Appeals Nos 114 and 115 of 1965
Appeals from the judgment and decree dated May 7 1958 of the Allahabad High Court in Special Appeals Nos 46 and 48 of 1952
ND Karkhanis and JP Aggarwal for the appellants in both the appealS
Shanti Bhushan and BP Maheshwari for the respondents in both the appeals
The Judgment of the Court was delivered by Shah J
The Grain Chamber Ltd Muzaffarnagar a Company registered under the Indian Companies Act 1913 with a share capital of Rs 100000 divided into 1000 shares of Rs 100 each was formed for the purpose of carrying on business of an exchange in grains cotton sugar gut pulses and other commodities
By article 5 of its Articles of Association nO person or firm could remain a member of the Company who was found not to be doing any transaction or business through the Company for a continuous period of six months
By article 46 it was provided that a member of the Company who owned 10 shares of the Company in his own name or in the name of the firm of which he was a proprietor or partner may be elected a director of the Company
By article 51 until otherwise fixed the quorum in the meetings of directors was to be four
In the years 1949 and 1950 the Company was carrying on business principally in futures in gut
The method of carrying on business in futures was explained as follows by the parties to the dispute in an agreed statement submitted before the Company Judge
The transactions for sale and purchase of gut have to be in the units called Bijaks  of 100 maunds
The buyer and the seller who are members of the Company negotiate transactions of sale and purchase in gut through their respective brokers and then approach the Company
The Company enters into
two independent contracts whereby the Company is the purchaser from one and is the seller to the other at rates agreed upon between the seller and the buyer
The seller has therefore to sell to the Company a specified quantity and the buyer agrees to purchase the same quantity from the Company under an independent contract
For the due performance of their contracts the buyer and the seller deposit with the Company rupee one per maund as Sai and annas eight per maund as Chook margin 
If there is a rise in the price the Company calls upon the seller to pay the difference and if he fails to deposit the difference demanded
the Company enters into a reverse transaction with a purchaser 255 at the current rate of the day and squares up the transaction of sale
purchaser is also entitled to withdraw from the Company the profits he has made consequent On the rise in price
If the seller is adjudged an insolvent or for any other reason is incapable of performing his obligations the buyer remains unaffected Even if the Company is unable to recover anything from the seller it has still to pay to the buyer the profits earned by him
Similarly if there is a fall in the price the buyer has to make good the difference
If on the day fixed for delivery of goods the parties intend to settle the transaction by paying and receiving the difference the Company fixes the rate at which the transaction is to be settled and the transaction is settled at the rate fixed by the Company
Both the buyer and the seller send bills known as Dailies setting out the amounts paid and received according to the rates fixed
On March 14 1949 the Board of Directors of the Company passed a resolution sanctioning transaction of business in futures in gur for Phagun Sudi 15 Samvat 2006 March 4 1950 settlement
On August 9 1949 Seth Mohan Lal and Company purchased one share of the Company and qualified for membership
They commenced dealing with the Company in futures in gur
By December 1949 Seth Mohan Lal and Company who will hereinafter be called the appellants  had entered into transactions with the Company which aggregated to 1136 Bijaks of sale of gur for the Paush Sudi 15 2006 delivery
The appellants also claimed that they had entered into sale transactions in 2137 Bijaks in the benami names of five other members
In January 1950 there were large fluctuations in the prices of gur  and in order to stabilise the prices the directors of the Company passed a resolution in a meeting held on January 7 1950 declaring that the Company will not accept any settlement of transaction in excess of Rs 178 per maund
The sellers were required to deposit margin money between the prices prevailing on that date and the maximum rate fixed by the Company
The appellants deposited in respect of their transactions Rs 526996 14 as margin money
They claimed also to have deposited amounts totaling Rs 7 lakhs odd in respect of their benami transactions
In exercise of the powers conferred by section 3 of the Essential Supplies Temporary Powers Act 24 of 1946 the Government of India issued a notification on February 15 1950 amending the sugar Futures  Options Prohibition Order 1949 and made it applicable to futures and options in gur
By that Order entry into transactions in futures after the appointed day was prohibited
On the same day the Board of Directors of the Company held a meeting and resolved that the rates of gur which prevailed at the close of the market on February 14 1950 viz 256 Rs 176 per maund be fixed for settlement of the contracts of Phagun delivery
It was recited in the resolution that five persons including Lala Mohan Lal partner of the appellants were present at the meeting on special invitation
In cl 2 of the resolution it was recited that as the Government had banned all forward contracts in gur it was resolved to take the prevailing market rate on the closing day of
February 14 1950 which was
Rs 176per maund for Phagun delivery and to have all Outstanding transactions of Phagun delivery settled at that rate 
Entries were posted in the books of account of the Company on the footing that a11 outstanding transactions in futures in gur were settled on February 15 1950
In the account of Mohan Lal  Company an amount of Rs 52699614 stood to the credit of the appellants
Against that amount Rs 5157695were debited as loss adjusted and on February 15 1950 an amount of Rs 112279 stood to their credit
Similar entries were posted in the
accounts of other persons who had outstanding transactions in gur
On February 22 1950 the appellants and their partner Mohan Lal filed a petition in the High Court of Judicature at Allahabad for an order winding up the Company
Diverse grounds were set up in the petition
The principal grounds were that the Company was unable to pay its debts that it was just and equitable to wind up the Company because the directors and the officers of the Company were guilty of fraudulent acts resulting in misappropriation of large funds and that the substratum of the Company had disappeared the business of the Company having been completely destroyed
On February 23 1951 another petition was filed by the appellants and their partner Mohan Lal for an order winding up the Company
It purported to raise certain grounds which it was submitted had not been raised in the first petition and which had arisen since the first petition was instituted
In the second petition it was averted that by virtue of the notification issued by the Government the forward contracts in gur had become void and the appellants were entitled to be repaid all the amounts deposited by them that the outstanding  contracts
stood
rescinded and the Company having paid out large sums to its directors and other shareholders was not in a position to meet its liability to the appellants
Brij Mohan Lal J held that the Company was not unable to pay its debts and that it was not just and equitable to wind  up the Company on the grounds set out in the petition
Orders passed by Brij Mohan
Lal J  dismissing the petitions were confirmed by the  High  Court of Allahabad in its appellate jurisdic 257 tion
With certificates granted by the High Court these two appeals have been preferred by the appellant s and their partner Mohan Lal
The High Court held that by the notification dated February 15 1950 the outstanding transactions of futures in gur did not become void that in
fixing the rate of settlement by resolution dated February 15 1950 and settling the transactions with the other contracting parties at that rate the directors acted prudently and in the interests of the Company and of the shareholders and in making payments to the parties on the basis of a settlement at that rate the directors did not commit any fraudulent act or misapply the fundsof the Company that the case of the appellants that apart from the transactions entered into by them in their firm name they had entered into other transactions benami in the names of other firms and that the Company had mala fide settled those transactions with those other firms was not proved and that the Board of Directors was and remained properly constituted at all material times and no provision of the Companies Act was violated by the directors trading with the Company
Counsel for the appellants contended a that by virtue of the Notification issued by the Central Government on February 15 1950 all outstanding futures in gur became void b that the resolution dated March 14 1949 was void because there was no quorum at the meeting of the Company c  that their solution dated February 15 1950 by the Board of Directors was not passed in the interests of the Company but to serve private interests of the directors d that the Company having
repudiated the outstanding contracts it was bound to refund the deposits received from the members and e that in any event the substratum of the Company ceased to exist and the Company could not after the Government Notification carry on business in gur
In support of his contention that by the order isued by the Central Government on February 151950 the outstanding transactions in futures in gut became void counsel for the appellants relied  upon a press note issued by the Government of India relating to the amendments made in the Sugar Futures and Options Prohibition Order 1949
In the press note apparently it was stated that all transactions in futures in sugar gur gur shakkar and rab made before the commencement of the order or remaining to be fulfilled  shall be void and not enforceable by law
The interpretation of the order depends not upon how the draftsman of the press note understood the notification but upon the words used therein
The relevant clauses of the Order after the amendment read as follows  2  d Futures in sugar and gur mean any agreement relating to the purchase or sale of sugar or gur on 258 a forward basis and providing for delivery at some future date and payment of margin on such date or dates as may be expressly or impliedly agreed upon by the parties
2e margin  means the difference between the price specified in an agreement relating to the purchase of or sale of sugar and gur and the prevailing market price for the same quality and quantity of sugar or gut on a particular day
2f Option in sugar or gur  means an agreement for the purchase or sale of a right to buy or a right to sell or a right to buy and sell any sugar or gut in future and includes a teji mandi and teji mandi in any sugar
On or after the appointed day no person shall a save with the permission of the Central Government in this behalf or of an officer authorised by the Central Government in this behalf enter into any futures in sugar or gur or pay or receive or agree to pay or receive any margin in connection with any such futures
b enter into any option in sugar or gur
Any option in sugar or gur entered into before the appointed day and remaining to be performed
whether wholly or in part shall be void within the meaning of theIndian Contract Act 1872 and shall not be enforceable by law
 By cl 3a all persons are prohibited save with the permission of the Central Government in that behalf from entering into futures in sugar or gut the clause also prohibits receipt or payment of or agreement to pay or receive any margin in connection with any such futures
The clause in terms operates prospectively
Clause 3b prohibits options in gut and sugar and el 4 expressly invalidates options in sugar and gut entered into before the appointed day and remaining to be performed whether wholly or in part
The contrast between the provisions relating to futures and options is striking
While imposing a prohibition on options the Central Government has also expressly provided that all outstanding options shall be void
No such provision is made in respect of outstanding futures
Counsel for the appellants however commended that when the Central Government imposed a prohibition against payment or receipt or agreement to pay or receive any margin in connection with the outstanding futures the futures were also prohibited
But the prohibition imposed against payment or receipt or  agreement to 259 or receive margin is made in connection with such futurespay and the expression such futures means futures of the like or similar kind previously mentionedi e transactions in futures to be entered into on or after February 15 1950
If it was intended by the Central Government to declare void outstanding transactions in futures the Central Government would
specifically have imposed a prohibition against payment or receipt ofor agreement to pay or receive margin in connection with
allfutures
A transaction in future in gur may be settled by payment of margin or by actual delivery and the Order does not prohibit the settlement of the transaction by specific delivery of goods
If the plea for the appellants be accepted the Central Government may be attributed a somewhat singular intention of permitting outstanding futures in gur to be carried out by giving and taking actual delivery of goods contracted for but not by payment and receipt of marginif it was intended to invalidate transactions in futures which were outstanding on February 151950 an express provision to that effect could have been made
No such provision has been made and there are clear indications in the terms of the notification which show a contrary intention
Prohibition against payment or receipt of margin money under transactions entered into after February 151950 is not redundant it was enacted presumably with a view to maintain control over the transactions made with the sanction of the Central Government
But said counsel for the appellants the resolution dated March 14 1949 which permitted the Company to enter into transactions in futures in gut was invalid because the directors who took part in the meeting were disqualified under sections 8611 h and 9lB of the Indian Companies Act 1913 and the Company could not retain money paid in pursuance of unauthorised transactions It was resolved unanimously in the meeting of the Board of Directors convened on March 14 1949 that forward transactions in gut for Phagun Sudi 15 Samvat 2006 ie March 4 1950 may be started according to the rules laid down therein
It was said that the resolution which authorised transactions of futures in gur in the manner in which the Company was carrying on its business entailed disqualification of the Directors and as the Directors were disqualified there was no quorum and no proper resolution and therefore all transactions entered into and any payment made pursuant to that resolution were invalid and the Company was bound to refund the amounts paid by the appellants from time to time
The Company had 11 directors out of these 9 directors were carrying on business with the Company
It appears that at the meeting dated March 14 1949 all the directors present were those who carried on business in futures in gur with the Company and did after March 14 1949 260 carry on that business
Under the Indian Companies Act 1913 as originally enacted there was no prohibition against a director entering into transactions with the Company and on that footing the scheme of the Company s business was devised
Under the Articles of Association no person could remain a member of the Company who was found not to  be doing any transaction or business through the Company continuously for six months and a person could be elected a director if he held 10 shares in his own name or in the name of the firm of which he was a proprietor or a partner
A director of the Company had therefore to hold ten shares and had to carry on business with the Company
If he ceased to do business for a period of six months he ceased to be a member of the Company and on that account ceased also to be a director of the Company
The Articles of Association prescribed diverse contingencies in which a director was to vacate his office but carrying on business with the Company was not made a ground of disqualification The Company had started business in the year 1931
In 1936 several important amendments were made in the Indian Companies Act 1913
By section 86F which was incorporated by Act 22 of 1936 it was provided Except with the consent of the directors a director of the company or the firm of which
he is a partner or any partner of such firm or the private company of which he is a member or director shall not enter into any contracts for the sale purchase or supply of goods and materials with the company Section 861 enumerated the Conditions or situations in which the office of  director was vacated
Insofar as the section is material it provides 1 The office of a director shall be vacated if__ h he acts in contravention of section 86F
Section 91B which was inserted by Act 11 of 1914 as modified by Act 22 of 1936 by the first sub section provided No director shall as a director vote on any contract or arrangement in which he is either directly or indirectly concerned or interested nor shall his presence count for the purpose of forming a quorum at the time of any such voteand if he does so vote his vote shall not be counted  261 After the amendment of the Indian Companies Act by Act 22 of 936 the Rules of the Company were not modified and the Company apparently carried on business in the same manner in which it was originally carrying on its business
It appears that the directors were oblivious of the requirements of section 86F and of the provisions of section 861 and section 91B and the modus operandi of the business continued to remain the same as it was previously
On the terms of section 86F1 all directors of the Company were prohibited unless the directors consented thereto from entering into contracts for the sale purchase or supply of goods and materials with the Company
On behalf of the Company it was urged that by the resolution dated March 14 1949 the directors resolved generally to sanction all transactions of the directors for the sale and purchase in commodities in which the Company carried on business and on that account notwithstanding the prohibition contained in section 86F the directors did not vacate their office
Counsel for the appellants urged that the consent of the directors contemPlated by section 86F is consent in respect of each specific contract to be entered into and no general consent can be given by the directors authorising a director or directors of the Company to sell purchase or supply goods and materials to the Company
Such a general resolution without considering the merits of each individual contract would it was urged amount to repealing the provisions of section 86F
Strong reliance was placed upon the judgment of the Bombay High Court in Walchandnagar Industries Ltd and others vs Ratanchand Khimchand Motishaw1
It is not necessary for the purpose of this case to decide whether in any given set of circumstances a general consent may be given by the Board of Directors to a director or directors to enter into contracts for sale or purchase or supply of goods and materials with the Company so as to avoid the prohibition contained in section 86F of the Indian Companies Act for in our view the resolution dated March 14 1949 cannot be challenged in view of Regulation 94 of Table A which for reasons to be presently mentioned must be deemed to be incorporated in the Articles of Association of the Company
Regulation 94 of Table A in the First Schedule is not one of the obligatory regulations which is to be deemed by section 172 of the Indian Companies Act 1913 to be incorporated in the Articles of Association
Section 18 provides In the case of a company limited by shares and registered after the commencement of this Act if articles are not registered or if articles are registered insofar as the articles do not exclude or modify the regulations 1 IIR  262 in Table A in the First Schedule those regulations shall so far as applicable be the regulations of the company in the same manner and to the same extent as if they were contained in duly registered articles
 The respondent Company is limited by shares and was registered after the commencement of the Indian Companies Act 1913 the Company has adopted special Articles of Association but there is no Article which excludes or modifies Regulation 94 of Table A and by the operation of section 18 of the Act that Regulation must be deemed to apply in the same manner and to the same extent as if it was contained in the registered articles of the Company
We are unable to hold that because the Company has not incorporated regulation 94 of Table A in its Articles of Association an intention to exclude the applicability of the regulation to the Company may be inferred
Regulation 94 of Table A is not expressly excluded by the Articles of the Company that is common ground
It is not excluded by implication for it is not inconsistent with any other express provision in the Memorandum of the Articles of Association
It therefore
follows that Regulation 94 must be deemed to be incorporated in the Articles of Association of the Company
That Regulation provided All acts done by any meeting of the directors or of a committee of directors or by any person acting as a director shall notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such directors or persons acting as aforesaid
or that they or any of them were disqualified be as valid as if every such person had been duly appointed and was qualified to be a director
 There is no evidence that the directors were aware of the disqualification which would be incurred by entering into contracts of sale or purchase or supply of goods with the Company without the express sanction of the directors
By the subsequent discovery that they had incurred disqualification because they had entered into contracts with the Company for sale or purchase or supply of goodsthe resolution passed by them is not rendered invalid
It is in the view we have taken unnecessary to decide whether section 86 of the Indian Companies Act 1913 also grants protection to acts done by directors who are subsequently discovered to be disqualified
Section 91B imposes a prohibition against a director voting on any contract or arrangement in which he is either directly or indirectly concerned or interested
But the directors of the Company are not shown to have voted on any existing contract or 263 arrangement
At the meeting dated March 14 1949 they resolved that the Company shall commence business in futures in gur according to the rules set forth in the resolution
Thereby the directors were not voting on a contract or arrangement in which they were directly or indirectly concerned or interested
It must then be considered whether the resolution of February 15 1950 was passed by the Board of Directors with a view dishonestly to make profit for themselves and for others who were purchasers and to cause loss to the appellants
In the light of the situation prevailing on February 15 1950 in our judgment the Board of Directors acted in passing the resolution as prudent businessmen for the protection of the interests of the Company and the members
Since the promulgation of the sugar and Gur Futures and Options Prohibition Order 1950 if any member of the Company failed to pay the margin the Company could not enter into a reverse transaction
That was prohibited
Whereas the outstanding transactions were valid a very important sanction which the Company could impose against the member who failed to pay the margin became ineffective
It was therefore necessary in the interest of the Company to devise an effective scheme for settlement of those transactions
Again in view of the imposition of severe restrictions by the Government on transport of gut by rail or by mechanised transport it was well nigh impossible for the members to give or take delivery of gut
It was therefore resolved that all outstanding contracts shall be settled at the rate prevailing on the evening of February 14 1950
It may be recalled that on January 7 1950 the Board of Directors had resolved because the prices of gur were spiraling that all outstanding transactions in gut will be settled at the rate of Rs 178  per maund whatever may be the price ruling at the date of settlement
The appellants had sold 1123 Bijaks of gut at an average rate of Rs 12139 per maund and those transactions in futures were not invalidated by the notification issued by the Government
But since No reverse transaction to protect the Company against loss if a member failed to pay margin was possible the only practical way out was to provide for settling the outstanding transactions
This the Board of Directors did by taking the rate which was prevailing in the evening of February 14 1950 as the rate of settlement of all the outstanding transactions
The resolution however did not put an end to the outstanding contracts as on February 15 1950 the resolution merely fixed the rate at which the transactions were to be settled on the due date the possibility of any fresh transactions in futures so long as the Order remained in force being completely ruled out
It may be noticed that the appellants  representative was present at the meeting and he was apparently heard
Whether or not he agreed to the passing of the resolution iS immaterial
But we are unable to hold that the resolution was passed with a view 264 to benefit the directors it appears that the resolution was passed with a view to protect the interests of the Company and its members
But it was urged that simultaneously large amounts were tended to be paid to the members who had purchase contracts outstanding and for that purpose it was resolved to borrow money from the Allahahad Bank and the Central Bank of India Ltd This it was urged disclosed anxiety on the pan of the directors to appropriate to themselves the liquid funds and to deprive the appellants of the benefit of any fall in the prices after February 15 1950
It is true that in the books of account of the Company the transactions were shown to have been settled as on February 14 1950
But we agree with the High Court that the entries in the books of account of the Company were not in accordance with the resolution and no intimation was given to any of the members of the Company that the transactions were so closed
There is no clear evidence about the dates on which payments were made to the purchasers in respect of their out
standing transactions
But that in our judgment is not material
It appears from the agreed statement flied before the Company Judge that if the seller made a deposit to cover the rise in prices the purchaser was entitled to withdraw from the Company the profit which he had made under his cross transaction
even before the date of settlement
It was clearly contemplated that when a seller deposited the difference between the price at which he had agreed to sell gut for future delivery the ruling rate being higher than the rate at which he had agreed to sell it was open to the purchaser to approach the Company and to call upon it to pay him the profit
Whether or not this right was strictly enforced is irrelevant
It appears from Ext
D 10 that as many as 133 persons having sale transactions had made deposits of diverse amounts with the Company aggregating to Rs 363893229
The purchasers under the corresponding transactions were entitled to withdraw the profits
earned by them out of the deposits so made
By allowing the purchasers to withdraw the amounts which they were entitled to under the business rules of the Company after the contracts were frozen the directors of the Company acted according to the rules and not contrary thereto
The attitude of the appellants in respect of the outstanding contracts since February 15 1950 has also an important bearing
On February 23 1950 the management of the Company addressed a letter informing the appellants that in the interests and for the benefit of the trade the Board of Directors had passed a resolution on February 15 1950 to settle the outstanding transactions at the rate prevailing in the market on February 14 1950 That resolution it was stated was for the benefit of the appellants 265 but if the appellants wanted to deliver the goods they should intimate the date and place on which they were prepared to give delivery of goods according to the outstanding contracts on Phagun Sudi 15 Sam vat 2006 in terms of the rules and bye laws of the Company
The appellants denied having received this letter  But we are unable to accept that denial
On March 1 1950 the appellants wrote a letter stating that because of the notification issued by the  Central Government the performance of the contracts had become impossible and that the Company was liable to refund all the amounts deposited with interest thereon and that the illegal settlement dated February 15 1950 amounted to repudiation of the contracts by the Company and those contracts stood rescinded
The appellants apparently insisted that the transactions became impossible of performance in view of the prohibition contained in the notification published by the Central Government and contended that the resolution amounted to repudiation of the contracts by the Company
But by the resolution in our judgment there was no repudiation of the contracts by the Company
The contracts if they were to be settled by payment of differences could be settled on the due date at the rates fixed it was however open to the appellants to deliver goods under the contracts if they desired to do so
The plea that there was frustration of the contracts and on that account the Company was liable to refund all the amounts which it had received has no substance
As we have already held the outstanding contracts were not at all affected by the Government Order
Imposition by the Central Government of a prohibition by its notification dated March 1 1950 restraining persons from offering and the Railway Administration from accepting for transportation by rail any gr except with the permit of the Central Government from any station outside the State of Uttar Pradesh which was situated within a radius of thirty miles from the border of Uttar Pradesh does not lead to frustration  of the contracts
Fresh contracts were prohibited but settlement of the outstanding contracts by payment of differences was not prohibited nor was delivery of gut in pursuance of the contract and acceptance thereof at the due date by the Company prohibited
The difficulty arising by the Government orders in transporting the goods needed to meet the contract was not an impossibility contemplated by section 56 of the Contract Act leading to frustration of the contracts
Finally it was urged that by reason of the notification issued by the Central Government the substratum of the Company was destroyed and no business could be carried on by the Company thereafter
11 was said that all the liquid assets of the Company were disposed of and there was no reasonable prospect of the Company commencing or carrying on business thereafter
266 The Company was carrying on extensive business in futures in gut but the Company was formed not with the object of carrying on business in futures  in gut alone but in several other commodities as well
The Company had immovable property and liquid assets of the total value of Rs 254000
There is no  evidence that the Company was unable to pay its debts
Under section 162 of the Indian Companies Act the Court may make an order for winding up a Company if the Court is of the opinion that it is just and equitable that the Company be wound up
In making an order for winding up on the ground that it is just and equitable that a Company should be wound up the Court will consider the interests of the shareholders as well as of the creditors
Substratum of the Company is said to have disappeared when the object for which it was incorporated has substantially failed or when it is impossible to carry on the business of the Company except at a loss or the existing and possible assets are insufficient to meet the existing liabilities
In the present case the object for which the Company was incorporated has not substantially failed and it cannot be said that the Company could not carry on its business except at a loss nor that its assets were insufficient to meet its liabilities
On the view we have taken there were no creditors to whom debts were payable by the Company
The appellants had it is true filed suits against the Company in respect of certain gur transactions on the footing that they had entered into transactions in the names
of other persons
But those suits were dismissed
The business organisation of the Company cannot be said to have been destroyed merely because the brokers who were acting as mediators in carrying out the business between the members had been discharged and their accounts settled
The services of the brokers could again be secured
The Company could always restart the business with the assets it possessed and prosecute the objects for which it was incorporated
It is true that because of this long drawn out litigation the Company s business has come to a stand still
But we cannot on that ground direct that the Company be wound up
Primarily the circumstances existing as at the date of the petition must be taken into consideration for determining whether a case is made out for holding that it is just and equitable that the Company should be wound up and we agree with the High Court that no such case is made out
The appeals fail and are dismissed with costs
One hearing fee


Summary:
The respondent company registered under the Indian Companies Act 1913 was formed for the purpose of carrying on the business of an exchange in various commodities including gur and started its business in 1931
The Articles of Association of the Company provided that no person could remain a member of the company who was found not to be doing any transaction or business through the company
The Board of Directors of the company on March 14 1949 passed a resolution sanctioning transactions in futures  in gut
All the directors present at the meeting were those who carried on business in futures  in gut with the company and did after March 14 1949 carry on that business
The company s business was devised on the basis of the Companies Act 1913 as Originally enacted when there was no prohibition against a director entering into transactions with the company
Even after the Amendments to the Company s Act by Act 22 of 1936 which imposed disqualification on directors entering into transactions with their companies the modus operandi of the business of the company continued to remain the same as it was previously
The appellant company qualified for membership of the respondent company and entered into dealing with it in futures  in gut and deposited large amounts with the respondent in respect of their transactions
On February 15 1950 the Government of India issued a notification amending the Sugar Futures  Options Prohibition Order and made it applicable to futures  and Options in Gur
By that order no person could after the appointed day enter into future  in gur or pay or receive or agree to pay or receive any margin in connection with any such futures
 The Board of Directors of the respondent on February 15 1950 resolved to settle outstanding transactions at the prevailing rate on the closing day of February 14 1950
The appellants then filed a petition for winding up of the Company
The High Court dismissed the petition
In appeal to this Court it was contended that i by virtue of the notification dated February 15 1950 all outstanding transactions in futures  in gut became void ii the resolution dated March 14 1949 which permitted the company to enter into transactions in futures  in gut was invalid since the directors who took part in the meeting were disqualified under sections 8611h and 91 B of the Indian Companies
Act 1913 as amended by Act 22 of 1936 and the company had not incorporated in its Articles Regulation 94 of Table A which validated acts done by directors when disqualifications attaching to them were subsequently discovered iii the resolution dated February 15 1950 was not passed in the interests of the company and the resolution amounted to repudiation 253 of the contracts by the company and iv by reason of the notification by the Government the substratum of the company was destroyed and no business could be carried on by the company thereafter
HELD No Case was made out for winding up of the company
i The notification prohibiting transactions in futures  in gut operates only prospectively
The prohibition imposed against payment or agreement to pay or receive margin is made in connection receipt or agreement and the expression such  futures  means transactions in futures to be entered
into on or after the date if the notification
No express provision has been made to invalidate outstanding transactions in futures  and there are clear indications in the terms of the notification which show a contrary intention
259 A D ii The resolution dated March 14 1949 cannot be challenged in view of Regulation 94 of Table A
By the operation of section 18 of the Companies Act the Regulation must be deemed to be incorporated in the Articles of Association of the CompanYThe Regulation was not expressly excluded by the Articles it was not excluded by implicationbecause it was not inconsistent with any other express provision in the Angeles
There is no evidence that the directors were aware of the disqualification which would be incurred by entering into transactions with the company without the express sanction of the directors and by the subsequent discovery of such a disqualification the resolution was not rendered invalid
262 C G Section 91 B imposes a prohibition against a director voting on any contract or arrangement in which he is directly or indirectly concerned interested
By passing a resolution that the company shall commence or 
By passing a in gur the directors were not voting on a contract or business in futures
in gur the directors were not voting on a contract or arrangement in which they were directly concerned
262 H 263 B iii In passing the resolution dated February 15 1950 the Board of Directors acted in the light of the situation prevailing then as prudent businessmen for the protection of the interests of the company and its members
Since after the notification
no reverse transaction to protect the company against loss if a member failed to pay margin was possible the company had to devise effective means to settle the outstanding transactions
The resolution did not put an end to outstanding contracts it merely fixed the rate at which transactions were to be settled on the due date the possibility of any fresh transactions in futures so long as the notification remained in force being completely ruled out
The contracts if they were to be settled by payment of differences could still be settled on the due date at the rates fixed and it was open to the appellants 10 deliver goods  under the contract if they desired to do so
Imposition by the Central Government of a prohibition by its notification dated March 1 1950 restraining persons from offering and the Railway administration from accepting for transportation by rail any gur except with the permit of the Central Government does not lead to frustration of the contracts
263 C H 265 C D iv In the present case the object for which the company was incorporated has not substantially failed and it cannot be said that the company could not carry on its business except at a loss nor that its assets  were insufficient to meet its liabilities
Primarily the circumstances existing  at  the date of the petition must be taken into consideration for determining whether a case is made out for holding that it is lust and equitable that the company should be wound up 266 C D LISup
C168 2 254