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Rao Saheb Manilal Gangaram Sindore and anr. Vs. Western India theatres Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtMumbai High Court
Decided On
Case NumberSuit No. 86 of 1959
Judge
Reported inAIR1963Bom40; (1962)64BOMLR532
ActsCompanies Act, 1956 - Sections 155; Code of Civil Procedure (CPC), 1908 - Order 7, Rules 10 and 11 - Order 49, Rule 3
AppellantRao Saheb Manilal Gangaram Sindore and anr.
RespondentWestern India theatres Ltd. and ors.
Appellant AdvocateS.V. Gupta and ;Rege, Advs.
Respondent AdvocateZaiwalla and ;J.I. Mehta, Advs.
Excerpt:
.....no stretch of imagination be said to be a summary proceeding, this relevant provisions of the civil procedure code and the questions both of territorial as well as pecuniary jurisdiction of the court in which the suit is filed have got to be considered. this is precisely the difference between the 'high court' so far as the proceeding under section 155 of the companies act, 1956, is concerned an the 'high court' which would entertain the suit in which the relief contemplated by that section is asked for. 7. it is certainly true that the notice of the ,1stdefendant company's intention to raise the new issuewas given by the aforesaid letter, but it seems to me thaton the statements made in the written statements bothof the 1st defendant company as well as defendants 2and 3 the..........at r.s. 1,300/- and obviously, therefore, this court will have no. jurisdiction to entertain this suit.2. the suit is filed by the plaintiffs for rectification of the register of members maintained by the 1st defendant company, alleging that the latter had wrongfully refused to register in their names certain shares in respect of which they had submitted to the company a duly completed transfer form. it is not necessary for me to set out the various allegations that have been made by the plaintiffs in the plaint in support of their contention that they are entitled to call upon the 1st defendant company to rectify the register of members and register the transfer to the shares in question in their names. it is enough for the present to indicate that the value of the shares which are the.....
Judgment:

1. I am afraid this suit will have to be dismissed on the preliminary issue that is raised on behalf of the 1st defendant company in consequence of a notice given by it to the plaintiffs and the issue is as to whether this Court has Jurisdiction to entertain this suit, The reason why this is raised is that the subject-matter of the suit has been valued by the plaintiffs at R.s. 1,300/- and obviously, therefore, this Court will have no. jurisdiction to entertain this suit.

2. The suit is filed by the plaintiffs for rectification of the register of members maintained by the 1st defendant company, alleging that the latter had wrongfully refused to register in their names certain shares in respect of which they had submitted to the company a duly completed transfer form. It is not necessary for me to set out the various allegations that have been made by the plaintiffs in the plaint in support of their contention that they are entitled to call upon the 1st defendant company to rectify the register of members and register the transfer to the shares in question in their names. It is enough for the present to indicate that the value of the shares which are the subject-matter of the suit is fixed at R.s. 1,200/-and the relief claimed In prayer (b) of the plaint, which Is only an interim relief, is valued at R.s. 1007- and on this valuation of the aggregate amount of R.s. 1,300/- the plaintiffs claim that this Court in exercise of its Ordinary Original Civil Jurisdiction is competent to entertain and. decide the suit. In course of the plaint it is undoubtedly-stated that the relief claimed in the suit is one under Section 155 of the 'Companies Act, 1956, which deals with-rectification of register of members.

3. It is contended on behalf of the 1st defendant company that the remedy under Section 155 of the Companies Act, 1956, is by an application, that the rules made by. the Supreme Court in exercise of the powers given to it by the Companies Act provide for a petition for the purpose of getting a relief under Section 155 of the Companies Act, that the present proceeding not being in the natures-of a petition, does not fall under Section 155 of the companies Act and, that, therefore, the relevant provisions to the Code of Civil Procedure will apply for the purpose or determining as to whether the present suit is cognizable By this Court or not. Mr. Gupta, the learned counsel for the-plaintiffs, on the other hand, urged that the word 'Court' as used in Section 155 of the Companies Act, 1956, was. defined in the Companies Act itself to mean the High Court for the purpose of the relief contemplated by that section-and that, therefore, it was immaterial whether the proceeding adopted for the purpose of that relief was either by way of a petition or a suit. Mr. Gupta further urged that in any event, I should treat the suit as a petition and proceed to decide the respective contentions of the parties.

4. Now, it is clear to my mind that even for the! relief contemplated by Section 155 of the Companies Act. 1956, a suit would be the primary remedy under the general aggrieved law. The relief which is contemplated by that section is one which would be available at common law as we, because, after all, relief at common law would be one which would arise by assertion of a right on the part of one party and denial thereof by the other. In this case, the Plaintiffs claimed that by reason of the transfer of the shares belonging to defendants 2 and 3 they were entitled to have their names registered in the register of members maintained by the 1st defendant company. The 1st defendant company refused to recognise this right on several grounds mentioned in its written statement. Here, therefore, was a case in which the plaintiffs asserted 3 right which the 1st defendant company declined to accept. This would naturally give rise to a remedy at law for . the purpose of the necessary relief, and the primary remedy at law would be by an action. The provisions made in Section 155 of the Companies Act, 1956, for a procedure by way of an application is only a provision for a summary procedure. The object of this provision is not to whittle down or abrogate the provision by way of a suit for getting the relief contemplated by that section. By reason of the pro-' vision made in Section 155 it is open to the aggrieved party to avail of the procedure laid down by that section and proceed by way of' an application or by such proceeding as may be laid down by the Supreme Court in the rules made by it. Generally speaking, this procedure is resorted to by persons aggrieved by the refusal of the directors of company to rectify the register and enter the name of the transferee in place of the name of the transferor of shares in the register of members, but it is recognised by a long line of judicial decisions that the court is not bound to give the relief under that section? in that proceeding if it finds that complicated questions of facts and law are involved. It has got the power to direct the party concerned to a Civil Court and to file a proper action-for the purpose of securing the relief which he seeks in-, the summary proceeding. This direction is given by the Court in exercise of its discretion because it is the Civil Court which has got the jurisdiction to decide all such matters in the first instance and it is only by way 01 a summary remedy that a party can proceed by an application or a petition under Section 155 of the Companies Act, 1956. A reference may be made in this' connection to Momdeen Pichai v. Tinnevelly Mills Co. : AIR1928Mad571 and; People's Insurance Company Ltd. v. C.R.E. Wood and Co. ltd. . Mr. Gupta himself quite frankly and fairly did not dispute the proposition that the procedure laid down in Section 155 of the Companies Act, 1956 was only a summary procedure and that the relief provided for in that section was available also at common law In a common law action. His only contention, however, was that the word 'Court' as defined in Companies Act meant only the High Court and that, therefore, although instead of a petition a suit had been filed in this particular case, It should not make any difference so far as the jurisdiction of this Court was concerned. I am afraid this contention-cannot be accepted. As a summary proceeding by way of an application or a petition under Section 155 of the Com-. ponies Act, 1956, this Court can w I be approached for the purpose of the necessary relief, but for the purpose of getting the same relief in a regular suit which can by no stretch of imagination be said to be a summary proceeding, this relevant provisions of the Civil Procedure Code and the questions both of territorial as well as pecuniary jurisdiction of the Court in which the suit is filed have got to be considered. If the subject-matter of the suit was valued in this case at more than R.s. 25,000/-, this Court would certainly have jurisdiction to entertain it, but it would not entertain it as a Court exercising its jurisdiction under the Companies Act, but as a Court in exercise of its Ordinary Original Civil Jurisdiction. This is precisely the difference between the 'High Court' so far as the proceeding under Section 155 of the Companies Act, 1956, is concerned an the 'High Court' which would entertain the suit in which the relief contemplated by that section is asked for. in my opinion, therefore, this suit valued as it is at only R.s. 1,3007- does not fall within the scope of the pecuniary Jurisdiction of this Court. Such a suit is exclusively tribal by the City Civil Court and since the provisions container in rules 10 and 11 of Order VII of the Civil procedure Code do not apply to the High Court by virtue of the provisions of rule 3 of Order 49 of that Code, the only alternative that is left to me is to dismiss the suit.

5. I cannot also accept Mr. Gupte's contention that I should treat this suit as a petition under Section 155 of the Companies Act, 1956. There is a fundamental objection to my doing it and that is, as I have already observed above, that the petition would be entertained by the High Court exercising its jurisdiction under the Companies Act, whereas the suit would be entertained by the High Court In exercise of its Ordinary Original Civil Jurisdiction. The two jurisdictions beng entirely different and inasmuch as, while dealing with this suit, I am not exercising any jurisdiction conferred on this High Court by the Companies Act, I am afraid, I cannot treat the present suit as a petition under Section 155 of the Companies Act 1956. In the result, the suit is dismissed.

(6) As regards costs, Mr. Gupte contended that the 1st defendant company gave notice of its intention to raise the present issue on which I have decided the suit only by Its letter dated 19th January 1962 despite the fact fat the written statement on its behalf was filed as far back as on 13th May 1959. He urged that had this notice been given to them earlier probably they might have reconsidered the position and taken effective steps for the purpose of withdrawing the suit. Accordingly, he submitted that the 1st defendant company was not entitled to any costs at all and that defendants 2 and 3 were not entitled thereto in any event. Mr. Zaiwalla on behalf of the 1st defendant company argued that it was as a matter of clarification that the letter dated 19th January 1962 was written by the Company's attorneys to the plaintiffs. According to film, the issue on which this suit is now' decided was already covered by the averments contained in the written statement and, therefore, he was entitled to the costs of MB suit. On behalf of the 2nd and 3rd defendants, Mr. Mehta also contended that his clients' position was not different from that of the 1st defendant company and that he should also be equally entitled to the costs of the suit.

7. It is certainly true that the notice of the ,1stdefendant company's intention to raise the new issuewas given by the aforesaid letter, but it seems to me thaton the statements made in the written statements Bothof the 1st defendant company as well as defendants 2and 3 the subject-matter of this issue could well havebeen covered, because one of the questions that wasraised in both the written statements was whether thesuit was maintainable which would include the question the jurisdiction of this Court as well. The plaintiffs wereaware of this contention of the defendants for about threeyears and they do not appear to have taken any stepsfor the purpose of seeing whether the suit was realtymaintainable. They do not appear to have applied for anyamendment of the plaint by correcting the value of thesubject-matter of the suit nor do they seem to have realisedthat this Court in exercise of its Ordinary Original CivilJurisdiction will not be competent to entertain a regularsuit with a valuation of less than R.s. 25.000/-. Theysimply appear to have Slurred over this contention of thedefendants and taken a chance that at the hearing ofthe suit they would succeed in persuading the Court toproceed with the suit as it was. In the circumstances, Ido not think why any departure should be made from thegeneral rule that costs should follow the event. The plaintiffs should, therefore, pay the costs both of the ,1stdefendant company as also of defendants 2 and 3 Indifferent sets.

8.Suit dismissed.


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