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TMI Blog2022 (10) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... d impugned order dated 3rd April 2019, complaint of the Petitioner No.1 made to Respondent No.1- Registrar of Companies (Western Region) about the non-issuance of duplicate certificate by Respondent No.3-Mideast Integrated Steels Limited (hereinafter referred to as "MISL"), non-payment of dividend and non-receipt of notice for general meeting was dismissed on the ground that dispute is sub-judice before the High Court of Judicature at Bombay vide Commercial Suit (L) No.368 of 2017 titled as Twenty First Century Finance Limited vs. Moorgate Industries India Private Limited and Ors. 2. Before setting out the rival contentions and consideration of the same, it is necessary to set out certain factual aspects as emanating from the Writ Petition. i. Petitioner No.1 executed two separate agreements dated 5th August 2005, one with Respondent No.4- Twenty First Century Finance Limited (hereinafter referred to as "TFCFL") and Stemcor Sea Pvt. Ltd (an associate company of the Petitioner No. 1) and another with Mesco Projects Limited and Stemcor Sea Pvt. Ltd. By these agreements, Petitioner No. 1 purchased and acquired equity shares of MISL aggregating to 10% of the total issued share capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sent to earlier registered address and therefore, sought fixing of fresh date of hearing. As no fresh date of hearing was communicated, Petitioner No.1 sent letter dated 19th February 2019. Inspite of above position and oral assurance given to the Advocate of the Petitioner No.1, without giving any hearing to the Petitioners, Respondent No.1 passed the impugned order on 3rd April, 2019 mainly on the ground that suit is pending between the parties. xv. Notice of Motion No. 468 of 2017 in Commercial Suit No. 584 of 2017 filed by Respondent No. 4 -TFCFL seeking appointment of Court Receiver as a Receiver of the suit shares and for an injunction restraining Petitioner No. 1 from creating any 3rd party rights or accepting dividends, bonus shares and also from exercising any rights in respect of the said shares, was dismissed by learned Single Judge by order dated 19th March, 2019. xvi. On 25th April, 2019, Petitioner sent communication through Advocate to Respondent No.1 explaining that the suit and complaint filed with Respondent No.1 are not connected with each other. xvii. Thereafter, Petitioner No.1 sent reminder dated 25th April 2019. 3. In the above background, on 13th Aug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CLT and NCLAT are constituted, not under the IBC, 2016 but under Sections 408 and 410 of the Companies Act, 2013. Without specifically defining the powers and functions of the NCLT, Section 408 of the Companies Act, 2013 simply states that the Central Government shall constitute a National Company Law Tribunal, to exercise and discharge such powers and functions as are or may be, conferred on it by or under the Companies Act or any other law for the time being in force. Insofar as NCLAT is concerned, Section 410 of the Companies Act merely states that the Central Government shall constitute an Appellate Tribunal for hearing appeals against the orders of the Tribunal. The matters that fall within the jurisdiction of the NCLT, under the Companies Act, 2013, lie scattered all over the Companies Act. Therefore, Sections 420 and 424 of the Companies Act, 2013 indicate in broad terms, merely the procedure to be followed by the NCLT and NCLAT before passing orders. However, there are no separate provisions in the Companies Act, exclusively dealing with the jurisdiction and powers of NCLT." (Emphasis added) (iv) He also relied on judgment in the case of Rajiv Sanghvi & Ors. vs. Pradip R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge Hotels Private Limited vs. Ahamed Nizar Moideen Kunhi 2020 SCC Online NCLAT 737, which reads as under:- "39. It is to be pointed out that the power to issue 'Duplicate Shares' is with the Board of Directors of the Company and the same may be issued if such certificate is established to have been lost or destroyed or torn or mutilated or was defaced and is surrendered to the Company. Further, the refusal order of the Board of a Company to issue 'Duplicate Shares' can be assailed before the Tribunal when the powers of the Board was improperly exercised, although there is absence of provision in the Companies Act for a 'Tribunal' to issue necessary directions to the Board of a Company to issue the 'Duplicate Shares' in question." (Emphasis added) (x) He also relied on paragraph 19 of Parenteral Drugs (India) Limited vs. Jagdish Mangal HUF & Ors.2020 (2) MPLJ. Said paragraph 19 reads as under:- "19. In the present case, the parties are at variance with regard to the issue of duplicate share certificate. In the backdrop of the law laid down by Hon'ble the Apex Court and followed by the Bombay High Court and the afore stated provisions of the Companies Act, in the facts and cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be expedient and efficacious to file the present Petition in this Hon'ble Court. The Petitioner therefore submits that this Hon'ble Court has jurisdiction to entertain, try and decide the present Petition." (Emphasis added) 10. It is important to note the averments in the affidavit-in-reply of the Respondent No.4 regarding paragraph 45 of the Writ Petition, which reads as under:- "w. With reference to paragraph 41 to 49, the contents thereof do not warrant a response from this Respondent." Thus, the averments made in the paragraph 45 by the Petitioners have remained uncontroverted and deemed to have been accepted. Thus, the above pleadings in the Writ Petition and the Affidavit-in-reply establishes following admitted position :- a) The said shares are listed with the Bombay Stock Exchange and are traded in Mumbai. The Petitioner would be able to trade with the said shares in Mumbai. The Duplicate Share Certificates once issued (in dematerialised form) would be issued in the Petitioner's demat account in Mumbai. b) The ROC's Impugned Letter/Order has affected Petitioners' rights in Mumbai. Thus, the impugned order of ROC has affected Petitioners' rights in Mumbai. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er:- "21. The said Agreements dated 5th August 2005 are entered into between the parties in Mumbai. The Defendant No.1 who is the main contesting Defendant has its registered office at Mumbai. The Defendant No.3 also carries on business at Mumbai. No reliefs as sought against Defendant No.2. Therefore, this Hon'ble Court has the territorial jurisdiction to try and entertain the present suit." 13. This Court has occasion to consider the issue regarding jurisdiction to entertain Writ Petition under Article 226 of the Constitution of India in case of Asianet Star Communications Pvt. Ltd. vs. Competition Commission of India & Ors.Writ Petition No.3755 of 2022. The relevant discussion is from paragraphs 17 to 22 which are reproduced hereinbelow:- "17 Jurisdiction connotes authority to decide. 18 The power conferred upon the High Court to issue directions, orders or writs can be exercised by the High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power. The Court exercising power under Article 226 of the Constitution can issue writs detailed under clause 1 to the person or authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Talkies & Cold Storage (P) Ltd. 1997 CWN 122, S.S. Jain & Co. Vs. Union of India 1993 SCC OnLine Cal 306 and New Horizon Ltd. Vs. Union of India 1993 SCC OnLine Del 564." 20 The Division Bench of this Court in the case of Sachin Chhotu Pawar Vs. Collector, Raigad & Ors.2020 (6) Mh.L. J.285 to which one of us (S.V. Gangapurwala,J) was a party, observed as under: 18. The extraordinary jurisdiction of this Court under Article 226 of the Constitution is sky high, but also has a regulation coming along under Article 226(2). The powers of this Court under Article 226 is sacrosanct. No statute or legislature can limit the powers of this Court under Article 226 of the Constitution. The constitution does not place fetter on exercise of extraordinary jurisdiction. This Court would exercise its authority, power or jurisdiction within its territorial realm. This Court normally would not travel beyond its limits. 19. Reading Article 226(1) and (2) of the Constitution, a petition under Article 226 can be entertained before any of the High Court : i) Within whose territorial jurisdiction the person or authority against whom relief is sought resides or is situated. ii) The cause of acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equences of the impugned order fell on the Petitioner would be a place where at least the cause of action in part would arise. 15. Thus, in this case, the following two factors are required to be taken into consideration for determining the jurisdiction of this Court under Article 226 of the Constitution of India. i. At least part of cause of action has arisen in the territorial jurisdiction of this Court. ii. Consequences of the impugned order fell on the Petitioner in the territorial jurisdiction of this Court. It is necessary to analyze the facts of this case in the light of above principles. 16. By the impugned order the Petitioners' complaint inter alia regarding non-issuance of duplicate share certificate was rejected. The said demand was made on the basis of two separate agreements (i) agreement dated 5th August 2005 entered into by Petitioner No.1 with Respondent No.4 and Stemcor Sea Pvt. Ltd. and (ii) agreement dated 5th August 2005 entered into by Petitioner No.1 with Mesco Projects Limited and Stemcor Sea Pvt. Ltd. By these agreements, Petitioner No.1 purchased and acquired equity shares of MISL aggregating to 10% of the total issued share capital of MISL. Subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r's attorney's letter dated 19th November 2018 intimating date of hearing. Then it was realized that the said letter was sent on the old registered address of the Petitioner No.1. 22. Thus, it is admitted position that the Petitioner No. 1 was not heard on 28th November, 2018 when the hearing on said complaint was scheduled. It is further significant to note that thereafter on 29th November 2018 and 19th February 2019, Petitioner No.1 requested that hearing be granted by fixing fresh date. However, there is no response from ROC to the said letters and the impugned order was passed on 3rd April 2019. It is to be noted that the impugned order dated 3rd April 2019 was sent on the new registered address of the Petitioner No.1. 23. The factual position on record clearly show that although Petitioner No.1 remained absent when the hearing of the said complaint was scheduled on 28th November 2018 as they have not been served with the notice of hearing but all along they requested for another date of hearing and without granting hearing, order was passed. It is further significant to note that this is not a case where after 28th November 2018 i.e. after scheduled date of hearing the ROC h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Supreme Court in Shripal Jain (supra) that ROC has jurisdiction to deal with the said complaint. Whereas it is the submission of the Respondent No.4 that the said judgment has no application as in view of constitution of NCLT by the Act of 2013, the grievance regarding non-issuance of duplicate certificate will have to be raised before the NCLT.. It is the contention of the Respondent No.4 that jurisdiction to deal with complaint regarding non-issuance of Duplicate Share Certificate and regarding non-receipt of notice for general meeting is with NCLT. It is also the contention of Respondent No.4 that as far as the issue regarding non-payment of dividend is concerned, the jurisdiction is with SEBI. 28. Learned counsel appearing for the Respondent Nos. 4, 5(a) to 5(c) has relied on Parenteral Drugs (India) Ltd. (supra). Paragraph 19 of the said judgment appears to have been supporting the contention of the Petitioners that issue regarding issuance of duplicate share certificate is company matter and not a civil dispute. Thus, non-entertaining the complaint by ROC on the ground of pendency of suit appears to be contrary to the said judgment. However, we are not going into the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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