Judgement

Appeal from an order of the High Court (Oct. 17, 1902) dismissing a petition presented under the Indian Companies (Memorandum of Association) Act, 1895, by the appellants for the confirmation by the Court of certain alterations of the companys objects.

Those alterations were proposed to be effected by a special resolution purporting to have been passed and confirmed at meetings of the appellant company held on May 29 and June 19, 1902.

The High Court found that by reason of the invalidity of certain proxies given under the circumstances stated in their Lordships judgment the special resolution was never validly passed. The respondent had objected to their validity. In the High Court argument was confined to two lots of 124 and 192 votes given to Macaulay, the chairman of the meeting, as proxy for absent shareholders. The Indian Companies Act, s. 77, which is for all material purposes a re-enactment of s.

Law. Rep. 32 Ind. App. 39 ( 1904- 1905) Bombay-Burmah Trading v. Dorabji Cursetji Shroff

138

51 of the Imperial Companies Act, 1862, requires a special resolution to be passed by a three-fourths majority of members present in person or by proxy; which in this instance was not secured if the votes in question were invalid.

Haldane, K.C, Levett, K.C, and Armitstead, for the appellants, contended that the votes were valid. They referred to various articles of association, including art. 65, which provides that no person can act as a proxy who is not a shareholder; art. 64, which gives a prescribed form of proxy ; art. 66, which assumes that he is named therein. They contended that the proxy in dispute was valid, because Macaulay was duly nominated as proxy by the power of attorney in 1881 and was qualified as a shareholder at the time he acted under it by voting. Art. 64 was only permissive and not directory as to the form of the instrument. There is no article which prohibits the appointment of a person to be ascertained at a future time, provided that when he acts he is qualified. Macaulay was sufficiently designated as a partner for the time being of a specified firm; in fact, the chairman of the company is by art. 71 directed to be a partner for the time being of the same firm. It was the settled practice of the company to treat powers of attorney so drawn as valid instruments of proxies.

Cohen, K.C, Jardine, K.C, and Clauson, for the respondent, contended that the proxy was invalid. Macaulay at the date of his appointment—that is, at the date of granting the power of attorney—was not qualified as a shareholder. He was not named in the power, as at least contemplated if not provided by arts. 64 and 66.

Haldane, K.C, replied.

The judgment of their Lordships was delivered by

LORD LINDLEY. The question raised by this appeal is whether an objection taken to a proxy used at a meeting of the shareholders of the above-named company can be sustained.

The company was incorporated in 1863 under the Indian Companies Act (XIX, of 1857), and in 1895 it was duly registered under the Indian Companies Act, 1882. It was formed to carry on trade in timber and petroleum in Burmah, Siam, and other places in the East, and by the companys memorandum of association and by its articles it was in substance provided that the business of the company should be carried on by the firm of Wallace & Co., merchants, of Bombay, " of whatever member or members that firm may for the time being consist," or, if they declined to act, by other managers to be appointed by the company.

As a matter of fact the company was formed to take ovar ft branch of the business of Wallace & Co., and this firm were the secretaries, treasurers, and managers of the company. There never were any others.

By the companys articles of association voting by proxy was allowed. The articles relating to such voting and to the chairman of the company were as follows —

“LXIL Votes may be given either personally or by proxy,

"LXIII. The instrument appointing a proxy shall be in writ