JUDGMENT :

Moushumi Bhattacharya, J.

1. The plaintiffs seek an injunction on the sale of a property of the defendant no. 15 Company consisting of 20 acres of land situated at Thane, Maharashtra. The plaintiffs claim the present application to be a derivative action for the benefit of the defendant no.15 which has been described as a family Company acquired by the first plaintiff’s late father in 1981. The defendant nos. 13, 15, 16, 18 and 22 to 26 are the alleged offenders with regard to issue of shares and appointments of directors of the defendant no.15 Company which are the other complaints of the plaintiffs in the suit.

2. The primary contention of the plaintiffs, as would appear from the submissions of Mr Abhrajit Mitra, Senior Counsel, is that the sale of the land at Thane should be restrained on the ground of the sale being undervalued and not in the best interest of the Company. The plaintiffs also challenge the manner in which the Extraordinary General Meeting of the Company has been called in violation of section 101 of the Companies Act, 2013.

3. The plaintiffs are supported by the defendant no.3 who questions the need to sell the undertaking of the Company. According to Mr. H.L. Tiku, Senior Counsel, the defendant no.1 has illegally issued further shares after 2004 and has allotted 5 lakh equity shares on preferential basis resulting in reduction of the shareholding of the other parties.

4. Mr. S.N. Mookherjee, Senior Counsel appearing for the defendant no.15 Company, opposes the application on the ground that the Thane property is required to be sold to cover the huge losses faced by the Company during the Covid-19 pandemic and the demands made by financial creditors. Counsel defends the valuation done for such sale and urges that satisfactory notice of the EGM was given to the plaintiffs. It is submitted that non-compliance of section 101 of the 2013 Act would not render the meeting a nullity and further that the resolutions pertaining to sale of the property were passed by requisite majority.

5. The defendant nos. 1 and 2 are represented by Mr. Sakya Sen, counsel, who urges that the final reliefs claimed are not supported by the pleadings in the plaint. It is submitted that the cause of action in the plaint is identical to that pleaded in a Partition Suit C.S. No. 79 of 2011 which is pending as on date. Counsel submits that the cause of action is based on the plaintiffs being co-sharers of the joint family properties which cannot form the basis of a derivative action of a minority shareholder of a public limited company.

6. The first point which is required to be answered in view of the objection taken on behalf of the defendant nos. 1, 2 and 15 is whether the prayers in the application can be allowed with reference to the form of the suit, i.e., C.S. No.12 of 2009. The contention of the said defendants is that the plaintiff cannot claim any relief in the nature of a derivative action in the present suit as the plaintiffs themselves have described the Thane property as a joint family property. This aspect requires a brief statement of the background of the matter. An order dated 6th April, 2011 in the application for interim relief filed in the present suit indicates that the learned Single Judge was of the view that the merits of the claim cannot be entertained since claiming partition of several assets of the Company in a derivative action is contradictory to the recognised form and purpose of such action. The aforesaid view was founded on the nature of a derivative action where the complainant seeks to enforce a cause of action on behalf of the company and does not have a personal interest in the reliefs claimed since a derivative action is for rectifying a wrong done to the company where a judgment is given in favour of the company without any personal benefit accruing to the complainant.

7. By reason of the view taken by the Single Bench, the plaintiffs filed a second suit; C.S. No.79 of 2011 which incorporated the