9911796707
TMI Blog2024 (11) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... with the provisions of Registration Act to be read with Section 76 of Evidence Act, and particularly in the context of the provisions contained under Section 17 of the Registration Act, where certain documents will be inclusive of the present agreement as it dealt with the Subscription of the Shareholders, which itself is a property under law, which had to be mandatory required to be registered and if that be so, in that eventuality when the application under Section 8 of the Act of 1996, was preferred by the Appellant, it ought to have been accompanied with the certified copy of the agreement at the stage, when the initial objection of 10th October 2018 was filed by the Appellant/Respondent, in opposition to the Company Petition. In that view of the matter and for the said reasons, the authenticated copy cannot be treated as to be a certified copy , which could have been read in evidence under Section 47 of the Registration Act for the purposes to satisfy the restrictions imposed by Sub-Section (2) of Section 8 of the Arbitration and Conciliation Act, 1996. No such application under Section 8 of the Act of 1996, was filed before National Company Law Tribunal, Amravati Bench, to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er ( Technical ) For the Appellants : Mr. Aaditya A Pande , Advocate For the Respondents : Mr. Javeed Hussain , Advocate JUDGMENT As per Justice Sharad Kumar Sharma Member(Judicial) (Hybrid Mode) Brief Facts of the Case are: 1. Brief facts of the Company Appeal are that the Respondents in their capacity of being the Company Petitioners, have preferred a Company Petition on 21st July 2018, as against the Appellants/Respondents, invoking the Provisions contained under Section 96, 173, 241, 244 of the Companies Act of 2013, contending thereof that, the present Appellants who were the Opposite Parties to the proceedings were engaging themselves in an act of Oppression and Mismanagement and particularly it was stated that they had initiated the proceedings in a fashion to override the Arbitration Clause, as it was agreed between the Parties in their Subscription and Shareholders Agreement of 21st July 2014. 2. The Appellant contended that, the entire proceedings in the Transfer Company Petition No.124/241/AMR/TP/2019 [Company Petition No.486/241/HDB/2018] was coloured in a manner to override the agreed Arbitration Clause between the parties which had constituted to be a part and parcel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants and Respondent are the joint signatories of the Subscription and Shareholders Agreement of 21st July 2014, which itself contains an Arbitration Clause as contemplated under Clause 33.2 to be read with Clause 33.3. Hence, as such, under law, the Appellant/Respondent to the Company Petition couldn t have raised an objection in relation to the embargo created by Section 8 of the Arbitration and Conciliation Act of 1996, after entering into the proceedings on merits. 6. But, yet the Appellants/Respondents to Company Petition at a belated stage had filed an objection where they have not raised the preliminary plea about maintainability due to the bar of Arbitration Clause contained under Clause 33.3 in the Shareholders Agreement dated 21st July 2014, the objection was from the perspective that the Proceedings would be barred under Section 8 of the Arbitration and Conciliation Act, 1996. 7. It is an admitted case, that the Appellants for the first time had raised an objection in context of the plea contained under Section 8 of the Arbitration and Conciliation Act, 1996, by filing an objection to that effect on 9th of January 2019, which was numbered as I.A.No.65/2019 wherein th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties have entered into an Agreement on 21st July 2014, they would be bound by its terms and conditions as contained under Clause 33.2 which dealt with the Dispute Redressal Forum and the consequential reference, made to the Arbitrator under Clause 33.3. 10. To deal with the argument as extended by the Learned Counsel for the Appellant, while putting challenge to the Impugned Order, we feel it appropriate to deal with, as to what was the purpose and legislative intent of Section 8 of the Arbitration and Conciliation Act, 1996, which had permitted raising of a bar in any proceedings, which are drawn before the Court/Tribunal or any Judicial Platform. The basic intention of Section 8, was that, as soon as the factum of initiation of a proceeding in a Court or a forum is brought to the knowledge of the Opposite Party, which is other than the agreed Forum as per the terms of the Agreement, the Opposite Party i.e. the Appellant herein was supposed to raise an objection regards the sustainability of the Proceedings, forthwith by filing of an Application under Section 8 of the Arbitration and Conciliation Act of 1996, and not after entering into the proceedings before NCLT on merits, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rbitration may be commenced or continued and an arbitral award made. 12. If the language of Section 8 Sub-Section 1 is taken into consideration as extracted above, it contemplates that, when a proceeding is drawn before a Judicial Authority where an action is initiated, the person who is opposing a claim or a relief sought, has to raise an objection under Section 8 of Arbitration Act at the first available opportunity, and not later than the date of submission of the first Statement on the Substance of Dispute. The important expression under Sub Section 1 of Section 8 is Not later than the date of submitting his first Statement on the Substance of Dispute . Since in the instant case, the Appellants/Opposite Parties, has already filed an objection to the Interim Relief Application, which in its material content was an objection to the principle claim raised and since the same has been filed on 10.10.2018, the said cut-off date would be taken as to be the first available opportunity to the Appellant to raise an objection with regards to Section 8 of the Arbitration and Conciliation Act, 1996. Having not done so, the application under Section 8 would not be maintainable and the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , under law the certification of a document has to be in accordance with the provisions of Registration Act to be read with Section 76 of Evidence Act, and particularly in the context of the provisions contained under Section 17 of the Registration Act, where certain documents will be inclusive of the present agreement as it dealt with the Subscription of the Shareholders, which itself is a property under law, which had to be mandatory required to be registered and if that be so, in that eventuality when the application under Section 8 of the Act of 1996, was preferred by the Appellant, it ought to have been accompanied with the certified copy of the agreement at the stage, when the initial objection of 10th October 2018 was filed by the Appellant/Respondent, in opposition to the Company Petition. In that view of the matter and for the said reasons, the authenticated copy cannot be treated as to be a certified copy , which could have been read in evidence under Section 47 of the Registration Act for the purposes to satisfy the restrictions imposed by Sub-Section (2) of Section 8 of the Arbitration and Conciliation Act, 1996. When the Legislature has specifically used the word the O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtified Copy as it has been dealt with in Para 8 can be borrowed to be applied for the purposes of the instant case and the relevant derivation as made, as to what would be the certified copy has been dealt in Para 6 and 8 of the said Judgment which is extracted hereunder: (6.) Thus, with a view to find out the meaning of word 'copy' first we advert to take assistance from the dictionaries. In Black's Law Dictionary, Fourth Edition, the word 'copy' is defined as: The transcript or double of an original writing and in Judicial Dictionary by Alyear's Eleventh Edition, the word 'copy' is defined as: A transcript of an original document There, thus, could be no doubt that the ordinary dictionary meaning of the word copy is a reproduction or transcription of an original writing. Learned State counsel submitted that the dictionary cannot be taken aid for finding out the meaning of the word copy as dictionaries are not dictators of statutory construction. Krishna Iyer, J. in State Bank of India v. N. S. Money, AIR 1976 SC 1111 [LNIND 1976 SC 13] : ( 1976 Lab IC 769 [LNIND 1976 SC 13]) (Para 8 at page,1114) while propounding the said principle stated that di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... providing and it is so under the authority of law. So the meaning of the word copy here is exact copy of the judgment which forms the part of the record and can be made available for perusal only and the same remains in the custody of the persons who is in charge of a record. Section 363(1) of the Code says that when the accused is sentenced to imprisonment, a copy of the judgment shall, immediately after the pronouncement of the judgment, be given to him free of cost and there is proviso under Sub-Section (2) which says that where a sentence of death is passed or confirmed by the High Court, a certified copy of the judgment shall be immediately given to the accused free of cost whether or not he applied for the same. The Court in such a case shall inform the accused of the period within which, if he wishes to appeal, his appeal should be preferred. Sub-Section (6) also provides that the High Court may, by rules, provide for the grant of copies of any Judgment or order of a criminal Court to any person who is not affected by a judgment or order, on payment, by such person, of such fees and subject to such conditions as the High Court may, by such rules, provide. Here the appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foot of such copy that it is a true copy of such document, that is to say, to supply to the applicant what is known as a certified copy. Therefore, whether it is the accused person who applies for a copy under Section 363 of the Code or it is the State which applies for a copy, the copy supplied by the public officer must be a certified copy and as such it is reasonably held that it is certified copy so obtained that must be filed. The copy may be of three kinds: (i) Copy obtained privately. (ii) Authenticated copy. (iii) Certified copy. The copy which is obtained privately under the law has no relevance. Authenticated copy. is a copy which is given to the accused free of cost and it has got value and that, in essence, is the copy duly authenticated and the accused can file appeal on the basis of it. Certified copy is the copy which is made available on application being made to the concerned authority and it required certain formalities and also contains a certificate that when the copy was applied for, when the same was got ready for delivery and when it was actually delivered. It is for the purpose that in case limitation is expiring then the person may have aid of Section 12 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent/Petitioner for substantiating Proceedings of the Company Petition No.486/241/HDB/2018. The said prospective has been considered in recent Judgment in the matters of NN Global Mercantile (P) Ltd. v Indo Unique Flame Ltd., as reported in (2023) Volume VII SCC 1 and particularly the observations which has been made and which would be relevant for the purposes of the instant Company Appeal is that as contained in Para 138, dealing with the context as to what would be the certified copy . The same is extracted hereunder: 138. It is, no doubt, true that under the Scheme, an applicant can produce, either the original or the certified copy. What is a certified copy? A certified copy is to be understood in the light of Section 76 of the Evidence Act, 1872 (hereinafter referred to as the Evidence Act for short). It reads as follows: 76. Certified copies of public documents. Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case m ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
