the company under section 398, that would make out a case for
proceeding against the management of the company.

A glimpse at section 235 of companies act:

Section 235 of companies act is another section that deserves a mention when there occurs
mismanagement in the companys affairs.

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A shareholder who feels the affairs of the company are being mismanaged ,and it would only
be fair to invoke a probe into the affairs of the company to make things transparent, shall
make an application under section 235(2) (a).

Section 235(2) (a) reads as follows;

Where, in the case of a company having share capital, an application has been received from
not less than two hundred members or from members holding not less than one-tenth of the
total voting power therein, the tribunal may, after giving the parties an opportunity of being
heard ,by order declare that the affairs of the company ought to be investigated by an
inspector or inspectors, and on such a declaration being made, the central govt. shall appoint
one or more competent persons as inspectors to investigate the affairs of the company and to
report thereon in such manner as the central govt. may direct.

A shareholder holding one- tenth of voting rights shall by virtue of section 235 invoke a probe
into the affairs of the company.

A application to sustain under section 235(2)(a) should corroborate the allegations made in
the application with sufficient evidence, as would satisfy the court to direct an inquiry into the
affairs of the company.

Applications under this section would not be entertained if the allegations made in the
application are vague and uncertain.

It becomes extremely pertinent to place on record a case law that buttresses the above
mentioned point.

CASE-5 ( Mohta Bros. (P.)Ltd. and Ors.Vs.Calcutta Landing and Shipping

Co. Ltd. and Ors[1970])

In the case of Mohta Bros. (P.)Ltd. and Ors.Vs.Calcutta Landing and Shipping Co. Ltd. and
Ors[1970]40CompCas119(Cal), 73CWN425the high court ofCalcutta observed Full
particulars must be given by a petitioner in an application under Sections 397 and 398 of the
Act of acts of mismanagement and oppression. Vague and uncertain allegations of
mismanagement and oppression, although they may constitute grounds for suspicion, do not
entitle a petitioner to ask the court to embark upon an investigation into the affairs of the
company, in the hope that in consequence of such investigation, something will turn up which

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will enable the court to grant relief to the petitioner. It is true that it may not always be
possible for one or a group of shareholders to furnish particulars of acts of mismanagement,
fraud, oppression, misappropriation or other improper acts, but such inability on the part of
shareholders, who have no access to the books of the company, is by no means a ground for
directing an investigation into the affairs of the company or for giving any other relief to a
petitioner. The petitioner must set out the facts which constitute acts of mismanagement,
misappropriation, fraud or oppression and prove, prima facie, at any rate, that on those facts
an investigation is called for. If a petitioner fails to set out the facts and produce satisfactory
proof in support of those facts no order for investigation into the affairs of the company can
be made, nor can any relief be granted to the petitioner. A shareholder has no right of access
to the books of the company, but denial of access to such books is not an act of oppression as
has been held by this court in a Bench decision, Rajya Lakshmi (Lalita) v. Indian Motor Co.
Ltd. MANU/WB/0037/1962 : AIR1962Cal127 If a petitioner cannot make out a case of
mismanagement and oppression, because he was unable to collect materials for the purpose, it
is not for the court to direct the directors of the company to offer inspection of the companys
books and accounts to enable a petitioner to collect materials for the petition under Sections
397 and 398 of the Act, or to direct investigation into the companys affairs and accounts by
an independent person to bring out materials for further orders against the company, its
directors or shareholders.

To sustain an application under section.398 should have conclusive evidence as to the

allegations they make. The person complaining of mismanagement should glean the necessary
evidence in support of his allegations made under section 398.

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9. Conclusion-

Thus, to put things in perspective an application under section 398 should allege that the
affairs of the company are being conducted in a manner prejudicial to public interest or in a
manner prejudicial to the interests of the company as opposed to alleging that the affairs of
the company are being conducted in a manner prejudicial to interest of a few shareholders. An
application under section 398 would sustain the scrutiny of the court only if the application
alleges that the mismanagement is of such a nature as would have an adverse impact upon the
health of the company.

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10. REFERENCES

OPPRESSION & MISMANAGEMENT UNDER COMPANIES ACT 2013 |

AishMGhrana. (n.d.). Retrieved from https://aishmghrana.me/2013/06/14/oppression-
mismanagement
http://www.icaiknowledgegateway.org/littledms/folder1/chapter-7-prevention-of-
oppression-and-mismanagement.pdf
Meaning of Mismanagement. (n.d.). Retrieved from
http://artismc.com/index.php/blogs/view/55/94/
Reebok India case: Corporate mismanagement led to scam | Business Line. (n.d.).
Retrieved from http://www.thehindubusinessline.com/companies/reebok-india-case-
corporate-mismanagement-led-to-scam/article3929293.ece
Mismanagement of Company Affairs - Legal News / Law News & Articles - Free
Legal Helpline - Legal Tips : Legal India. (n.d.). Retrieved from
http://www.legalindia.com/mismanagement-of-company-affairs/
http://www.majmudarindia.com/pdf/Remedies%20available%20to%20shareholders%
20for%20fraud%20and%20mismanagement%20under%20Companies%20Act,%2019
56.pdf

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