Mujibur Rahman Vs. Registrar Joint Stock Co., (Muhammad Khurshid Alam Sarkar, J.)

Case No: Company Matter No. 276 of 2018

Judge: Muhammad Khurshid Alam Sarkar, J

Court: High Court Division,

Advocate: Mr. Manirul Islam Khan, Advocate,

Citation: 2019(1) LNJ

Case Year: 2019

Appellant: Md. Mujibur Rahman Chowhary

Respondent: The Registrar of Joint Stock Companies and Firms and another

Subject: Companies Act

Delivery Date: 2019-11-27

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Muhammad Khurshid Alam Sarkar, J

 

Judgment on

23.01.2019

}

}

}

}

}

Md. Mujibur Rahman Chowhary

. . .Petitioner

-Versus-

The Registrar of Joint Stock Companies and Firms and another

. . .Respondents

Companies Act (XVIII of 1994)

Section 81(1)

Any AGM, except the first AGM, of every company must be held for each Gregorian calendar year within the same Gregorian calendar year (i.e. not exceeding 31st December of the same Gregorian calendar). In other words, the AGM for each Gregorian calendar year shall be held on any date before or on the 31st December of the concerned calendar year, inasmuch as the last Proviso to Section 81(1) of the Companies Act makes a mandatory provision for the Registrar of the Joint Stock Companies & Firms that the latest date for holding the AGM of any company is “the 31st December of the calendar year in relation to which the annual general meeting is required to be held”.                                                         . . .( 12)

Companies Act (XVIII of 1994)

Section 81(1), 183(2)(b)(i) & 183(4)

Preparation of the Balance Sheet or Financial Report for an entire calendar year (i.e. 1st January to 31st December or for a total period of 12 (twelve) months) is not the requirement of law. If any company counts its financial year from 1st July to 30th June, then there should not be any problem for the said company to hold AGM within 31st December after conducting its audit and observing other legal formalities in July or in the subsequent months. But the companies who count their financial year from 1st January to 31st December, they have the liberty to hold AGM after preparation of their Balance Sheet for a period of 9 (nine) to 12 (twelve) months, as per their convenience.                                                          . . . (12)

Companies Act (XVIII of 1994)

Section 81(1), 183(2)(b)(i) & 183(4)

Regulations 50, 51 and 109

The intent of the Legislature was that the companies must hold their AGM at any point of time from 1st July to 31st December upon preparation of their Balance Sheet for the financial year ending on 30th June so that the companies can smoothly call and hold their AGM after observing the necessary formalities as to conducting audit, issuance of notice, preparation of the reports by the Board of Directors and the Auditor. However, for any reason at the time of holding the AGM, if the dividends are not declared, Balance Sheet and/or directors’/ auditors’ report were not considered, remuneration of the auditor could not be fixed or the directors could not be elected, it can be done in any EGM subject to the condition that that the aforesaid business shall not be called/termed as special business. If preparation of ‘Financial Report’ for the calendar year i.e. from 1st January to 31st December is required to be done under any other law, it can be done separately by the companies.          . . .(12)

Companies Act (XVIII of 1994)

Section 183(4)

Since Section 183(4) of the Companies Act does not religiously require a ‘Balance Sheet’ or ‘Financial Report’ to be prepared for a calendar year (from 1st January to 31st December), the period may be either for twelve months from 1st July to 30th June or for a period of less than 12 months (1st January to 30th September/31st October/30th November/31st December). However, when the Balance Sheet is prepared for a period less than 12 months, it would be prudent for the Board of Directors and Auditor to furnish the reasons thereof in their respective reports for non-preparation of 12 months’ Balance Sheet.            . . . (12)

Companies Act (XVIII of 1994)

Section 82

For every calendar year, a company shall mandatorily call, hold and conduct an AGM. However, for example, if the AGM of the calendar year 2016 is held on 01.09.2016, the AGM of the calendar year 2017 must be held within 01.12.2017 and not on 02.12.2017 or afterwards. If any company holds its AGM of a particular calendar year in the next calendar year, it shall incur penalty under Section 82 of the Companies Act.            . . .(13)

Companies Act (XVIII of 1994)

Section 85

The provisions of Section 85(3) of the Companies Act are applicable to any type of meetings of any incorporated company, which include Statutory Meeting, Board Meeting, Extraordinary General Meeting (EGM) and Annual General Meeting (AGM) and when any impracticability arises in calling or holding or conducting any types of meeting, the Court may interfere to facilitate the meeting to that end. The discretion granted under Section 85(3) of the Companies Act should be used sparingly with caution. Before exercising its discretion, the Court must be satisfied that the application has been made bona fide in the larger interest of the company for removing a deadlock otherwise irremovable.                                      . . . (17)

Interpretation of statute

The term ‘impracticable’ is to be meant impracticable from a reasonable point of view, for, the law does not require to exist an ‘impossible’ scenario.        . . . (17)

Companies Act (XVIII of 1994)

Section 81(2)

Any member of a company is entitled to apply to this Court for calling, holding and conducting its AGM and, additionally, provisions of Section 85(3) of the Companies Act empower the Court to suo motu call, hold and conduct the AGM of a company when it becomes impracticable to call and conduct its AGM as per the provisions of the Companies Act or Articles of the company.          . . .(20)

Companies Act (XVIII of 1994)

Section 183, 184, 210 and 213(3)

The Companies Act has not delineated the items/agenda for the Companies’ AGM, nor has it categorized the types of businesses required to be taken up and transacted in the AGM, except enshrining that the presentation of the balance sheet together with the profit & loss account shall be prepared in accordance with the provisions of Section 183, presentation of a report shall be prepared by the Board of Directors as per the provisions of Section 184, an auditor of the company shall be appointed as per Section 210 and an audit report shall be presented by the auditor as per the provisions of Section 213 (3) of the Companies Act. . . .(23)

Companies Act (XVIII of 1994)

Schedule 1 Section 96 and 97

Dhaka Stock Exchange (Listing) Regulations, 2015

Regulation 32

Election of directors and declarations of dividends are required to be taken up and transacted in a ‘general meeting’ and, AGM being the general meeting, usually it is the practice of the companies to elect the director/s of the company, to declare dividends, arrange gala function, etc. in the AGM. However, declaration of dividend is not a mandatory business to be transacted in the company’s AGM, for, it may be declared in any general meeting as provided in Regulation 96 under Schedule 1 of the Companies Act, and Regulation 97 of the Schedule 1 of the Companies Act mandates the directors of the company to pay interim dividend from time to time. Moreso, Regulation 32 of the Dhaka Stock Exchange (Listing) Regulations, 2015 makes provisions for the companies to proceed with the company’s AGM without declaring the dividend where there is any litigation pending before the Court.                                                . . . (23)

Dhaka Stock Exchange (Listing) Regulations, 2015

Regulation 32

Considering the importance of annual general meeting of shareholders, it has been held in a catena of cases of all the jurisdictions of the world that the directors must call the meeting, even though the company is not functioning or the management of the entire business of the company is vested in the Government. Taking into consideration the observations made by the Court, the Dhaka Stock Exchange has made provisions in the Dhaka Stock Exchange (Listing) Regulations, 2015 that AGM of the companies cannot be halted on the plea of pendency of any litigation in any Court on the issue of declaration of dividend. AGM is the only occasion of the public company where the general share-holders get the opportunity to quiz the directors of the company about different aspects of the company.                                                             ... (25)

Companies Act (XVIII of 1994)

Schedule 81 and 85(3)

The company Court is empowered not only to direct the company to call the AGM/s which have not been called, held and conducted due to interference of this Court or for some other reasons which were beyond the control of the company, but also, if the Court thinks it expedient, it may give, as the ancillary relief,  required directions for calling, holding and conducting the AGM/s fallen due and, in order to implement the Court’s direction for holding the AGM/s, the Company Court may consider to pass some other consequential order/s and direction/s, such as (i) appointment of the auditor for the company as per the choice of the Court, for, the company and the Court-appointed auditor often involves in dispute regarding amount of the auditor’s fees and, ultimately, they again approach this Court for its resolution (iii) schedule of time and date of the AGM, (iv) selection of the venue of the AGM and, if necessary, some other appropriate ancillary orders/directions. Since it is the requirement of laws that an audited balance sheet, profit & loss account and summary of the property, assets, shares, capital and liabilities must be presented in the AGM, if this Court simply passes direction upon the company to call and hold the AGM/s fallen due, there may be a delay again for not passing appropriate orders on the aforesaid connected issues. The Legislature has, thus, not only empowered this Court to suo motu call, hold and conduct the meeting of the company, but it has also vested this Court with the power of granting any consequential and ancillary direction upon the company or other concerns to do the needful for the purpose of calling, holding and conducting the company’s meeting fruitfully without putting the company into further hassle of approaching this Court separately for ancillary issues connected with the calling, holding and conducting the company’s meeting.        . . .(26)

Companies Act (XVIII of 1994)

Schedule 396 (1) and (2)

If no proceeding has been drawn against the company/its director/officer for failure to comply with any provisions of the Companies Act, the delinquent company/its director/officer may file an application for exoneration from the fine/penalty and, in the event that any proceeding for failure to comply with the provisions of the Companies Act is pending before the competent Court, the Company Court would not deal with the issue of fine/penalty and simply deal with the issues of civil nature, such as condonation of  delay towards enabling the company to do the needful in compliance with the various provisions of Companies Act. Following holding that this Court is well empowered to deal with an application under Section 396 of the Companies Act, it is now incumbent upon me to see whether the delinquents should be penalized or they deserve mercy of this Court. At the very outset, I would say that it was their duty to approach this Court long ago to seek permission for holding the AGMs of the calendar years 2016 & 2017. However, in view of the findings made hereinbefore that the company’s AGM for the year 2016 has not been held due to misconception of law and due to pendency of the two Writ Petitions before the Division Benches of this Court wherein the company was restrained to hold its AGM resulting in becoming impracticable for the company to call, hold and conduct AGMs of the company as per the provisions of the Act as well as the Articles of Association of the company, without the interference of this Court, I see it justified to opine that the company or its responsible directors/ officers should not be penalized for delay in holding the AGMs.     . . .(28)

 

Meenakshi Mills Company Ltd. Vs. Asst. Registrar of Joint Stock Companies, AIR 1938 Mad 640; Gibson Vs. Barton, (1875) L.R. 10 Q.B. 329; Case of Park Vs Lawton (1911) L.R 1 K.B. 588 and Creative Engineers Ltd Vs.  RJSC 2018(2) 13 ALR ref.

Mr. Manirul Islam Khan, Advocate

. . . For the petitioner

No One appears

. . . For the respondents

JUDGMENT

Muhammad Khurshid Alam Sarkar, J.  By filing this application under Section 81(2) read with Sections 85(3) and 396 of the Companies Act, 1994 (briefly, the  Companies Act), the petitioner prays for calling and holding the Annual General Meeting (AGM) of the company, named, First Finance Limited (hereinafter, referred to either as the respondent no. 2 or the company) for the calendar year 2016, upon condoning the delay that already took place in holding the aforesaid AGM, and, also, for exonerating the company and/or its officers from the penalty/fine incurred for default.

2.             It is stated in the petition that the petitioner is a shareholder of the company, which was incorporated on 28.06.1993, as a public company limited by shares, with the Registrar of Joint Stock Companies and Firms (RJSC) under the name and style of “First Lease International Limited”, which was renamed on 29.06.2014 as “First Finance Limited”. Subsequently, the company was listed with the Dhaka Stock Exchange Limited (DSE). The authorized share capital of the company is Tk. 5,00,00,00,000.00 (five hundred crore) divided into ordinary shares of Taka 10.00 each and as of 31.10.2018, the total paid-up capital is Taka 116,22,02,580.00 and the total paid-up securities are 11,62,20,258 out of which 42.45 percent are held by the sponsor directors, 18.44 percent are held by Institutions and 40.11 percent are held by the public at large. A shareholding report has already been filed on 05.11.2018 to the DSE. The company is established, inter alia, to undertake the business of leasing plant, machinery and equipment in Bangladesh and also to carry on the business of issuing and depositing any securities which the company has power to issue by way of mortgage, to secure any sum less than the nominal amount of such securities and all other business, as enshrined in the object clauses of the Memorandum of Association (MOA) of the company. Since the incorporation, the company has been operating business successfully and holding AGM regularly and the last AGM for the calendar year 2015, which is the 23rd AGM, was duly held on 09.06.2016.

3.             The company announced the date of the 24th AGM to be held on 15.06.2017 and, accordingly, notices were published on 28.04.2017 in the Daily Ittefaque and the Asian Age. However, one Mr. Md. Anwarul Islam filed Writ Petition No. 8911 of 2017, whereupon a Division Bench passed an Order of injunction restraining the concerned parties from holding AGM of the company scheduled to be held on 15.06.2017 for a period of six months upon issuing a Rule. When the company contested the Rule, their Lordships were pleased to dispose of the case on 10.08.2017 vacating the Order of injunction. Afterwards, the company again proceeded to hold the 24th AGM and declared 30.08.2017 as the schedule date of the said AGM. Notices for holding AGM were published on 18.08.2017 in the Daily Bonik Barta and in the Financial Express. However, the same person, Mr. Md. Anwarul Islam again filed another Writ Petition being Writ Petition No. 11650 of 2017 challenging the Bangladesh Bank’s decision permitting the company to declare 5% ‘stock dividend’, whereupon a Division Bench of this Court stayed the Bangladesh Bank’s aforesaid decision for three months upon issuance of a Rule, which is pending for disposal, although the Order of stay has not been extended subsequently. Further, one Mr. Md. Ibrahim Khalil filed Writ Petition No. 12827 of 2017, whereupon a Division Bench of the High Court Division passed an Order on 29.08.2017 restraining the company from holding the AGM scheduled to be held on 30.08.2017 for a period of two months from date. This Order of injunction was extended on 25.10.2017 for a further period of three months from the date of expiry and, thereafter, no extension was obtained by the petitioner. Due to the Orders of the High Court Division in the aforesaid Writ Petitions, the Board of Directors could not hold the AGM in due time. It is stated that no proceeding has been drawn against the company for failure to hold the company’s AGM within the time stipulated in the law.

4.             It is further stated that the accounts of the company are ready and the same have been audited and, also, the Board of Directors of the company has approved the audited accounts, the balance sheet and the financial report dated 31 December 2016. Meanwhile, the financial report of the calendar year 2017 has also been made ready. The company now intends to hold both the 24th and 25th Annual General Meetings consecutively, which may be at the same venue but on a different date. Hence, this application for permitting the company to hold the AGMs of the company. 

5.             Mr. Manirul Islam Khan, the learned Advocate for the petitioner, submits that the Board of Directors was always ready and willing to hold the AGM within a period of fifteen months from the last AGM and there were no laches, lapses or negligence on their part in this regard. He further submits that there is no fault on the part of the Board of Directors under Section 81(1) of the Companies Act, as they have called the AGM within the fifteen months from the last AGM. In elaborating his above claim, he submits that the last AGM, for the calendar year 2015 being the 23rd AGM, was held on 09.06.2016 and the AGM for the calendar year 2016 was scheduled to be held on 15.06.2017 and, thus, the company should not be held as a defaulter in complying with the provisions of Section 81(1) of the Companies Act.

6.             He argues that the company has failed to hold the AGM under Section 81(1) of the Companies Act for the calendar year 2016 because of the interference of the Court and, thus, the petitioner has no other option but to file this application before this Court under Section 81(2) of the Companies Act for appropriate Orders and Directions so that the aforesaid AGM of the company together with the AGMs for the subsequent calendar years may be called, held and conducted in such manner as this Court may deem fit and proper. He next submits that since the delay in holding the aforesaid AGM was caused due to the factors beyond the control of the Board of Directors, the petitioner and the company as a whole, this Court may condone the same for ends of justice towards calling or directing the calling of the said meetings of the company to be held and conducted in such manner and subject to such ancillary and consequential directions as this Court may deem expedient.

7.             In reply to the queries made by this Court as to (i) why the company did not stand as a petitioner in this case, (ii) why the petitioner is taking the burden of approaching this Court and (iii) why he is not pressurizing the company to take necessary steps for quick disposal of the two Writ Petitions, he informs this Court that the company is trying its best to conduct the hearing of these two Rules, but the Division Benches of this Court are too busy to take up the said Rules. He, as a reply to the above queries, continues to submit that this application has been filed bonafide in the interests of the company and its shareholders and in order to regularize the affairs and records of the company and thereby to comply with the statutory requirements and, if the delay is condoned and the company is directed to hold the AGM, no one shall suffer any loss or be prejudiced in any way.

8.             He contends that although this application has been filed for extension of time for holding 24th AGM in the meantime, the time of 25th AGM has also expired and, accordingly, he prays that the company should be allowed to call, hold and conduct not only the 24th AGM of the company, but also the subsequent AGMs which have fallen due by now. Lastly, he submits that if any penalty has been incurred under the provisions of Section 82 of the Companies Act, this Court is well empowered to relieve the company and its directors/officers of the said penalty, since no proceeding has been drawn against the company as yet.

9.             No one appears to oppose the petition.

10.         After consideration of the statements made in the substantive petition & the supplementary affidavits together with the documents annexed therewith as well as the submissions of the learned Advocate for the petitioner, I find that the following issues are to be adjudicated upon by this Court; (i) whether the company fixed the date for holding the 24th AGM within the statutory period or it failed to schedule the date for its 24th AGM within the statutory time-limit, (ii) whether it has become impracticable to call and hold the AGM/s of the company, (iii) if it surfaces that the company defaulted in complying with the provisions of Section 81(1) of the Companies Act in holding the 24th AGM, whether the petitioner is competent to file this application before this Court, (iv) whether the approach of the petitioner before this Court for filing this petition is bonafide, when apparently two Writ Petitions challenging the legality of the decision regarding 5% ‘stock dividend’ are pending before the Division Bench of this Court, (v) whether the 24th AGM can be directed to be held without declaring the dividend until the aforesaid two Writ Petitions are disposed of by the Division Bench of this Court, (vi) whether this Court is empowered to direct calling, holding and conducting the further AGM, which have fallen due during the pendency of this case, (vii) whether the company and its directors & officers have incurred penalty under Section 82 of the Companies Act, (viii) if there has been a penalty, whether this Court is competent to deal with the matter and (ix) whether the company and its directors/officers can be relieved of the penalty.

11.         Let me examine, at first, as to whether the company has failed to comply with the provisions of Section 81(1) of the Companies Act to call and hold its 24th AGM. In order to deal with this issue, it would be profitable if the provisions of Section 81(1) of the Companies Act are known:

81. Annual general meeting-(1) Every company shall in each year of the Gregorian calendar hold in addition to any other meetings a general meeting as its annual general meeting and shall specify the meeting as such in the notices calling it; and not more than fifteen months shall elapse between the date of one annual general meeting of a company and that of the next:

Provided that a company may hold its first annual general meeting within a period of not more than eighteen months from the date of its incorporation; and if such general meeting is held within that period, it shall not be necessary for the company to hold any annual general meeting in the year of its incorporation or in the following year;

Provided further that the Registrar may, on an application made by a company within thirty days from the date of expiry of the period specified for holding the annual general meeting as aforesaid, extend the time within which any annual general meeting, not being the first annual general meeting shall be held, by a period not exceeding ninety days or not exceeding the 31st December of the calendar year in relation to which the annual general meeting is required to be held, whichever is earlier.

(underlined by me)

12.         My plain understanding of the wordings employed in the above law is that any AGM, except the first AGM, of every company must be held for each Gregorian calendar year within the same Gregorian calendar year (i.e. not exceeding 31st December of the same Gregorian calendar). In other words, the AGM for the each Gregorian calendar year shall be held on any date before or on the 31st December of the concerned calendar year, inasmuch as the last Proviso to Section 81(1) of the Companies Act makes a mandatory provision for the Registrar of the Joint Stock Companies & Firms that the latest date for holding the AGM of any company is “the 31st December of the calendar year in relation to which the annual general meeting is required to be held”. From a conjoint reading of the entire provisions of Section 81(1) with the provisions of Sections 183(2)(b)(i) & 183(4) of the Companies Act, I am of the view that at the time of holding an AGM, preparation of the Balance Sheet or Financial Report for an entire calendar year (i.e. 1st January to 31st December or for a total period of 12 (twelve) months) is not the requirement of law. If any company counts its financial year from 1st July to 30th June, then there should not be any problem for the said company to hold AGM within 31st December after conducting its audit and observing other legal formalities in July or in the subsequent months. But the companies who count their financial year from 1st January to 31st December, they have the liberty to hold AGM after preparation of their Balance Sheet for a period of 9 (nine) to 12 (twelve) months, as per their convenience. Upon minute reading of the relevant provisions of the Companies Act, namely, Section 81(1) together with its last Proviso, Sections 183(2)(b)(i) & 183(4) and Regulations 50, 51 & 109 of  the Schedule 1 to the Companies Act, I find that the intent of the Legislature was that the companies must hold their AGM at any point of time from 1st July to 31st December upon preparation of their Balance Sheet for the financial year ending on 30th June so that the companies can smoothly call and hold their AGM after observing the necessary formalities as to conducting audit, issuance of notice, preparation of the reports by the Board of Directors and the Auditor. However, for any reason at the time of holding the AGM, if the dividends are not declared, Balance Sheet and/or directors’/auditors’ report were not considered, remuneration of the auditor could not be fixed or the directors could not be elected, it can be done in any EGM subject to the condition that that the aforesaid business shall not be called/termed as special business. If preparation of ‘Financial Report’ for the calendar year i.e. from 1st January to 31st December is required to be done under any other law, it can be done separately by the companies. All that I wish to make clear is that since Section 183(4) of the Companies Act does not religiously require a ‘Balance Sheet’ or ‘Financial Report’ to be prepared for a calendar year (from 1st January to 31st December), the period may be either for twelve months from 1st July to 30th June or for a period of less than 12 months (1st January to 30th September/31st October/30th November/31st December). However, when the Balance Sheet is prepared for a period less than 12 months, it would be prudent for the Board of Directors and Auditor to furnish the reasons thereof in their respective reports for non-preparation of 12 months’ Balance Sheet.

13.         To put the above proposition in plain words, all that I wish to say is that for every calendar year, a company shall mandatorily call, hold and conduct an AGM. However, for example, if the AGM of the calendar year 2016 is held on 01.09.2016, the AGM of the calendar year 2017 must be held within 01.12.2017 and not on 02.12.2017 or afterwards. It is a misconceived submission of the learned Advocate for the petitioner that a company is entitled to hold its AGM within fifteen months from the date of holding the preceding AGM, even entering into the next/different calendar year. If any company holds its AGM of a particular calendar year in the next calendar year, it shall incur penalty under Section 82 of the Companies Act.

14.         In the case of Meenakshi Mills Company Ltd. v. Asst. Registrar of Joint Stock Companies AIR 1938 Mad 640, it was held that a separate and distinct Annual General Meeting should be held each year. In the aforecited case, an AGM was called in December, 1934 and it was adjourned and held in March, 1935. The next meeting was held by the company in February, 1936. The company was prosecuted for not holding any meeting of the company in 1935. It was contended on behalf of the company that there was a meeting in 1934, 1935 and 1936 and as such there was no default. The Court held that the meeting of March, 1935 was not a different meeting from the one which began in December, 1934 and, as such, it was the same meeting. The company was accordingly convicted.

15.         In this case, admittedly the company held the AGM for the calendar year 2015 on 09.06.2016 and, thus, the company failed to comply with the provisions of Section 81(1) of the Companies Act. Thereafter, the company was statutorily required to hold the AGM for the calendar year 2016 on or before 31st December, 2016, but the company had scheduled the date for the AGM for the calendar year 2016 on 15.06.2017 and, therefore, I find that the company failed to comply with the law.

16.         I may now consider the issue whether it has become ‘impracticable’ for the company to call and hold the company’s AGM/s. Section 85(3) of the Companies Act provides the provisions for calling, holding and conducting the AGM of a company in an ‘impracticable’ situation.

Section 85(3): Provision as to meeting and votes-

…………………………………

…………………………………

If for any reason it is impracticable to call a meeting of a company in any manner in which meeting of that company may be called or to conduct the meeting of the company in manner prescribed by the articles or this Act, the Court may either of its own motion or on the application of any director of the company or of any member of the company who would be entitled to vote at the meeting, order a meeting of the company to be called, held and conducted in such manner as the Court thinks fit, and where any such order is given the Court may give such ancillary or consequential directions as it thinks expedient and any meeting called, held and conducted in accordance with any such order held and conducted, shall for all purposes be deemed to be a meeting of the company duly called, held and conducted.

17.         From the language employed in the above quoted Section 85(3), it appears to me that the provisions of Section 85(3) of the Companies Act are applicable to any type of meetings of any incorporated company, which include Statutory Meeting, Board Meeting, Extraordinary General Meeting (EGM) and Annual General Meeting (AGM) and when any impracticability arises in calling or holding or conducting any types of meeting, the Court may interfere to facilitate the meeting to that end. The term ‘impracticable’ is to be meant impracticable from a reasonable point of view, for, the law does not require to exist an ‘impossible’ scenario. However, the discretion granted under Section 85(3) of the Companies Act should be used sparingly with caution. Before exercising its discretion, the Court must be satisfied that the application has been made bona fide in the larger interest of the company for removing a deadlock otherwise irremovable. In the case of Lothian Jute Mills Ltd, (1950) 55 CWN 646, where there was a dispute between the shareholders of a company as to who were the lawful directors of the company and, accordingly, who were entitled to call a meeting, the Court held that it has become ‘impracticable’ to hold the company’s AGM. In the case of Indian Spinning Mills Ltd. Vs His Excellency, the King of Nepal AIR 1953 Cal 355, where a person not holding qualification shares of a director was appointed chairman and some of the directors had transferred shares to him to satisfy the requirement and this was alleged by a group of shareholders to be invalid and was the subject matter of a suit, the Court held the circumstance to be ‘impracticable’ scenario to hold the company’s AGM.  

18.         In this case, it is evident that due to the Court’s Order passed in the Writ Petition No. 8911 of 2017, the 24th AGM could not be held and, thereafter, when the company succeeded in getting the Rule discharged in the aforesaid Writ Petition, subsequently two more Writ Petitions, being writ Petition No. 11650 of 2017 and Writ Petition no. 12827 of 2017, were filed and because of the Orders passed in these two Writ Petitions, the company could not take any further step to call and hold its AGM. Therefore, I hold that it was impracticable for the company to hold its AGM.

19.         Following my above findings, that the company is in default of the provisions of Section 81(1) of the Companies Act and it has become impracticable to hold the company’s AGM/s, the next question which crops up for consideration is what step/s are to be taken and who will take up the said step/s. It means that now I need to see whether this petitioner is competent to file this petition for extension of time to call and hold the AGM of the company. In examining this issue, the relevant provisions of the Companies Act, namely, Section 81(2) of the Companies Act, needs to be looked at which are reproduced below:

Section 81(2): Annual General Meeting-

……………………………….

If a company defaults in complying with the provisions of sub-Section (1), the Court may, on the application of any member of the company, call or direct the calling of a general meeting of the company and give such ancillary or consequential direction as the Court thinks expedient in relation to the calling, holding and conducting of the meeting.

20.         From a plain perusal of the provisions of Section 81(2) of the Companies Act, it appears to me that any member of a company is entitled to apply to this Court for calling, holding and conducting its AGM and, additionally, provisions of Section 85(3) of the Companies Act empower the Court to suo motu call, hold and conduct the AGM of a company when it becomes impracticable to call and conduct its AGM as per the provisions of the Companies Act or Articles of the company. In this case, the petitioner has approached this Court as a member of the company with a prayer for holding the AGM of the company and, moreover, because of issuance of the Rules in aforementioned two Writ Petitions challenging the declaration of 5% ‘stock dividend’, it was impracticable for the company to call, hold and conduct the AGM of the company and, therefore, I hold that the petitioner is competent to file the instant application.

21.         The third issue of the case is whether the petitioner has approached this Court with clean hands or for some collateral purpose. The fact that no share-holder of the company, including the petitioners of the aforesaid two Writ Petitions, came up to oppose the instant application despite publication of the Order of this Court as to admission of the instant matter in the two widely-circulated daily national newspapers, namely, ‘the Daily Prothom Alo’ & ‘the Daily Star’ -amply suggests that the petitioner’s cause is supported by the other share-holders of the company. From the annexed papers, it transpires that the petitioner holds 1,64,287 shares of the company and it is a very normal expectation of a shareholder of any listed company that the AGM of the company would be held within/on time, so that dividends, if any, can be disbursed and the value of the share does not fall. Moreover, from the statements made in this petition, it appears to me that the petitioner has not suppressed any fact in approaching this Court and, in fact, the disclosure of the fact as to pendency of the aforementioned two Writ Petitions demonstrates his bonafides. Furthermore, it has been submitted by the learned Advocate for the petitioner that the company is trying its best through its lawyer to get the Writ Petitions disposed of and, therefore, apparently due to the Division Benches’ overwhelming preoccupation with backlog of cases, it is the Court which is not in a position to dispose of the aforementioned Writ Petitions. Thus, I do not find any ill motive behind filing this application before this Court.

22.         Now, the question which comes up for consideration by this Court is whether this Court is competent to call or direct the company for calling the 24th AGM of the company, when evidently the aforesaid two Writ Petitions wherein Order of injunction on holding the company’s AGM was passed by the Division Bench of this Court, are pending for final disposal. For arriving at a decision on this issue, besides becoming familiar with the facts/the subject matter of the aforesaid two Writ Petitions, I need to know the impact of issuance of the Order of injunction to hold the AGM of the company. The copies of both the Writ Petitions have been produced before me by the petitioner by way of annexing the same to the supplementary affidavits. From the statements made in the Writ Petitions, it appears to me that both the Writ Petitions have been filed challenging the propriety and legality of a letter issued by the Bangladesh Bank to the company granting permission to declare ‘stock dividend’ subject to fulfillment of some conditions. The grounds for challenging the said letter are that while the Bangladesh Bank had issued ‘show cause notice’ against the Managing Director, Chief Financial Officer and the Secretary of the company for being defaulters in preparation of the financial statements of the company, the Bangladesh Bank was not justified to allow the company to declare 5% ‘stock dividend’. For a better understanding of the contents of the aforesaid letter, it is reproduced herein below:

evsjv‡`k e¨vsK

(†m›U«vj e¨vsK Ae evsjv‡`k)

cÖavb Kvh©vjq

gwZwSj, XvKv-1000

evsjv‡`k

m~Î bs-wWGdAvBGg(wm)/1054/42/2017- ZvwiLt 14/06/2017

e¨e¯’vcbv cwiPvjK

dv÷© dvBb¨v›m wjwg‡UW

Rvnv½xi UvIqvi (4_© Zjv)

10g KviIqvb evRvi

XvKv-1215

wcªq g‡nv`q,

dv÷© dvBb¨v›m wjwg‡U†Wi 2016 wnmve eQ‡ii Rb¨ 5% ÷K wWwf‡WÛ †NvlYv cÖms‡M:

Avcbv‡`i 30 GwcÖj 2017, 2 †g 2017 I 6 Ryb 2017 Zvwi‡Li cÎ b¤¦i h_vµ‡g GdGdGj/GKvD›U we./2017-992 GdGdGjt GwRGg/†evW©‡m‡µ./05/2017-1031 Ges GdGdGj/GKvD›Um& GÛ dvBb¨v›m/wewe/2017-1386 Gi cªwZ `„wó AvKl©Y Kiv hv‡”Q|

2| D‡jøwLZ cηqi gva¨‡g `vwLjK…Z Avcbv‡`i †Kv¤úvbxi 31 wW‡m¤¦i 2016 Zvwi‡L mgvß wnmve eQ‡ii wbixw¶Z e¨vjv›m mxU, jvf-¶wZi wnmve, ‘Analysis for provision of interest expense’ weeiYx, cÖvmswMK `wjjvw` I Ab¨vb¨ Z_¨DcvË ch©v‡jvPbv‡šÍ wb‡gèv³ AmsMwZ/Awbqg cwijw¶Z n‡q‡Qt

2.1. wbixw¶Z e¨vjv›m mxU I jvf-¶wZi wnmve weeiYx‡Z Retained Earnings I bxU gybvdv h_vµ‡g Uvt 6,36,48,566.00 I Uvt 5,01,24,609.00 cÖ`wk©Z n‡jI ‘Analysis for provision of interest expense’ Gi mv‡_ `vwLjK…Z jvf-¶wZi wnmve weeiYx‡Z D³ LvZ؇q cÖ`wk©Z A‡_©i cwigvY h_vµ‡g (Uvt 2,47,21,892.00) I Uvt 5,17,45,027.00; A_©vr cÖK…Z A‡_© Retained Earnings FYvZ¥K;

2.2. wbixw¶Z wnmve weeiYx‡Z †gqvw` AvgvbZ Uvt 552,84,31,811.00 Gi wecix‡Z interest payable Lv‡Z Uvt 18,63,826.00 †`Lv‡bv n‡jI Accrual Basis of Accounting AbymiY Kiv n‡j GLv‡Z iw¶Ze¨ A‡_©i cwigvY `uvovq Uvt 24,33,49,539.00-hv Avcbv‡`i KZ„©K cÖYxZ ÔAnalysis for provision of interest expenseÕ weeiYx‡Z †`Lv‡bv n‡q‡Q| A_©vr interest payable Lv‡Z cÖK…Z A‡_© Uvt 24,14,85,713.00 NvUwZ i‡q‡Q| Retained Earnings ùxZKi‡Yi j‡¶¨ Giƒc Kiv n‡q‡Q e‡j AbywgZ nq-hv IAS I BAS Gi Article 27 Gi cwicš’x;

2.3.  Retained Earnings Negative nIqv m‡Z¡I 5% ÷K wWwf‡W›U cÖ`vb Avw_©K cÖwZôvb AvBb, 1913 Gi 10 avivi cwicš’x; Ges

2.4. 15 gvP© 2011 Zvwi‡Li wWGdAvBGg (Gm)1054/1/2011-155-184bs c‡Îi wb‡`©kbvbyhvqx NPL 10% ev Zvi †ekx n‡j wWwf‡W›U †Nvlbvi c~‡e© evsjv‡`k e¨vs‡Ki AbvcwË MÖn‡Yi eva¨evaKZv i‡q‡Q| Avcbv‡`i cÖwZôv‡bi NPL 33% nIqv m‡Z¡I evsjv‡`k e¨vs‡Ki AbvcwË MÖnY e¨wZ‡i‡KB 30/4/2017 Zvwi‡L 5% ÷K wWwf‡W›U cÖ`v‡bi †NvlYv DSE’i Website-G †cv÷ Kiv n‡q‡Q- hv 15 gvP© 2011 Zvwi‡Li D³ c‡Îi wb‡`©kbvi my¯úó j½b|

3| Avw_©K cÖwZôvb AvBb, 1993  Gi weavb, evsjv‡`k e¨vs‡Ki  wb‡`©kbv Ges IAS I BAS cwicš’x Giƒc Kvh©µg Avcbv‡`i A‰bwZK  I A‡ckv`vix g‡bvfv‡ei cwiPvqK Ges GKBmv‡_ K‡c©v‡iU mykvm‡biI Aš—ivq| G ai‡bi wewaewnf~©Z Kg©Kv‡Ûi Øviv †Kv¤úvbx Z_v AvgvbZKvix I †kqvi‡nvìvi‡`i ¯^v_© ¶zbœ Kiv n‡q‡Q-hvi `vqfvi Avcbviv †Kv‡bvfv‡eB Gov‡Z cv‡ib bv| GgZve¯’vq, Avw_©K cÖwZôvb AvBb, 1993 Gi 42 avivq dv÷© dvBb¨v‡›mi GgwW, wmGdI Ges †Kv¤úvbx †m‡µUvixi wei“‡× †Kb kvw¯—g~jK e¨e¯’v MÖnY Kiv n‡e bv-cÎ cªvwßi 7 w`‡bi g‡a¨ Zvi KviY `k©v‡bi wb‡`©kbv †`qv hv‡”Q|

4| Avcbv‡`i cÖwZôv‡bi mvwe©K Kg©KvÛ myPvi“iƒ‡c Ae¨vnZ ivLvi j‡¶¨ we‡kl we‡ePbvq wb‡b¥v³ k‡Z© 5% ÷K wWwf‡WÛ cÖ`v‡bi wel‡q AbvcwË ‡`qv nÕjt

4.1     Interest Payable Lv‡Z NvUwZRwbZ 24.15 †KvwU UvKv Ryb 2017 n‡Z cÖwZ ‰Îgvwm‡K mgnv‡i A_©vr 2.02 ‡KvwU UvKv K‡i AvMvgx wZb eQ‡i cÖwfkb msi¶Y Ki‡Z n‡e Ges cÖwfkb msi¶‡Yi welqwU Avewk¨Kfv‡e AÎ wefv‡M wi‡cvU© Ki‡Z n‡e; Ges

4.2     Ryb 2017 n‡Z BAS Gi Article 27 Gi wb‡`©kbvbyhvqx Accrual basis of Accounting AbymiY KiZt Avw_©K weeiYx cÖ¯‘Z Ki‡Z n‡e|

23.         Given the fact that the legality and propriety of the aforementioned decision of Bangladesh Bank is being examined by the Division Bench of this Court, I am of the view that the Company Bench being a single Bench should not dwell on the issue. However, since this application has been filed with the expectation to enable the company to hold the AGM of the company, I should see whether the Bangladesh Bank’s above-quoted decision in permitting the company to declare 5% ‘stock dividend’ in any manner is connected with the AGM of the company. The Companies Act has not delineated the items/agenda for the Companies’ AGM, nor has it categorized the types of businesses required to be taken up and transacted in the AGM, except enshrining that the presentation of the balance sheet together with the profit & loss account shall be prepared in accordance with the provisions of Section 183, presentation of a report shall be prepared by the Board of Directors as per the provisions of Section 184, an auditor of the company shall be appointed as per Section 210 and an audit report shall be presented by the auditor as per the provisions of Section 213 (3) of the Companies Act. As per the relevant provisions of the Companies Act, election of directors and declarations of dividends are required to be taken up and transacted in a ‘general meeting’ and, AGM being the general meeting, usually it is the practice of the companies to elect the director/s of the company, to declare dividends, arrange gala function, etc. in the AGM. However, declaration of dividend is not a mandatory business to be transacted in the company’s AGM, for, it may be declared in any general meeting as provided in Regulation 96 under Schedule 1 of the Companies Act, and Regulation 97 of the Schedule 1 of the Companies Act mandates the directors of the company to pay interim dividend from time to time. More so, Regulation 32 of the Dhaka Stock Exchange (Listing) Regulations, 2015 makes provisions for the companies to proceed with the company’s AGM without declaring the dividend where there is any litigation pending before the Court.

24.         In the aforesaid two Writ Petitions, the legality of declaration of ‘stock dividend’ has been challenged. The issue as to whether the directors’ decision for declaring dividend has been taken as per the provisions of Regulations 96 to 103 of the Schedule to the Companies Act or not and, further, whether the interests and rights of the shareholders are being prejudiced in any manner because of the recommendation made by the company’s Board for declaration of the ‘stock dividend’ -can be questioned before this Court by minimum of 10% shareholders by filing an application under Section 233 of the Companies Act. In these two Writ Petitions, the decisions of the Board of Directors regarding declaration of dividend has been challenged in the Division Bench of this Court, in a round-about manner by questioning the legality of issuance of Bangladesh Bank’s letter by which Bangladesh Bank granted permission to declare ‘stock dividend’. ‘Stock dividend’ is not same as ‘cash dividend’ and, also, from the papers submitted before this Court,  it transpires that the company has already complied with the conditions attached for declaration of the 5% ‘stock dividend’ as contained in the letter issued by the Bangladesh Bank and, therefore, it would certainly be an issue for the Division Bench to adjudicate upon as to whether there is any illegality and/or whether the company shall suffer any financial loss because of declaration of the ‘stock dividend’ against the backdrop of the fact that the company has already complied with all the conditions imposed by the Bangladesh Bank. Since the above-discussed issue is to be examined and adjudicated upon by the Division Bench, I refrain from dwelling on this issue.

25.         The issue to be adjudicated upon by this Court is whether the company’s AGM can be called and held without declaring the company’s dividend, and the answer thereto I have already got from the examination of Regulation 96 of the Schedule of the Companies Act that it may be declared in any general meeting which may be called at any time subsequent to holding the AGM of any company. Considering the importance of annual general meeting of shareholders, it has been held in a catena of cases of all the jurisdictions of the world that the directors must call the meeting, even though the company is not functioning or the management of the entire business of the company is vested in the Government. Taking into consideration the observations made by the Court, the Dhaka Stock Exchange has made provisions in the Dhaka Stock Exchange (Listing) Regulations, 2015 that AGM of the companies cannot be halted on the plea of pendency of any litigation in any Court on the issue of declaration of dividend. AGM is the only occasion of the public company where the general share-holders get the opportunity to quiz the directors of the company about different aspects of the company. Since the Writ Petitioners in the aforementioned two Writ Petitions have raised the question of legality of the Board’s recommendation for declaration of 5% ‘dividend stock’, it would be a great opportunity for them to ask the directors about the issue and, upon getting a satisfactory answer, they might agree to the decision taken by the Board of Directors regarding declaration of ‘stock dividend’ and, that is how, their grievance might be mitigated and the company might be in a position to declare the dividend unanimously in the AGM.  In view of the fact that, currently, there is no injunction Order in operation in the aforesaid two Writ Petitions, I hold that the AGM of the company, named, First Finance Limited, may be called, held and conducted at any time from now without declaring the ‘stock dividend’ in the AGM.     

26.         Now, the next issue comes up for consideration whether the Court is empowered to call or to direct for calling, holding and conducting the further AGMs, which have fallen due during the pendency of this case. In other words, I need to examine the question as to whether this Court would direct the company to call only the 24th AGM, as prayed for in this petition; or this Court should direct the company to call all the AGMs which have fallen due by now. Under the mandate provided in Section 81(2) of the Companies Act in the following expressions “the Court may ……… give such ancillary or consequential direction as the Court thinks expedient in relation to the calling, holding and conducting of the meeting” and by dint of the power given in Section 85(3) of the Companies Act in the following terms “if for any reason it is impracticable to call a meeting of a company ……………. the Court may either of its own motion ………….... order a meeting of the company to be called, held and conducted in such manner as the Court thinks fit, and where any such order is given the Court may give such ancillary or consequential directions ……................., I hold that the company Court is empowered not only to direct the company to call the AGM/s which have not been called, held and conducted due to interference of this Court or for some other reasons which were beyond the control of the company, but also, if the Court thinks it expedient, it may give, as the ancillary relief,  required directions for calling, holding and conducting the AGM/s fallen due and, in order to implement the Court’s direction for holding the AGM/s, the Company Court may consider to pass some other consequential order/s and direction/s, such as (i) appointment of the auditor for the company as per the choice of the Court, for, the company and the Court-appointed auditor often involves in dispute regarding amount of the auditor’s fees and, ultimately, they again approach this Court for its resolution (iii) schedule of time and date of the AGM, (iv) selection of the venue of the AGM and, if necessary, some other appropriate ancillary orders/directions. Since it is the requirement of laws that an audited balance sheet, profit & loss account and summary of the property, assets, shares, capital and liabilities must be presented in the AGM, if this Court simply passes direction upon the company to call and hold the AGM/s fallen due, there may be a delay again for not passing appropriate orders on the aforesaid connected issues. The Legislature has, thus, not only empowered this Court to suo motu call, hold and conduct the meeting of the company, but it has also vested this Court with the power of granting any consequential and ancillary direction upon the company or other concerns to do the needful for the purpose of calling, holding and conducting the company’s meeting fruitfully without putting the company into further hassle of approaching this Court separately for ancillary issues connected with the calling, holding and conducting the company’s meeting. In this case, the AGMs of the calendar years 2016 (24th AGM) and 2017 (25th AGM) have not been held due to the misconception of law, but the AGM of the company for the calendar year 2018 (26th AGM) has fallen due for the reason of pendency of the cases and, therefore, I am inclined to extend the time for calling & holding the AGMs for the calendar years 2017 & 2018 (25th & 26th AGMs) of the company in addition to extending the time for calling/directing to call the AGM of the calendar year 2016 (24th AGM).

27.         Let me now take up the issue whether the company and its directors & officers have incurred penalty under Section 82 of the Companies Act. From the circumstances stated in the substantive petition and supplementary affidavits and, further, from a minute perusal of the papers & documents annexed to the substantive petition as well as to the supplementary affidavits, it transpires that there has been a delay for holding the AGM of the calendar year 2016, for, the Gregorian calendar year of 2016 ended on 31st December 2016, but the company’s AGM was scheduled to be held on 15.06.2017. It was held in the case of Gibson v Barton, (1875) L.R. 10 Q.B. 329 and in the case of Park v Lawton (1911) L.R 1 K.B. 588 that “year” means calendar year starting from 1st January and ending on 31st December. Thus, I find that the Chairman, the Managing Director & all other directors, Chief Financial officer and the Secretary of the company have incurred penalty for their failure to call and hold the AGM of the calendar year 2016 within 31st 2016. However, in the light of my findings that the delay for the subsequent calendar years, namely, 2017 & 2018 is occurred not for the company’s willful laches or negligence or default, I hold that the company or its directors have not incurred any penalty for their failure to hold the AGM for the calendar years 2017 & 2018.

28.         After resolutions of the issue that the Chairman, MD, Directors, CFO and the Secretary of the company have incurred penalty, now I need to see whether this Court is vested with the power to deal with the issue of imposing the penalty and, in an appropriate case, to exonerate the delinquent/s from the penalty incurred. From a concurrent reading of the provisions of sub-Sections (1) & (2) of Section 396 of the Companies Act, it is my view that if no proceeding has been drawn against the company/its director/officer for failure to comply with any provisions of the Companies Act, the delinquent company/its director/officer may file an application for exoneration from the fine/penalty and, in the event that any proceeding for failure to comply with the provisions of the Companies Act is pending before the competent Court, the Company Court would not deal with the issue of fine/penalty and simply deal with the issues of civil nature, such as condonation of  delay towards enabling the company to do the needful in compliance with the various provisions of Companies Act. The above view was taken by this Court in the case of Creative Engineers Ltd V RJSC 2018(2) 13 ALR. Following holding that this Court is well empowered to deal with an application under Section 396 of the Companies Act, it is now incumbent upon me to see whether the delinquents should be penalized or they deserve mercy of this Court. At the very outset, I would say that it was their duty to approach this Court long ago to seek permission for holding the AGMs of the calendar years 2016 & 2017. However, in view of the findings made hereinbefore that the company’s AGM for the year 2016 has not been held due to misconception of law and due to pendency of the two Writ Petitions before the Division Benches of this Court wherein the company was restrained to hold its AGM resulting in becoming impracticable for the company to call, hold and conduct AGMs of the company as per the provisions of the Act as well as the Articles of Association of the company, without the interference of this Court, I see it justified to opine that the company or its responsible directors/officers should not be penalized for delay in holding the AGMs.

29.         In the result, the petition is allowed. The entire period of delay that has occurred in holding the company’s AGMs for the calendar year 2016, 2017 & 2018 (24th, 25th & 26th Annual General Meeting of the company) is hereby condoned and the time for holding the aforesaid AGMs is extended to 31st July, 2019. The Managing Director of the company or any other person of the company who are apparently liable to pay fine of Taka 250 (two hundred fifty) for each day’s delay, as provided in Section 82 of the Companies Act, are hereby exonerated from paying the penalty and the petitioner’s prayer under Section 396 of the Companies Act for relieving them of the penalty is, accordingly, allowed.

30.         The Managing Director on behalf of the company is hereby entrusted with the power to call, hold and conduct the AGM for the calendar year 2016 of the company to take appropriate resolutions, except declaring dividends till disposal of the aforesaid Writ Petitions, upon scheduling the date, time and place of the aforesaid Annual General Meeting within 8 (eight) weeks from the date of drawing up of this Judgment and Order and, thereafter, s/he shall call and hold the AGMs for the calendar years 2017 & 2018 with a gap of more or less 2 (two) months of the previous AGM so that the company can prepare the balance sheet, profit & loss accounts and also make the annual list of the company’s members and summary of the property, assets, shares, capital and liabilities and, then, file the same with the RJSC as per Section 36 of the Companies Act. In any event, all these AGMs shall be called and held within 31st July 2019 upon giving proper notice and preparing the audited balance sheet, members’ list, profit & loss account, summary of the property & assets and of the capital, shares & liabilities. However, the company shall be competent to declare dividend in these AGMs, if the Rules issued in Writ Petition No. 11650 of 2017 and Writ Petition No. 12827 of 2017 are discharged/disposed of before the date of holding the AGM/s of the company.

31.         The Registrar of Joint Stock Companies and Firms is directed to accept all Fillings and Returns accordingly, in connection with the aforesaid AGMs.

32.         This Order will be effective subject to compliance with the direction given hereinafter. The petitioner-company will donate Taka 5,00,000/- (Five Lac) only through Pay Order to Fulchari Haji Sattar Trust, Upzailla Road, Kalirbazar, Fulchari, Gaibandha by depositing in the following Bank Account; Fulchari Haji Sattar Trust, Bank Account No. 1021012799, Janata Bank, Kalirbazar Branch (Code No. 0959), Fulchari, Gaibandha (Contact number of Branch-01747-652927, 0542256109) e-mail- jb0959@janatabank-bd.com. On furnishing receipt of payment, the Order may be drawn up, if so prayed for.

         Ed.