TaxTMI 
TaxTMI 
1946 (10) TMI 7
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....such a case as the present, the terms of the section place a heavy burden on a petitioner, that is a matter for Parliament, and not for me. The question involved is one which falls within a very small compass. On the facts of the case, as admitted or proved, it is plain that the individuals, whose names are set out in the affidavit of October 25, had in no way communicated any authority to the petitioner at the time when he presented his petition. I assume, for the purpose of the present petition, that each one of those persons had, in fact, signed a document purporting to confer authority on the petitioner before the time when he presented the petition ; but, as I have said, it is conceded that the fact of their having so signed was unknown to him at the date when he presented the petition, and the sole question which I have to determine is whether, in those circumstances, it can be successfully contended on Mr. Lewisohn's behalf that he has satisfied. Section 61(2) of the Companies Act, 1929. Section 61(2) is in the following terms : 'An application under this section'-that is, to have the variation of rights cancelled-'must be made within seven days after the date on which the....
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.... for there, as appears from the facts stated, the petitioner had not at the time when he presented the petition purported to obtain the authority in writing of holders of 15 per cent, of the issued ordinary stock. His claim was that he had presented the petition on his own behalf and on behalf of other shareholders of not less than 15 per cent., and that it would be sufficient if, by the time the petition came to be heard, he could get their authority ratifying the assumed agency. In the present case, Mr. Lewisohn says, not that he has failed to get up to now any support, but that, so far as is material to the present application, the appointment in writing had been made in fact, although not communicated to him. But when I look at the reasoning of the decision of Bennett, J., and of the Court of Appeal in Re Suburban and Provincial Stores Ltd. 3, it seems to me reasonably plain that both courts proceeded on the view that, since the question at issue is title to sue, a petitioner claiming to petition on behalf of others under this section must show that, at the date when he presents the petition on their behalf, he was clothed with their authority to do so. If that is the right vi....
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....ervation of any kind to cover any case in which, unknown to the petitioner, some writing did exist. The Master of the Rolls took the view that the terms of the section did not contemplate ex post facto ratification: ' If more shareholders than one make up the necessary 15 per cent., they can either all join in the presentation of a petition or appoint one or more of their number in writing to make the application on their behalf.' He went on to say that the question was one of title to sue, and said: 'If he'-that is, the petitioner-'is not' [the holder of 15 per cent.] 'the only way in which he can obtain a title to sue is by having authority in the statutory form-namely, an appointment in writing-from the number of shareholders necessary to make up 15 per cent, of the shareholding affected.' Reading those passages together in the light of the facts and arguments, it seems to me that Lord Greene, M.R., indubitably proceeded on the footing that the petitioner must be clothed with authority both given and communicated to him, before he can begin the proceedings by presentation of the petition. Holding the view which I do, and I confess, in the light of those decisions, I feel clear ....
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....a necessary pre-requisite to the commencement of proceedings under the section. If more shareholders than one make up the necessary 15 per cent, they can either all join in the presentation of a petition or appoint one or more of their number in writing to make the application on their behalf, but in any case there must be a qualified shareholder or a qualified group of shareholders who either by themselves or by their appointed representative or representatives, are the persons instituting the proceedings at the time when the proceedings are instituted. If this matter is regarded on the lines of a pleading, the title to sue is purely statutory, If an individual is suing, he must show his title to sue on the face of his petition. Under the statute that title is derived from one of two alternative states of affairs. If he is himself the holder of 15 per cent, of the shares affected, he has a title to sue, but if he is not, the only way in which he can obtain a title to sue is by having the authority in the statutory form-namely, an appointment in writing-from the number of shareholders necessary to make up 15 per cent, of the shareholding affected. The petition would be demurrable u....