KIIT SCHOOL OF LAW

PROJECT
ON
COMPANY LAW
(PREVENTION OF OPPRESSION AND MISMANAGEMENT)

SUBMITTED TO
IPSHITA DAS

SUBMITTED BY
ABHASH KUMAR PADHI
1283002
BALLB

CONTENTS

PAGE NO.

INTRODUCTION...........................................................................

Prevention of oppression ................................................................

APPLICATION...............................................................................................

RIGHT TO APPLY..........................................................................................

POWER OF TRIBUNAL AND INTERIM ORDER..........................................

CLASS ACTION.................................................................................................... 8
Conditions for Granting Reliefs.............................................................................

CONCLUSION....................................................................................................

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INTRODUCTION
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Oppression
Oppression is the exercise of authority or power in a burdensome, cruel, or unjust manner. It
can also be defined as an act or instance of oppressing, the state of being oppressed, and the
feeling of being heavily burdened, mentally or physically, by troubles, adverse conditions,
and anxiety.
The Supreme Court in Daleant Carrington Investment (P) Ltd. v. P.K. Prathapan, 1 held that
increase of share capital of a company for the sole purpose of gaining control of the company,
where the majority shareholder is reduced to minority , would amount to oppression. The
director holds a fiduciary position and could not on his own issue shares to himself. In such
cases the oppressor would not be given an opportunity to buy put the oppressed.

Mismanagement
Mismanagement is said to be done if the affairs of the company are being conducted in a
manner prejudicial to the interests of the company; or a material change (not being a change
brought about by, or in the interests of, any creditors including debenture holders, or any class
of shareholders, of the company) has taken place in the management of control of the
company, whether by an alteration in its Board of directors, or if its managing agent or
secretaries and treasurers, or in the constitution or control of the firm or body corporate acting
as its managing agent or secretaries and treasurers, or in the ownership of the company's
shares, or if it has no share capital, in its membership, or in any other manner whatsoever, and
that by reason of such change, it is likely that the affairs of the company will be conducted in
a manner prejudicial to the interests of the company.
CA 2013 provides for provisions relating to oppression and mismanagement under Sections
241-246. Section 241 provides that an application for relief can be made to the Tribunal in
case of oppression and mismanagement.

Prevention of oppression
1(2004) 4 Comp. L.J. 1 (S.C.)
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Section 397(1) of the Companies Act, 1956 and section 241 of Companies Act, 2013 provides
that any member of a company who complains that the affair of the company are being
conducted in a manner prejudicial to public interest or in a manner oppressive to any member
or members may apply to the Tribunal for an order thus to protect his /her statutory rights.

Sub-section (2) of Section 397 of Companies Act, 1956 lays down the circumstances under
which the tribunal may grant relief under Section 397, if it is of opinion that :-

(a)the companys affairs are being conducted in a manner prejudicial to public interest or in a
manner oppressive to any member or members ; and

(b) to wind up the company would be unfairly and prejudicial to such member or members ,
but that otherwise the facts would justify the making of a winding up order on the ground that
it was just and equitable that the company should be wound.

The tribunal with the view to end the matters complained of, may make such order as it
thinks fit.

APPLICATION IN CASE OF OPPRESSION & MISMANAGEMENT

(SECTION 241):

Any member, who has right to apply under Section 244, may apply to the Tribunal under this
Section 241.
An application may be filed for a complaint that:
(a) The affairs of the company have been or are being conducted
1. in a manner prejudicial to the public interest, or
2. In an manner prejudicial or oppressive to him or any other member or members, or
3. In a manner prejudicial to the interests of the company; or
(b) The material change has taken place in the management or control of the company,
whether by;
1.
2.
3.
4.
5.

An alteration in the Board of Directors, or

Manager, or
In the ownership of the companys share, or
If it has no share capital, in its membership, or
In any other manner whatsoever, and
that by reason of such change, it is likely that the affairs of the company will be
conducted in a manner prejudicial to its interests or its members or any class of
members. These changes should not be a change brought about by, or in the interests
of, any creditors, including debenture holders or any class of shareholders of the
company.

The Central Government, if it is of the opinion that the affairs of the company are being
conducted in a manner prejudicial to public interest, it may itself apply to the Tribunal for an
order under this Chapter.

RIGHT TO APPLY UNDER SECTION 241 (SECTION 244):

In case of company having sharing share capital:
(a) Not less than one hundred members of the company, or
(b) Not less than one tenth of the total numbers of its members,
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Whichever is less shall have right to apply under Section 241.However, any member or
members holding not less than one tenth of the issued share capital of the company, subject
to the condition that the applicant or applicants has or have paid all calls and other sums due
on his or their shares, shall also have right to apply under Section 241.
In case of a company not having a share capital, not less than one fifth of the total number
of its members shall have right to apply under Section 241.
Tribunal may, on an application made to it in this behalf, waive all or any of the requirements
specified, so as to enable the members to apply under section 241.
Where any members of a company are entitled to make an application, any one or more of
them having obtained the consent in writing of the rest, may make the application on behalf
and for the benefit of all of them.
POWER OF TRIBUNAL (SECTION 242, SUB SECTION 1, 3):
On any application made under Section 241, the Tribunal shall frame its opinion on two
points:
(a) that the companys affairs have been or are being conducted in a manner prejudicial or
oppressive to any member or members or prejudicial to public interest or in a manner
prejudicial to the interests of the company; and
(b) that to wind up the company would unfairly prejudice such member or members, but that
otherwise the facts would justify the making of a winding-up order on the ground that it was
just and equitable that the company should be wound up,
the Tribunal may with a view to bringing to an end the matters complained of, make such
order as it thinks fit.
A certified copy of the order of the Tribunal under sub-section (1) shall be filed by the
company with the Registrar within thirty days of the order of the Tribunal.
This means the Tribunal has unlimited power under this Section. However, this Section asks
the Tribunal to give particular details in its order.

Interim Order (Section 242, Sub Section 4):

The Tribunal may, on the application of any party to the proceeding, make any interim order
which it thinks fit for regulating the conduct of the companys affairs upon such terms and
conditions as appear to it to be just and equitable.

To further briefly examine a few provisions of CA 1956 vis--vis the provisions of

CA 2013:
1.Provision of Section 397 and 398 of CA 1956 are combined in Section 241 of CA 2013 and
accordingly applications for relief in cases of oppression, mismanagement etc. will have to be
directed to the Tribunal.
2.

While the powers of the Tribunal under CA 1956 on application under Section 397 or

398 and Section 404 were limited, CA 2013 granted additional powers to the Tribunal
including to:
(a)

restrictions on the transfer or allotment of the shares of the company;

(b)

removal of the managing director, manager or any of the directors of the company;

(c)

recovery of undue gains made by any managing director, manager or director during

the period of his appointment as such and the manner of utilisation of the recovery including
transfer to Investor Education and Protection Fund or repayment to identifiable victims;
(d)

the manner in which the managing director or manager of the company may be

appointed subsequent to an order removing the existing managing director or manager of the
company;
(e)

appointment of such number of persons as directors, who may be required by the

Tribunal to report to the Tribunal on such matters as the Tribunal may direct; and
(f)

imposition of costs as may be deemed fit by the Tribunal.

3.

The requirement of establishing existence of 'just and equitable' circumstances to

waive any and all requirements of the section pertaining to the meeting the minimum
minority limits and providing 'security' while allowing such an application are excluded from
the Companies Act, 2013.
4.

Further, by way of Section 245, CA 2013 has introduced the concept of class action

which was non-existent in CA 1956.

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Class Action - Section 245 of CA 2013 provides for class action to be instituted against the
company as well as the auditors of the company. The Draft Companies Rules allow for this
class action to be filed by the minority shareholders under Clause 16.1 of Chapter-XVI
(Number of members who can file an application for class action). On close reading of
Section 245 of the Companies Act, 2013, it can be seen that the intent of the section is not
only to empower the minority shareholder and/or members of the company but also the
depositors. Unlike Section 399 of CA 1956 which provides for protection to only
shareholder/members of the company, Section 245 of CA 2013 also extends this protection to
the class of depositors as well. However, in the current scenario, the provision of
representation of a class of members or depositors by a particular member or depositor lacks
clarity.
Conditions for Granting Reliefs (Acc. to Companies Act, 1956)
To obtain relief under section 397 the following conditions should be satisfied:1. There must be oppression- The Punjab and Haryana High Court in Mohan Lal
Chandmall v. Punjab Co. Ltd2 has held that an attempt to deprive a member of his ordinary
membership rights amounts to oppression. Imposing of more new and risky objects upon
unwilling

minority

shareholders

may

in

some

circumstances

amount

to

oppression.However, minor acts of mismanagement cannot be regarded as oppression.

The Court will not allow that the remedy under Section 397 becomes a vexatious source of
litigation. But an unreasonable refusal to accept a transfer of shares held as sufficient ground
to pass an order under Section 397 of the Companies Act, 1956.Thus to constitute oppression
there must be unfair abuse of the powers and impairments of the confidence on the part of the
majority of shareholders.
2. Facts must justify winding up- It is well settled that the remedy of winding up is an
extreme remedy. No relief of winding up can be granted on the ground that the directors of
the company have misappropriated the companys fund, as such act of the directors does not
fall in the category of oppression or mismanagement.To obtain remedy under Section 397 of
the Companies Act, the petitioner must show the existence of facts which would justify the
winding up order on just and equitable ground.

2AIR 1961 Punj. 485

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3. The oppression must be continued in nature It is settled position that a single act of
oppression or mismanagement is sufficient to invoke Section 397 or 398 of the Companies
Act. No relief under either of the section can be granted if the act complained of is a solitary
action of the majority. Hence, an isolated action of oppression is not sufficient to obtain relief
under Section 397 or 398 of the Act. Thus to prove oppression continuation of the past acts
relating to the present acts is the relevant factor , otherwise a single act of oppression is not
capable to yield relief.
4. The petitioners must show fairness in their conduct-It is settled legal principle that the
person who seeks remedy must come with clean hands. The members complaining must
show fairness in their conduct. For ex-Mere declaration of low dividend which does not
affect the value of the shares of the petitioner ,was neither oppression nor mismanagement in
the eyes of law.
5. Oppression and mismanagement should be specifically pleaded- It is settled law that , in
case of oppression a member has to specifically plead on five facts:a) what is the alleged act of oppression ;
b) who committed the act of oppression;
c) how it is oppressive;
d) whether it is in the affairs of the company;
e) and whether the company is a party to the commission of the act of oppression.

Conclusion
Oppression and mismanagement are part and parcel of business. During the course of
business, oppression of small/minority shareholders takes place by the majority shareholders
who are in control of the company. Similarly, mismanagement of business is not uncommon.
When we talk of mismanagement we mean mismanagement of resources. Mismanagement
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could mean siphoning of funds, causing losses due to rash decision, not maintaining proper
records, not calling requisite meetings. Finer version of mismanagement could arise where
the management does not act/react to a business situation leading to downfall of business.
The concept of oppression and mismanagement is more relevant or common to family owned
concerns. The reasons are very obvious.
.

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