SUJATA MANOHAR, J.

( 1 ) FIVE petitioners have filed this petition under sections 397 and 398 of the Companies Act, 956 against killick Nixon Ltd. and the other respondents. The petitioners are the Bank of India, the Union Bank of India, Dhanraj Mills Pvt. Ltd. , Mahesh Jayantilal Patel and Tejkumar Balkrishna Ruia. The Petition on behalf of the Bank of India and the Union Bank of India is signed by petitioner No. 5 Tejkumar Balkrishna Ruia as their constituted attorney. In the petition it is stated that the Bank of India holds, inter alia, 17, 187 fully paid up shares in Killick Nixon Ltd. (hereinafter referred to as the Company ). The register of shareholders of the Company shows the Bank of India as the holder of 17, 187 fully paid up shares. The Bank of India has sold 16, 706 shares out of theses shares to Dhanraj Mills Pvt. Ltd. These shares, however, have not been transferred by the Company in its register of Share-holders in the name of Dhanraj Mills Pvt. Ltd.

( 2 ) THE Union Bank of India holds inter alia, 5000 fully paid up equity-shares in the Company and its name is shown on the Register of Share-holders of company as the holder of these shares. The Union Bank of India has sold these 5000 shares to Dhanraj Mills Pvt. Ltd. The transfer has not, however, been effected in the Register of Shares by the Company.

( 3 ) DHANRAJ Mills Pvt. Ltd. is also a member of the Company and holds 20 fully paid up equity shares in the Company. Petitioner No. 4 Mahesh Jayantilal Patel is also a member of Company and holds 20 fully paid up equity shares in the Company. Tejkumar Balkrishna Ruia, who is the 5th petitioner, holds 10 fully paid up equity-shares of the Company and his name is shown as such in the Register of Share-holders of the Company. Four other members of the Company holding 11,253 share have consented to the petition filed. Letters of consent on their behalf are signed by the 5th petitioner Tejkumar Balkrishna Ruia, who holds a power of attorney from these consenting members. The members do consenting are Hiralal Amritlal Kotadia who holds 5466 shares, Amit Hiralal Kotadia who holds 267 shares, Ravindra Mulraj who holds 4150 shares and jawahar Ravindra Mulraj who holds 1400 shares.

( 4 ) AFTER this petition was admitted, the Company and the other respondents took out a Judges Summons praying that the order admitting the company petition should be revoked set aside and the company petition should be dismissed. The pleas which were taken in the Judges Summons were taken on a demurrer on the basis that the petition as filed was not maintainable. Basically the contention of the respondents was that the petitioners Nos. 1 and 2 viz. the Bank of India and the Union Bank of India could not be considered as "members" of the Company for the purposes of the sections 397 and 398 of the Companies Act, 1956, inasmuch as they had sold their shares and as such they did not have the necessary "interest" to maintain the petition. In their absence the other petitioners could not maintain the petition under sections 397 and 398 of the Companies Act as they did not have the necessary share-holding contemplated under section 399 of the Companies Act. The respondents also submitted that the consent given by the holders of 11,253 shares was not a valid consent in law to give such a consent. The contentions of the respondents were rejected by a learned Single Judge of this High Court who dismissed the Judges summons of the respondents by his judgment dated 9th December, 1981. The Company and the other respondents have the reopen filed the present appeal.

( 5 ) THE basic question that requires determination is whether a member of a Company who has transferred his share holding to another person but who continues to be on the register of members of company because the company has not deleted his name and entered the name of the transferee in his place, can maintain a petition under sections 397 and 398. Section 397 in plain language state