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TMI Blog2005 (8) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... in exercise of powers in the alleged capacity as directors of defendant No. 1 is illegal, null and void and not binding. ( d )That this hon ble court be pleased to declare that any resolutions allegedly passed in any purported meeting of shareholders or of Board of Directors of defendant No. 1 allegedly held by the Kapoor family or any of them is illegal, null and void and of no consequence, whatsoever. ( e )That this hon ble court be pleased to issue a permanent order and injunction thereby restraining defendant Nos.3 and 4 their agents, servants and/or any person acting under or their behalf from acting as director of defendant No. 1. ( f )That this hon ble court be pleased to issue a permanent order and injunction restraining defendant Nos. 1 to 4, their officers, servants, agents and/or any person acting under or on their behalf from in any manner acting in pursuance of any alleged resolutions allegedly passed in any purported meeting of Board of Directors allegedly held by the defendant Nos. 2 to 4 or any of them. ( g )That this hon ble court be pleased to declare that plaintiff No. 1 has validly transferred 49 shares of defendant No. 1 and plaintiff No. 2 has valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t its refusal. He pointed out that under section 111(4)( a )/( b ), if a member s name is entered in the register of companies or omitted therefrom, without sufficient cause, the aggrieved person may approach the CLB for rectification. The learned counsel pointed out that in the instant case, the shares are physically transferred to defendant No. 2 and defendant No. 3. The plaintiffs contend that this entry is fraudulent and since appeal is provided to deal with such a contingency before the CLB, the civil court s jurisdiction is barred. The learned counsel then drew my attention to section 397 of the said Act, which provides that in cases of oppression, any member of the company can make an application to the CLB. He also referred to section 398 of the said Act, which provides that in case of mismanagement, any member can complain to the CLB. He then drew my attention to section 402 of the said Act which states what are the powers of the CLB on application under section 397 or 398 of the said Act. The learned counsel pointed out that under section 403 of the said Act, the CLB can pass interim orders and under section 405 thereof, a person can also mark application praying that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights under common law and such a suit is always maintainable. She contended that the ratio of the judgment of this court in Santosh Poddar s case ( supra ) is clearly attracted to this case and, therefore, the impugned order does not merit any interference. 7. In Dhulabhai s case ( supra ) the Supreme Court was considering the question of exclusion of jurisdiction of the civil court to entertain as suit in the context of section 17 of the M.B. Sales Tax Act which bars the jurisdiction of the civil court to entertain certain proceedings. The principles laid down by the Supreme Court which have a bearing on the present case are as under : "1. Where the statute gives a finality to the orders of the special tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. 2. Where there is an express bar of the jurisdiction of the court, an examination of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiffs had taken out a notice of motion for interim relief. In the affidavits in reply filed by the defendants, a preliminary objection was taken to the jurisdiction of the city civil court to entertain and try the suits. The city court framed a preliminary issue as to whether it has jurisdiction to entertain and try the suit in view of the provisions of section 10 of the said Act read with the Notification dated 29-5-1959. This court referred to sections 2(11) and 10 of the said Act and came to the conclusion that whenever there is any reference under the said Act to any proceedings before a court under that Act, (other than proceedings relating to an offence under the Act), the court which will have jurisdiction shall be the High Court or, if there is the requisite notification, the district court. However, there is not ouster of the jurisdiction of the city civil court in all cases where the provisions of the said Act may be attracted. It was further observed that it is only in respect of those proceedings which are expressly contemplated under the said Act under any specific provision that the court which is referred to in that section would be the special court, namely, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endants 3 and 4 as directors of defendant 1 is illegal, null and void and of no consequence whatsoever and any acts, deeds and/or things of any nature whatsoever done by defendant 1-company in pursuance of the alleged appointment of defendant Nos. 3 and 4 as the directors and/or any other act, deed, things done by defendant Nos. 3 and 4 in exercise of powers in the alleged capacity as directors of defendant 1 is illegal, null and void and not binding. A similar declaration is sought that any resolutions allegedly passed in any purported meeting of shareholders or of Board of Directors of defendant No. 1 allegedly held by the Kapoor family or any of them is illegal, null and void and of no consequence whatsoever. 11A. In my opinion, therefore, considering the prayers of the instant suit and the prayers which were before the Division Bench in Santosh Poddar s case ( supra ), I have no hesitation in holding that the ratio of the said judgment is clearly attracted to the facts of this case and, there is no difficulty in holding that as held by the Division Bench in Santosh Poddar s case ( supra ), the instant suit is maintainable. It is also pertinent to note that in the instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w statutory remedy for this enforcement provided, without expressly excluding the civil court s jurisdiction, then both the common law and the statutory remedies might become concurrent remedies. This court then referred to Rao Saheb s case ( supra ), and held that for the relief contemplated by section 155, a suit was the primary remedy under the general law. The relief contemplated by that section was one which was available at common law. Section 155 merely provided a statutory remedy. Its object was not to whittle down or abrogate the procedure by way of suit for getting the relief contemplated by that section. 14. After taking a resume of several judgments on the point, this court observed that the authorities on the subject do recognise the common law right of a shareholder to seek rectification of the register of members, and the jurisdiction on the civil court in appropriate cases is not barred where complicated questions of law and fact arise in an application for rectification under section 155 of the said Act and it is not possible for the court to grant relief without first adjudicating the disputed questions of law and fact. Relying on these observations, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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