Sunglory Apparels Ltd. & others Vs. Bangladesh Commerce Bank Ltd. & others, 3 LNJ (2014) 130

Case No: Company Matter No. 15 of 2011

Judge: Md. Rezaul Hasan,

Court: High Court Division,,

Advocate: Mahbubey Alam,Mr. Rokanuddin Mahmud,Dr. M. Zahir,,

Citation: 3 LNJ (2014) 130

Case Year: 2014

Appellant: Sunglory Apparels Ltd. & others

Respondent: Bangladesh Commerce Bank Ltd. & others

Subject: Company Matter, Legitimate Expectation ,

Delivery Date: 2013-05-13


HIGH COURT DIVISION
(STATUTORY ORIGINAL JURISDICTION)
 
Md. Rezaul Hasan, J.

Judgment on
13th May, 2013
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Sunglory Apparels Ltd. and others
. . .Petitioner
Versus
Bangladesh Commerce Bank Limited and others.
. . . Respondents
 

Doctrine of Legitimate Expectation
The petitioners have no right to the shares allotted to the government. In Company matter, the legitimate expectation is not applicable.
Besides, the petitioners have no pre-emptive right in respect of shares allotted to the government (respondent No. 4), nor they can assert that they have any legitimate expectation to get those shares allotted to the government, because such a case would not only be absurd, but the doctrine of legitimate expectation is not applicable in company matter. . . . (11)

Companies Act 1994 (XVII of 1994)
Section 155(1)(c)(2)
Directors have complete control over the shares and thus they are the competent authority to allot the shares.
The Board of Directors is very much competent to issue the right shares to respondent No. 4, at least in the sense that they are competent to make allotment of these shares as empowered by clause (c) to subsection (1) and by subsection (2) of section 155 of the Act. . . . (12)
A plain reading of clause-(c) to sub-section (1) and sub- section (2) of section 155 clearly shows that the shares of a company remain under the control and disposal of the directors and the Board of Directors were competent to issue the right shares in favour of the respondent No.4 in the manner it has been allotted. . . . (14)

Companies Act 1994 (XVIII of 1994)
Section 233
The petitioners claimed relief in the form of perpetual injunction only to restrain allotment of right shares to the respondent No. 4, which does not fall within the ambit of section 233 in the fact of this case. . . . (16)
 
Mr. Rokanuddin Mahmud, Advocate  
Mr. Sharif Bhuiyan, Advocate and
Mr. Mohammad Mutahar Hossain, Advocate with
Mr. Mohammad Muddasir Hossain, Advocate
. . . For the petitioners.

Dr. M. Zahir, Senior Advocate with
Mr. Shamim Khaled Ahmed, Advocate and
Mr. Muhammad Shafiqur Rahman, Advocate with
Ms. Hosne Ara Begum, Advocate
. . . For the respondent Nos.1-3.

Mr. Mahbubey Alam, Attorney General with
Mr. A. K. M. Zahirul Huq, D.A.G and
Mr. Md.Matiur Rahman Howlader, A.A.G
…..For respondent No.4.

Company Matter No. 15 of 2011
 
JUDGMENT
Md. Rezaul Hasan, J.
 

This is an application filed under section 233 of the Companies Act, 1994 (the Act).
 
It has been stated, amongst others, that the petitioners are private limited companies incorporated under the Companies Act, 1994, having their registered offices at the addresses given in the cause title. The petitioners are shareholders of respondent No.1-Bangladesh Commerce Bank Limited (BCBL), currently holding an aggregate of 1,247,295 ordinary shares in “Ga” class of shareholders as on 28.08.2010, which is not less than one-tenth of the issued shares of BCBL, which are fully paid up; that the respondent No.1 BCBL, is a public company limited by shares and has been incorporated under the Companies Act, 1994 pursuant to Section 3 of the Bangladesh Commerce Bank Limited (Reconstruction) Act, 1997; the respondent No.2 and 3 are the Chairman and the Managing Director, respectively, of the respondent No.1; the respondent No.4 is Government of Bangladesh, represented by the Secretary, Ministry of Finance, respondent No.5 is the Registrar of Joint Stock Companies and Firms, and the proforma-respondent No.6 is the Securities and Exchange Commission. (SEC). The petitioners do not seek any relief against the pro-forma respondent No.6, which has been impleaded so that it is aware of any order that may be passed by the Hon’ble Court. The addresses of the respondents are as given in the cause title; that the respondent No.1, BCBL, is a statutory bank incorporated on 01.06.1998 under Section 3 of the Bangladesh Commerce Bank Limited (Reconstruction) Act, 1997 (“the 1997 Act”). Pursuant to Section 5(2) of the 1997 Act, the shareholding structure of BCBL is divided into 3 classes, namely:
     “Ka” Class: Promoters of the bank, i.e. Government of Bangladesh
     “Kha” Class:Scheduled banks and financial institutions
    “Ga” Class: Amanatkari; that pursuant to Section 7(1) of 1997 Act, the Board of Directors of BCBL is composed of 11 (eleven) directors, with 4 directors from “Ka” Class shareholders, 2 directors from “Kha” Class shareholders, 4 directors from “Ga” Class shareholders and 1 director nominated by the Government of Bangladesh; that pursuant to Section 5(1) of 1997 Act, the authorized capital and paid up capital of BCBL at the time of incorporation was fixed at Tk.200.00 crore and Tk.92.00 crore respectively. Subsequently the authorized capital of BCBL was increased to Tk.1000.00 crore. Thereafter, in order or enhance the paid-up capital to the level specified in Basel-I and Basel-II, the Bangladesh Bank by its BRPD Circular No.11 dated 14.08.2008 directed the scheduled banks which include BCBL to raise its paid up capital to Tk.200 crore by December, 2010 and thereafter to Tk.400 crore within August, 2011. Accordingly, the Board of Directors in its 167th and 177th meeting (held on 15.10.2009 and 20.05.2010 respectively) recommended raising the paid-up capital of BCBL by Tk. 115,00,00,000/- through issuance of Right shares comprising 1,15,00,000 ordinary shares of Tk.100/- each in the ratio of 1.25:1(i.e 1.25 right share for each ordinary share). The record date for entitlement of the right shares was fixed on 02.12.2010. The shareholders in the 12th Annual General Meeting (AGM) held on 28.08.2010 also approved the said recommendation. Bangladesh Bank by its letter dated 13.06.2010 accorded no objection in respect of the recommendation relating to issuance of Right Shares. The information stated in this paragraph has been set out in the Offer Letter dated 6.12.2010; that in view of the above mentioned recommendations, the respondent No.3 filed an application with the Securities and Exchange Commission (SEC) on 10.10.2010 under Rule 3(1) of the Securities and Exchange Commission (Issue of Capital) Rules, 2001 (“the Rules”) seeking consent of SEC for raising capital of BCBL through issuance of Right Shares. Upon considering the application, the SEC issued a Letter of Intent dated 08.11.2010 and thereafter, upon receipt of the necessary consent fee, SEC accorded consent for the raising of capital of BCBL through issuance of Right Shares by its letter dated 10.11.2010 (Ref No. SEC/CI/CPLC-262/10-477); that with regard to issuance of Right Shares, a “Notice of Issuance of Right Shares” was published by the BCBL in the Daily Ittefaq and the Daily Financial Express on 26.11.2010 (“the Notice”) which stated, inter alia, as follows:
      Book Closure Date: 03.12.2010 to 05.12.21010
      Subscription Date: 14.12.2010 to 20.12.21010
      Banker to the Issue:  All branches of BCBL; that on 06.12.2010, the petitioners received separate “Offer Letter for Right Share Issue” (“the Offer letter”) from BCBL in which the petitioners were offered proportionate number of ordinary shares of Tk.100/- each against ordinary shares respectively held by them as on 02.12.2010. The Offer Letter stated, inter alia, that a shareholder may accept and apply for the shares hereby offered, wholly or in part by filling in the Application-‘Form A’ and submitting the same along with the application money to the Bankers to the Issue on or before December 20,2010.”; that upon receipt of the Offer Letter, the present petitioners separately and duly accepted the offer and subscribed to the Right Shares by filling in the Application- ‘Form A’ and submitting the same along with the application money to the Bankers to the Issue before December 20, 2010; that it may be noted that an offer letter with similar terms and conditions was also issued to the Government of Bangladesh, a shareholder in “Ka” Class. However, the Government of Bangladesh (respondent No. 4), failed to accept the offer as per the terms and conditions of the Offer Letter by failing to make payment of the application money to the Bankers to the Issue on or before December 20, 2010. The respondent No. 4 instead of making an application along with necessary payment as required by the Offer Letter, merely wrote a letter to BCBL stating that it would make payment at a later date; that on 27.12.2010, the Respondent No.4 issued a Government Order (GO) regarding subscribing to the Right Shares of the value of Tk. 37.50 crore and thereafter, made payment of Tk. 37.50 crore in respect  of Right Shares to BCBL on 28.12.2010. It is stated that the payment of the aforesaid amount by the Government was not in compliance with the terms and conditions of the Offer Letter inasmuch as the payment has been made after the expiry of the time for acceptance of the offer, i.e 20.12.2010; that since the respondent No. 4 failed to make payment in respect of the right shares within business hours of 20.12.2010 as required by the Offer Letter and the Notice, the offer is to be deemed to have been declined by the concerned shareholders. Consequently, the right shares of the value of Tk. 37.50 crore, which was initially offered to the shareholders in “Ka” class of shareholders, would be considered to have been unsubscribed and as per the recommendation of the Board, the total unsubscribed shares would be allocated to the other existing shareholders on pro-rate basis. Accordingly, on 11.01.2011, the petitioner No. 1 through its lawyers served a legal notice upon the respondent Nos. 1 and 2 instructing it to refrain from allotting any Right Share in favour of the shareholders in the “Ka” Class of shareholders; that upon receipt of the above legal notice, instead of complying with the requests made in the notice, the respondent No. 3 and two others issued a memorandum, being Memo No. 20/2011 dated 20.01.2011 purportedly stating that measures regarding the purported issuance of Right Shares in favour of shareholders in “ka” Class, had been completed by 31.12.2010; that it is submitted that the purported issuance of right shares by the respondent No.1 in favour of the shareholders in “Ka” class is unjust, illegal and prejudicial to the interest of the petitioners inasmuch as the respondent No.1 purportedly issued the right shares in favour of the shareholders in “Ka” class despite the fact that the said shareholders failed to accept the offer as per the terms of the Offer Letter and the Notice, i.e. by making full payment within 20.12.2010; that  the purported issuance of Right Shares in favour of the shareholders in “Ka” class is unjust, discrimi-natory and prejudicial to the interest of the petitioners inasmuch as the petitioners has been discriminated against as a result of the respondents’ purported decision to allow the shareholders in “La” class to make payment long after the expiry of the time stipulated in the Notice and the Offer Letter for making payment in respect of the Right Shares, whereas shareholder in “Kha” and “Ga” class had made payment within the stipulated time. Hence this application.
 
The respondent Nos. 1 and 3 to appeared in this matter and filed joint affidavit-in-opposition denying all materials facts as alleged in the petition and further stating  at the outset  that the petitioners have not made out a case under section 233 of the Companies Act; the petitioners have not shown that the affairs of the company are being Managed or conducted or the powers of the directors are being exercised in a manner prejudicial to one or more of its members or debenture holders or in disregard of their interest; nor has a case been made out that the company is acting or is likely to act in a manner which discriminated or it likely to discriminate the interest of any member or debenture holder; nor that a resolution of its members, debenture holders or any class of them has been passed or is likely to be passed which discriminates or is likely to discriminate the interests of one or more of its members; that it is submitted that in an application under section 233 of the Companies Act the Court is empowered as it deems fit to make such order including a direction to cancel or modify any resolution or to regulate the affairs of the company in future in such manner as is specified  therein or to amend any provision of the memorandum or articles of the company; no such prayer for direction has been made; the prayer in the petition is “to cancel the purported issuance, if any, of rights shares of the value of Tk. 37.50 crore in favour of Respondent no.4”; this is a typical prayer to be made under section 43 and not under section 233 of the Companies Act; that the second part of the prayer, namely to cancel the allotment in favour of Respondent No. 4, is a matter of share register rectification, for which a remedy lies either in the civil court or in the company court under section 43 of the Companies Act; section 233 is not a proper remedy for rectification of share register which there is a specific remedy available; the  parties should avail of that specific remedy and cannot resort to the section for protection of minority shareholders for share register rectification; it has not been shown that the affairs of the company are being run in a manner prejudicial to the interest of the company or the other requirements for application of section 233 have been met; that petition has been filed and moved on 3rd February 2011, much after the issuance of all shares to the shareholders entitled to rights issue, including the petitioners; the fact of issuance of rights shares is a past fact and nothing further needs be done  for issuance of rights shares, and hence the first part of the prayer in the petition is in fructuous inasmuch as the share register of the company now reflects the existing shareholders owning the newly issued rights shares; that therefore is  submitted that the company may offer shares to any person whether or not they have been offered first to the existing shareholders u/s 155(1)(a). 
 
The learned Advocate Mr. Rokanuddin Mahmud, appearing along with the learned Advocates Mr.Sharif Bhuiyan, Mr. Mohammad Mutahar Hossain and Mr.Mohammad Muddasir Hossain,  for the petitioners, having placed the petition alongwith the supplementary affidavit and the documents annexed therewith mainly submits that as it would be evident from the offer letter dated 6.12.2010 (Annexure-D) issued for right shares  and it as has been further specified in a notice dated 26.11.2010 (Annexure-C) published in Financial Express and the respondent No. 4 ought to have accepted the offer letter for right shares  along with  payments to be made in cash or by P.O/D.D/cheque for 37.50 corers of shares between 14.12.2010 to 20.12.2010. Next, referring to the minutes of 1892nd meetings of the Board of Directors held on 14.11.2010 (Annexure-E), the learned Advocate submits that the Ministry of Finance, Banking and Finance Division, has accepted the  Offer, by a letter dated 20.12.2010, as against the existing shares of Tk.30 corers held by respondent No.4 and has further informed in that letter that by issuing a government order (GO) the amount due against the right shares (being Tk. 37.50 crores) will be paid through a cheque to be drawn in favour of the BCBL. As such it is clear and admitted position that although the government,  (respondent No.4) has accepted the offer letter on 20.12.2010, it has, however, not made payment as against the right shares, either in cash or by pay order or DD or cheque  on or before 20.12.2010. Thereafter, the respondent No. 4 shall be deemed to have declined to accept the offer for acceptance of the right shares as against the shares held by them in BCBL. He further submits that one of the directors of the Bank though raised objection in allotting the right shares in favour of respondent No.4, the Board of Directors has, however, allotted the shares on 30.12.2010 as is evident from Annexure-2 to the supplem-entary affidavit sworn on 2.5.2013. He continues that, issuance of the right shares  to the respondent No.4 on 13.12.2010 who has failed to deposit the price of right shares on 20.12.2010 alongwith the letter of acceptance is a clear violation of the terms and conditions of the offer Letter as well as provisions of section 155 of the Companies Act. But, by ignoring the terms and conditions and issuing the right shares in favour of the respondent No.4 (Government) on 30.12.2010, the respondent No.1 has treated these petitioners with discrimination and such conduct of the respondents is prejudicial to the interest of the petitioners. He also submits that the respondent No.4, having failed to pay the price of the right shares on 20.12.2010, it should have been resolved by the BCBL Board that the respondent No.4 has declined to accept the offer and the petitioners are entitled to all the right shares issued to the respondent No.4, hence the resolution to allot right shares in favour of respondent No.4 is liable to be cancelled and the said shares are to be allotted amongst the petitioners and other share holders as per provisions of section 155 of the Companies Act.
 
The learned Advocate Dr. M. Zahir, appearing along with the learned Advocates Mr. Shamim Khaled Ahmed, Mr.Muhammad Shafiqur Rahman and Mr.Md.Fazlur Rahman Khan, on the other hand, submits that respondent No.4 is holding shares of ‘Ka’ Class and the respondent No.1 (BCBL) has been reconstituted by respondent No.4 under an scheme to re-organized it under BCBL (Reconstruction) Act, 1997 (BCBL Act). The learned Advocate further submits that unlike an individual or any privately owned concerned,  government has to undergo certain formalities and that usually requires some time in implementing its decision, but government has unequivocally accepted the offer with the commitment made in the letter dated 20.12.2010 and  has paid the price accordingly. It has caused no prejudice to the petitioner or to the BCBL. He further submits that the petitioners have failed to make out any case that their interest, in any way, have been prejudiced because of the allotment of right shares made in favour of the government. He next submits that there is no case that the petitioner have also accepted the offer letter on 20.12.2010 without payment of the price of the right shares and that  the price paid by the government was accepted subsequently and that they have also paid the price subsequently,  like the respondent No. 4, but their payment was refused. As such, the question of discrimination, in this case, is totally misconceived and baseless one. The learned Advocate further submits that if name of the government were unreasonably entered into the Register of Members of the company, then they could have filed application under section 43, not under section 233 of the Act. Besides a mere perusal of the provisions of  section 155 would show that there is nothing in that section to allot unsubscribed shares, if there were any, to the respondent No.4. Unsubscribed shares, if any, would always remain under the control and disposal of the Board of Directors and the allotment made by the Board in favour of the government, who has accepted the offer on 20.12.2010 with a commitment to pay the price after allocation of the fund by the Finance Division, was clearly within the competence of the Board of Directors as per provision of clause-(c) of Sub-section-(1) as well as per provision of Sub-section-(2) of Section 155 of the Companies Act. The petitioners, having received the right shares in proportion to the shares held by them in BCBL, they have no grievance, whatsoever, nor any cause of action to file this application under section 233 of the Act. Besides, the learned lawyer did not forget to add, that the Board of Directors, that has allotted the right shares, admittedly comprises all classes of the shareholders, namely ‘Ka’, ‘Kha’ and ‘Ga’ and the Board has resolved to issue the right shares in favour of respondent No.4 and has received the entire price of the share on 28.12.2010 and allotted the shares on 30.12.2010. Hence this petition, filed long after allotment of the right shares, has been filed with collateral purpose and is a clear abuse of the process of the court. Then referring to the prayer portion in the petition, the learned Advocate for the respondent submits that none of the prayer comes within the  scope of section 233 of the Act. As such, he concludes, that the petition is liable to be dismissed.
 
The learned Attorney General Mr. Mahbubey Alam, alongwith the learned Deputy Attorney General Mr.A.K.M Zahirul Huq and the learned Assistant Attorney General  Mr.Md. Matiur Rahman Howlader, appearing on behalf of the respondent No.4, submits that the government (respondent No.4) has re-organized the Bank in the public interest by enacting the BCBL Act, 1997. The government has accepted the offer within the time limit mentioned in the offer letter dated 20.12.2010, vide letter dated 20.12.2010 issued by the Banking and Finance Division, Ministry of Finance, and it has also assured that the payment, as against allotment of the right shares, shall be made when the Finance Division would release the fund, pursuant to Government Order (GO), by cheque to be drawn in favour of BCBL. This assurance, emanating from the executive organ, exercising the sovereign power of the state like two other organs, is as good as payment made in cash. The government has contributed to the capital of the company by subscribing the right shares in the public interest, unlike an individual share holder/members or any privately owned companies, like the petitioners. He next submits that public interest should not be allowed to be jeopardize by the petitioners who has failed to show any fact of discrimination made in the matter of allotment. It has also been submitted that the government has paid entire money, being Tk. 37.50 crores, on 28.12.2010 and the right shares against the said amount was issued to the government on 30.12.2010, as has been admitted by the petitioner, vide the letter dated 10.1.2011 (Annexure-2) to the supplementary affidavit. This decision to issue the right shares was taken in the Board Meeting in which the representative of all class of directors were present. Besides, the learned Attorney General also submits that, neither section 155 nor section 233 invest the petitioner with any right or otherwise entitle them to compel the Board of Directors to allot the shares to them or to get allotment of unsubscribed shares, if there were any. He next submits that the allotment was made  which is quite  bonafide and serves the public interest and is clearly  within the competence of Board of Directors as per clause-(c) of sub-section (1) of Section 155 and sub-section (2) of section 155 of the Companies Act, 1994. Hence this petition is totally misconceived and is liable to be dismissed with exemplary costs, he concludes.
 
I have heard the learned Advocates appearing for the petitioners and the respon-dents, perused the application filed under section 233, the supplementary affidavit filed by the petitioners sworn on 2.5.2013 and the affidavit-in-opposition alongiwth all annexures.
 
It is admitted by all the parties that pursuant to BRPD circular No.11 dated 14.8.2008 the paid up capital of the company was increased to Tk. 400 crore, by issuing right shares amongst the existing shareholders. It is also the admitted that in the offer letter, it has been stipulated that the offer has to be accepted in between 14.10.2010 to 20.10.2010 and that the acceptance letter shall be accompanied with payment of the price of the shares, to be made in cash  or by PO/DD/cheque within the said period of time. It is also admitted that the Government (respondent No.4) has accepted the right share offer, vide its letter dated 20.12.2010 (Annexure-I to the supplementary affidavit).  That letter reads as follows:-
 
গণপ্রজাতন্ত্রী বাংলাদেশ সরকার
অর্থ মন্ত্রণালয়
ব্যাংক ও আর্থিক প্রতিষ্ঠান বিভাগ
প্রবিধি ও নীতি অধিশাখা
Website: www.mof.gov.bd
নথি নং- ৫৩.০০৯.০৩৪.০০.০০.০০১.২০১০-২৩৯
তারিখঃ ২০-১২-২০১০ খ্রিঃ
প্রেরকঃ    মোঃ রিজওয়ানুল হুদা
 উপ-সচিব।
প্রাপকঃ ব্যবস্থাপনা পরিচালক
            বাংলাদেশ কমার্স ব্যংক লিমিটেড
            ঢাকা।

বিষয়ঃ- বাংলাদেশ কমার্স ব্যাংক লিঃ (বিসিবিএল)- এর মূলধন পুরণের লক্ষ্যে সরকার কর্তৃক রাইট শেয়ার গ্রহন।

সূত্রঃ- বিসিবিএল এর পত্র নং-বিসিবিএল/প্রকা /এমডি/ ২০১০/ ৯৪১০ তারিখ ১৫-১১-২০১০ খ্রিঃ

মহোদয়,
উপর্যুক্ত বিষয়ের সূত্রোক্ত পত্রের প্রেক্ষিতে বিসিবিএল-এ সরকারের ধারণকৃত ৩০ কোটি টাকার শেয়ারের বিপরীতে ১ঃ১.২৫ অনুপাতে ৩৭.৫০ কোটি টাকার রাইট শেয়ার গ্রহণের জন্য আবেদন পত্রের ফরম (Application Form-A) পূরণ করে এ সংগে নির্দেশক্রমে প্রেরণ করছি।
২.         উল্লেখ্য যে, প্রস্তাবিত রাইট শেয়ারের ৩৭.৫০ কোটি টাকার অর্থ বরাদ্দকরণের জন্য অর্থ বিভাগ-কে অনুরোধ করা হয়েছে। অর্থ বিভাগ হতে বরাদ্দ পাবার পরপরই বিসিবিএল বরাবরে সরকারী আদেশ জারী করা হবে।

আপনার বিশ্বস্ত,
সংযুক্তঃ বর্ণানামতে।
(মোঃ রিজওয়ানুল হুদা)
উপ-সচিব
ফোনঃ ৭১৬১৫৫৮
E-mail: rizwanh@finance.gov.bd
 
As such, I find the respondent No.4 has accepted the offer and gave a clear assurance to pay the amount against the right shares, once the money is allocated by the Finance Division of the Ministry of Finance. This commitment from an executive organ of the government, which exercises the sovereign power of the state like two other organs of the government, in my considered view, was a sovereign assurance and shall be treated as good as cash payment. Besides, unlike and individual or a privately owned concern like the petitioners, the respondent No.4 (Government) has to comply with certain formalities that may require some times in the process of  releasing money to pay the price of the right shares to be allotted to the government. So, the mere fact of  not enclosing the pay order/DD/cheque along with the acceptance letter dated 20.12.2012 does not disqualify the respondent No.4 from getting allotment of the shares as against the existing shares held by it in BCBL. Moreso, the government is holding shares in BCBL in the public interest, reorganized by it under an scheme in the form of an Act of Parliament i.c. BCBL (Reconstruction) Act, 1997.
 
On the other hand, there is no case of the petitioner that they have accepted the offer for right shares on 20.12.2010 and had failed to enclose DD/PO/Cheque, like the case of respondent No.4, and that discrimination has been made by the respondent Bank in accepting the application of the government and rejecting the applications of the petitioners in a similar situation. So, the question of discrimination does not arise. Rather, in this case, the petitioners have received entire right shares against the shares held by them in BCBL.
 
Besides, the petitioners have no pre-emptive right in respect of shares allotted to the government (respondent No.4), nor they can assert that they have any legitimate expectation to get those shares allotted to the government, because such a case would not only be absurd, but the doctrine of legitimate expectation is not applicable in company matter.
 
I am also of the opinion, that the BCBL has received the entire price of right shares on 28.12.2010, being Tk. 37.50 crores, the Board of Directors is very much competent to issue the right shares to respondent No. 4, at least in the sense that they are competent to make allotment of these shares as empowered by clause (c) to subsection (1) and by subsection (2) of section 155 of the Act.
 
For considering the provision of Section 155 of the Companies Act, it is apt of quote here section 155, that reads as follows:
 
“155. Further issue of capital-(1) Where the directors decided to increase the subscribed capital of the company by issue of further shares within the limit of the authorized capital-
(a) such further shares shall be offered to the members in proportion, as nearly as circumstances admit, to the capital paid up on the existing share held by such member, irrespective of class, at the date of the offer;
(b) such offer shall be made by notice specifying the number of shares offered and specifying the time limit, not being less than fifteen days from the date of the offer, within which the offer if not accepted will be deemed to have been declined;
(C) after the expiry of the time specified in the notice aforesaid, or on receipt of earlier intimation from the members to whom such notice is given that he declines to accept the shares offered, the directors may dispose of the same in such manner as they may think most beneficial to the company.
(2) Notwithstanding anything contained in sub-section (1), the further shares aforesaid may be offered to any person whether or not those persons  referred to in clause (a) of that sub-section in manner whatsoever.” (underlining is mine)
 
A plain reading of clause-(c) to sub-section (1) and sub- section (2) of section 155 clearly shows that the shares of a company remain under the control and disposal of the directors and the Board of Directors were competent to issue the right shares in favour of the respondent No.4 in the manner it has been allotted. On the facts of this case, it cannot be concluded that the affairs of the company were conducted or that the powers of the directors have been exercised in a manner prejudicial to the interest of the petitioners, the petitioners having no right under Article of Association of BCBL or section 155 of the Act to claim that the Board of Directors ought not to have allotted the right shares to the respondent No.4.
 
The petitioners, I am of the view, have failed to make out any case of discrimination or any case that they have any statutory right to get the shares allotted in their favour, even if the government had rnunciated to accept these shares. More over, when the government has paid the entire price, being Tk. 37.50 crores, on 28.12.2012, for the right shares allotted in its favour and right shares have already been allotted in its favour on 30.12.2010, filing of this application under section 233, on 3.2.2011, is apparently not bonafide.
 
I have also considered the prayer made in this petition. In the prayer portion. The petitioners claimed relief in the form of perpetual injunction only to restrain allotment of right shares to the respondent No.4, which does not fall within the ambit of section 233 in the fact of this case, as has been rightly pointed out on behalf of the respondents.
 
Having considered the entire case in its totality, I hold that the interest of the petitioners or of the bank have not, in any way, been prejudiced. The petitioners were not treated discriminatorily, nor the Boards decision to allot the right shares to the respondent No.4 amounts to mismanagement or oppression on minority, in any sense whatsoever.
 
I consider this petition as totally miscon-ceived and that it has no merit.

In the result the petition is dismissed.
 
The parties are directed to bear their respective costs.    

Ed.