( 1 ) A Preliminary objection is raised by the contesting respondents on the maintainability of the company petition under sections 397, 398 and 402 of the Companies Act, 1956 (in short, "the act), on the ground that the petitioner is not a member of the first respondent-company and that therefore, he cannot invoked the aforesaid provisions of the Act. A similar objection was raised in Company Petition No. 8 of 1982 by the contesting respondent in that petition and that was the subject-matter of Original Side Appeal No. 2 of 1985 before a Devision Bench of this court in shri Balaji Textile Mills Pvt. Ltd. v. Ashok Kavle [1989] 66 Comp Cas 654 to which was a party. The Division Bench had ruled that if a person was admittedly treated as a member of the company and satisfied the company court that he is a shareholder of a company by virtue of allotment of shares in his favour which is evidence not only in the register of other document maintained and filed by the company, it is not open to the company to contend that for the purpose of section 397 and 398 of the Act, a shareholder must comply with the condition precedent stipulated in section 41 (2) of the Act.

( 2 ) IT