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TMI Blog2017 (7) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been misplaced. Third Respondent is the Share Transfer Agent of the 1st Respondent Company from 2010. Petitioner made a request to the Registrar of the 1st Respondent Company and Share Transfer Agent of the 3rd Respondent to issue duplicate shares vide letter dated 11.9.2015. 4. Petitioner made another request to Respondent No.3 by a letter dated 7.10.2015 to provide procedure/formalities for issuance of duplicate share certificates through Mail. Petitioner issued a reminder on 9.10.2015 to Respondent No.4 for intimation of process for issue of duplicate shares through Mail on 2.11.2015. Petitioner received a letter from Respondent No.3 asking the Petitioner to attend their Mumbai Office in person along with certain documents mentioned in that letter. On 10.11.2015 Petitioner wrote letter informing Respondent No.3 that he visited the office of Respondent No.3 on 15.10.2015 and the office of Respondent No.1 on 16.10.2015 and produced relevant documents for verification in person in respect of his application dated 11.9.2015 for issue of duplicate shares. 5. On 20.11.2015, the 3rd Respondent wrote a letter to the Advocate for the Petitioner informing that the impugned shares we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tribunal has no power to issue direction for issuance of duplicate shares. It is stated that issuance of duplicate shares is governed by Section 46(2) of Companies Act, 2013 which corresponds to Section 84(2) of the Old Companies Act, 1956, and Rule 4 of the Companies (Issue of Share Certificates) Rules, 1960. Rule 4(3) of the Companies (Issue of Share Certificates) Rules, 1960 provides as under:- "No duplicate shares certificates shall be issued on lieu of those that are lost or destroyed without the prior consent of the board or without payment of such fees, if any, not exceeding Rs. 2 and on such reasonable terms, if any, as to evidence and indemnity and the payment of out-of-pocket expenses incurred by the company in investigating evidence, as the board thinks fit." 8. It is also stated in the Reply that the Company had received claim of ownership on the impugned shares from Respondent No.5. It is stated that Respondent No.5 claimed that he purchased those shares from the Petitioner in the year 1998 itself. It is also stated that the Respondent No.5 filed Civil Suit for declaration and injunction in respect of impugned shares vide TS No. 87 of 2016 on the file of District ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of Rs. 2 each. 9.1 1st Respondent filed Affidavit-in-Reply stating that Pinnacle Shares Registry Pvt. Ltd., was not the 1st Respondent's Share Transfer Agent as on 1.1.1998. The said Agent was appointed as Share Transfer Agent in or around 2003. It is also stated that in the year 1998 the shares of 1st Respondent Company were not listed on NSE. One Rusoday Securities Limited was a Member of NSE Ltd; the contract note relied upon by the Respondent No.5 was issued by Rusoday Securities Limited. It is also stated that the Transfer Deed submitted by Respondent No.5 suggests a purchase price of Rs. 3.20 per share on website of Bombay Exchange the market price of the shares on that day was opened at Rs. 1.60 per share; the highest was Rs. 1.60 per share; the lowest was Rs. 1.30 per share; and closed at Rs. 1.50 per share. It is stated that in one contract note the name of the 1st Respondent Company is written as "Symphony Limited" and in another contract note, it is mentioned as "Symphony Sanskrut Comfort Systems Limited". 10. 2nd Respondent, who is a Company Secretary of 1st Respondent Company stated that he has no role to play in the present matter and he is not concerned with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.11.2015 it is clear that the share certificates sent by Respondent No. 5 have been lost at the end of the Respondent No.l. It is also stated that this Tribunal has no power to give directions to issue duplicate share certificates under Section 59 of the Companies Act. Petitioner started writing letters only from 11th September, 2015, i.e., after receiving the notice of Annual General Meeting of 1st Respondent Company, for issue of duplicate share certificates without any documentary evidence to show that the shares were lost. Petitioner did not lodge any complaint or FIR for the loss of share certificates. Even after the Petitioner came to know that Respondent No.5 lodged for transfer of shares in his name, petitioner did not lodge any report with the police. 5th Respondent filed the Suit TS No. 87 of 2016 on the file of Alipore District Court praying for transfer of shares in his name and for injunction. Share Transfer Form has been designed in the format wherein 10 share certificate details can be entered in the same Form. Hence the allegation made by the petitioner that there should be 40 transfer deeds instead of 8 transfer deeds is not correct. Respondent No.5 prayed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by 1st Respondent with the Petitioner and 5th Respondent revealed that the 1st Respondent Company has asked the parties to settle the issue between themselves or produce an order from the competent Court of Law. 15. Now, coming to the reliefs prayed by the Petitioner, this Petition is filed under Sections 56, 58 and 59 of the Companies Act, 2013 ("the Act" for short). Section 58 of the Act reads as follows:- "58. Refusal of registration and appeal against refusal:- (1) If a private company limited by shares refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any securities or interest of a member in the company, it shall within a period of thirty days from the date on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferor and the transferee or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal. (2) Without prejudice to sub-section (1), the securities or other interest of any member in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y delay was made in making entry in the Register of Members. The case of the Petitioner does not fall in any one of the categories enumerated in Section 59 of the Companies Act. Therefore, the relief prayed in this case does not come within the purview of Sections 58 and 59 of the Act. 18. Section 56 of the Act came into force with effect from 1.4.2014. Section 56 reads as follows:- "56. Transfer and transmission of securities:- (1) A company shall not register a transfer of securities of the company, or the interest of a member in the company in the case of a company having no share capital, other than the transfer between persons both of whose names are entered as holders of beneficial interest in the records of a depository, unless a proper instrument of transfer, in such form as may be prescribed, duly stamped, dated and executed by or on behalf of the transferor and the transferee and specifying the name, address and occupation, if any, of the transferee has been delivered to the company by the transferor or the transferee within a period of sixty days from the date of execution, along with the certificate relating to the securities, or if no such certificate is in exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... five lakh rupees and every officer of the company who is in default shall be punishable with fine which shall not be less than ten thousand rupees but which may extend to one lakh rupees. (7) Without prejudice to any liability under the Depositories Act, 1996 (22 of 1996), where any depositor or depository participant, with an intention to defraud a person, has transferred shares, it shall be liable under section 447." Reading of the above said Section discloses that where the instrument of transfer has been last, the power to issue duplicate shares lies with the Board of the Company. There is nothing in Section 56 which indicate that this Tribunal can give a direction to the Company to issue duplicate shares. Section 46(2) of the Act says, that, "A duplicate certificate of shares may be issued, if such certificate is proved to have been lost or destroyed; or has been defaced, mutilated or torn and is surrendered to the company." The corresponding Section in the Old Act is 84(4). Section 84(4) of the Old Act says the same thing which the Section 46(2) of the New Act says. Rule 4 of the Companies (Issue of Share Certificate) Rules, 1960 ["the Old Rules" for short] are framed in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is matter or the parties have to be relegated to the Civil Court for appropriate reliefs. 23. As discussed earlier, there is no provision in the Companies Act, 1956 or in the Companies Act, 2013 or in the Old Rules or in the New Rules which specifically give an authority to this Tribunal to give directions to the Company to issue duplicate shares. 24. But it may be said that when the Company unjustifiably denies issuance of duplicate shares in a given case, even when there is a material for the Company to act, can it be said that this Tribunal cannot direct the Board of the Company to issue duplicate shares. 25. When the Statute creates a right to obtain duplicate shares upon satisfying the Board about loss of shares and when the Board did not exercise its discretion in the manner in which it is expected to exercise, then the judicial authorities or quasi- judicial authorities are certainly entitled to give appropriate directions. 26. In the case on hand, Petitioner did not place any material on record as to when he misplaced the share certificates or when he lost the share certificates. Petitioner did not even choose to give report to the police about the misplacement of share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Apex Court has observed as under:- "We have already held above the jurisdiction of the Court under section 155, to the extent it has exclusive jurisdiction of Civil Court is impliedly barred. For what is not covered as aforesaid the Civil Court would have jurisdiction." Therefore, it is clear from the Judgment of the Hon'ble Apex Court in Ammonia Supplies Corpn. (P.) Ltd. (supra), insofar as matters of rectification are concerned, it is the Company Court only has jurisdiction. If issues which have to be answered are not peripheral to rectification but issues regarding title, etc., then such other issues will have to be decided by the Civil Court. The Apex Court has now recognised that it is the Company Court which would be the Court of exclusive jurisdiction in so far as rectification is concerned. However, if issues arise, whether the applicant is the owner of the shares; whether there is fraud or forgery in holding the shares or the very title to the shares, then such issues will be beyond the jurisdiction of the Company Court and will have to be decided by the Civil Court. 29. It is pertinent to mention here that Section 155 of the Companies Act was omitted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to strike off his name from the array of the parties. It is stated by the 2nd Respondent that it has nothing to do with the inter se dispute between the Petitioner and 5th Respondent. It is his case that no relief is prayed against him and he is unnecessarilv impleaded in this Petition. 33.1 In the Petition there are no allegation made against the 2nd Respondent. But in the Rejoinder filed by the Petitioner, allegations were made against the 2nd Respondent that he colluded with the 5th Respondent and brought into existence some forged and fabricated documents. 33.2 No material is placed on record by the Petitioner to substantiate such wild allegations involving 2nd Respondent. More so, the Petitioner did not seek any relief against the 2nd Respondent. Moreover, there is no basis to grant any relief in this application against 2nd Respondent. More so, the Main Petition itself is misconceived, considering the prayer made by the Petitioner. Therefore, the Application No. IA No.9 of 2017 is closed in view of dismissal of TP No. 116/2016. 33.3 IA No. 49 of 2017 filed seeking adjournment is dismissed as infructuous. 34. In view of the above said findings, the Petition TP No. 116 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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