Defendants in a suit for specific performance relating to an agreement for transfer of an immovable property are not necessarily persons interested in the affairs of a company involved in a scheme under Chapter V of Part-VI of the Companies Act, 1956, and do not have a right to intervene in an application for recalling the order sanctioning the scheme.

Sanjib Banerjee, J.

1. The applicants in these two matters are defendants in a suit for specific performance filed by the transferor company in a scheme of amalgamation. It appears that notwithstanding the scheme of amalgamation having been allowed and the transferor company therein having been dissolved, the suit has continued in the name of the dissolved transferor company. One set of applicants is the original owner of the immovable property in question; the other set of applicants claims to be the subsequent purchasers of the land. The applicants say that it came to light in course of the cross-examination of the plaintiff's witnesses in the suit pending in the Barasat Court that the plaintiff in that suit had been dissolved and the defendants had thereafter applied for rejection of the plaint or dismissal of the suit. The applicants submit that it was at this stage that the plaintiff in the Barasat suit obtained an adjournment and the erstwhile directors of the transferor company have now applied for recalling the order sanctioning the scheme and, consequently, the order dissolving the transferor company. The applicants suggest that they would be seriously prejudiced if the application for recalling the order of sanction is taken up in their absence. The applicants apprehend that the application for recalling the order of sanction may have been collusively made and an order may have obtained from this Court without disclosing all relevant material.

2. It does not appear that either set of applicants is entitled to have a look-in in the application for recalling the order sanctioning the scheme.

3. The applicants refer to section 391 of the Companies Act, 1956 and the specified classes of persons who are entitled to apply thereunder. This, the applicants contrast with section 392(2) of the Act where the relevant expression is "any person interested in the affairs of the company." The applicants assert that since an application under section 392 of the Act, for enforcing a compromise or arrangement or otherwise, may be carried by not only the persons referred to in section 391 of the Act but also by any other person interested in the affairs of the company (it has, however, not been specified on behalf of the applicants which company is referred to in the expression "the company" in the relevant phrase), the applicants here may also be seen to have a right to apply thereunder. In support of such proposition, the applicants refer to a judgment reported at (1979)3 SCC 54 and rely on paragraph 14 thereof. Paragraph 14 of the report says no more than the obvious: that the expression "any person interested in the affairs of the company" is wider than the classes of persons who may apply under section 391 of the Act.

4. A further authority is placed on behalf of the applicants, reported at (1956)1 All ER 273. It is necessary to refer to the facts relating to that case before coming to the passages cited from the report. The plaintiff claimed to be the inventor of an adhesive dispenser and alleged to have negotiated with the defendants for marketing the product. The plaintiff asserted that the defendants were under an obligation to not disclose the confidential material to any other person and claimed to be entitled in damages for the defendants' breach of such obligation. Before filing their defence, the defendants applied for impleading a non-party on the ground that the defendants were contractually bound to engage in the acts complained of by the plaintiff by virtue of the agreement with the person sought to be impleaded.

5. It was in such context that the passage referred to by the applicants at page 281 of the report has to be seen:

If this is the line of authority that is the correct one to apply, then I think the test is: 'May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights?'. It is not, on this view, enough that the plaintiff's rights and the rights which t