(From previous issue)
17. With a view to appreciate the submission made by the learned Advocates from both sides, we have to consider the plaint of the instant suit and the principles of law as laid down in the Civil Procedure Code and the Companies Act. According to the provision of section 9 of the Civil Procedure Code gives Jurisdiction to the Civil Court to try all civil disputes unless they are expressly or impliedly barred. Expressly barred means barred by any enactment passed by legislature and impliedly barred means the remedy is available in the statute itself for the right or obligation it has created and, as such, same remedy cannot be sought in a civil court. In the cases of Messrs Chalna Fibre Company Ltd. Khulna vs Abdul Jabbar and 9 others reported in 20 DLR (SC) 335 it was held that:
”It is a well settled rule that the ouster of jurisdiction of a civil Court in respect of a civil suit is nut to be readily inferred. Unless that jurisdiction has been either expressly or impliedly taken away by some other law it will continue to vest in the civil Court.”
18. According to the provision of the section 2(d) of the Companies Act, 1994, the court means the court having jurisdiction under this Act. Section 3 of the Companies Act provides that the Court having jurisdiction under this Act shall be the High Court Division provided that the Government may, by notification in the Official Gazette and subject to such restrictions and conditions as it thinks fit empower any District Court to exercise all or any of the jurisdiction by this Act conferred upon the Court, and in that case such District Court shall, as regard the jurisdiction so conferred, be the court in respect of all companies having their registered office in the district.
19. The learned Advocate for the respondents argued that the reliefs claimed by the Appellant fall under the jurisdiction of the High Court Division as company matter, under section 43 of the Companies Act, according to the provision of Rule 9 of the Companies Rule 2000. Rule 9 of the Companies Rule 2000, provides that:
“In all courts having jurisdiction under this Act shall be kept and maintained a book called “the Register of Company Matters” in which shall be entered and numbered serially all application made under sections 13, 15, 41, 43, 59, 71, 81, 82, 85,89, 115, 151, 153, 111, 175, 176, 193,203, 228, 229, 230, 231, 233, 245, 248, 251, 253, 255, 258, 259, 261, 262, 263, 264, 265, 293, 294, 296, 299, 300, 301, 302, 303, 305, 309, 311, 312, 314, 316, 326, 328, 331, 333, 338, 339, 340, 342, 346, 349, 395, 396, and any other original proceeding under the Act in relation to a company “.
20. According to provision of Rule 9 an aggrieved person can file an application under section 43 of the Companies Act, to rectify the register of members of a company. This Section provides that:
43. Power of Court to rectify register:-
(1) If- (a) the name of any person is without sufficient cause entered in or omitted from the register of members of a company; or (b) default is made or unnecessary delay takes place in entering on the register the fact of any person having become or ceased to be, a member, the person aggrieved, or any member of the company, or the company, may apply to the Court for rectification of the register.
(2) The Court may either refuse the application, or may order rectification of the register and payment by the company of any damage sustained by any party aggrieved and may also make such order as costs as it may consider proper.
(3) On any application under this section the Court may decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register whether the question arises between members or alleged members or between members or alleged members on the one hand and the company on the other hand and generally may decide any question necessary or expedient to be decided for rectification of the register and may also decide any issue involving any question of law.
21. We also consider the submission placed by the learned Counsel for the appellant that the reliefs claimed by the Appellant are not only for rectification of share register, there are allegation of fraud against the defendants and adequate relief cannot be provided under the aforesaid section. Further, there is no provision in the Companies Act to file any declaratory suit under which the plaintiff could seek reliefs he claimed in the suit and these reliefs are only. available under section 42 of the Specific Relief-Act.
22. In the present suit, the plaintiff praying for following reliefs to the court, according to the provision of section 42 of the Specific Relief Act, to the effect that a decree be passed declaring that (a) the plaintiff is legally appointed Managing Director of the R. Zaman and Company Limited and (b) the removal of the plaintiff from the post of Managing Director of the Company is illegal and without jurisdiction and (c) a decree be passed to the effect that the appointment of the defendant No. 2 as Managing· Director of· the Company is illegal and other reliefs prayed by plaintiff with regard to the properties of the company and to deposit the same or equivalent money to the company’s account. All that had been done, according to the plaint that his fictitious removal from the post of the Managing Director of the Company had been accepted by defendant No. 1. The plaintiff alleged that the defendant No.2 in collusion with defendant Nos. 3-6 created some false documents to transfer shares of company to the 3rd parties and the defendant Nos. 2-6 in collusion with each other sold out stock and other articles of the said Mill amounting to Taka 2, 00, 00, 000 (two crore), for depriving of the plaintiff from his due share as major share holder of the company, all these had been done fraudulently and illegally. He also alleged that the defendant No. 2-6 tried to misappropriate the properties of the Mill and he had been illegally and fraudulently removed from his office of Managing Director and that he could only be restored to his said office, if he obtained a declaration from a competent court that his removal was illegal.
23. We also noticed that the plaintiff alleged, some forged documents have been created to deprive him from the properties and assets of the company, he also seeks reliefs with regard to the assets of the company, these reliefs are not simple in nature for adjudication in summary manner and need be adjudicated after taking both oral and documentary evidence and should not be decided in summary proceeding for rectification of the share register, according to the provision of section 43 of the Companies Act.
24. Considering the facts and circumstances of the case and the principle of law as laid down it appears that the nature of the dispute is entirely a civil dispute and it can only be resolved by a competent civil court. There is no provision in the Companies Act to file any declaratory suit under which the plaintiff could seek reliefs he claimed in the suit and these reliefs are only available under section 42 of the Specific Relief Act.
25. In view of submission made above, we find substance in this appeal.
26. Accordingly, the appeal is allowed and the judgment and decree dated 25-7-2010 passed by learned Joint District Judge, 5thCourt, Dhaka in Title Suit No. 162 of 2009 is hereby setaside and the connected Civil Rule being No. 489(F)/2010 is he1eby discharged.
Send Jown the lower Court’s records along with a copy of this judgment at once.
(Concluded)
17. With a view to appreciate the submission made by the learned Advocates from both sides, we have to consider the plaint of the instant suit and the principles of law as laid down in the Civil Procedure Code and the Companies Act. According to the provision of section 9 of the Civil Procedure Code gives Jurisdiction to the Civil Court to try all civil disputes unless they are expressly or impliedly barred. Expressly barred means barred by any enactment passed by legislature and impliedly barred means the remedy is available in the statute itself for the right or obligation it has created and, as such, same remedy cannot be sought in a civil court. In the cases of Messrs Chalna Fibre Company Ltd. Khulna vs Abdul Jabbar and 9 others reported in 20 DLR (SC) 335 it was held that:
”It is a well settled rule that the ouster of jurisdiction of a civil Court in respect of a civil suit is nut to be readily inferred. Unless that jurisdiction has been either expressly or impliedly taken away by some other law it will continue to vest in the civil Court.”
18. According to the provision of the section 2(d) of the Companies Act, 1994, the court means the court having jurisdiction under this Act. Section 3 of the Companies Act provides that the Court having jurisdiction under this Act shall be the High Court Division provided that the Government may, by notification in the Official Gazette and subject to such restrictions and conditions as it thinks fit empower any District Court to exercise all or any of the jurisdiction by this Act conferred upon the Court, and in that case such District Court shall, as regard the jurisdiction so conferred, be the court in respect of all companies having their registered office in the district.
19. The learned Advocate for the respondents argued that the reliefs claimed by the Appellant fall under the jurisdiction of the High Court Division as company matter, under section 43 of the Companies Act, according to the provision of Rule 9 of the Companies Rule 2000. Rule 9 of the Companies Rule 2000, provides that:
“In all courts having jurisdiction under this Act shall be kept and maintained a book called “the Register of Company Matters” in which shall be entered and numbered serially all application made under sections 13, 15, 41, 43, 59, 71, 81, 82, 85,89, 115, 151, 153, 111, 175, 176, 193,203, 228, 229, 230, 231, 233, 245, 248, 251, 253, 255, 258, 259, 261, 262, 263, 264, 265, 293, 294, 296, 299, 300, 301, 302, 303, 305, 309, 311, 312, 314, 316, 326, 328, 331, 333, 338, 339, 340, 342, 346, 349, 395, 396, and any other original proceeding under the Act in relation to a company “.
20. According to provision of Rule 9 an aggrieved person can file an application under section 43 of the Companies Act, to rectify the register of members of a company. This Section provides that:
43. Power of Court to rectify register:-
(1) If- (a) the name of any person is without sufficient cause entered in or omitted from the register of members of a company; or (b) default is made or unnecessary delay takes place in entering on the register the fact of any person having become or ceased to be, a member, the person aggrieved, or any member of the company, or the company, may apply to the Court for rectification of the register.
(2) The Court may either refuse the application, or may order rectification of the register and payment by the company of any damage sustained by any party aggrieved and may also make such order as costs as it may consider proper.
(3) On any application under this section the Court may decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register whether the question arises between members or alleged members or between members or alleged members on the one hand and the company on the other hand and generally may decide any question necessary or expedient to be decided for rectification of the register and may also decide any issue involving any question of law.
21. We also consider the submission placed by the learned Counsel for the appellant that the reliefs claimed by the Appellant are not only for rectification of share register, there are allegation of fraud against the defendants and adequate relief cannot be provided under the aforesaid section. Further, there is no provision in the Companies Act to file any declaratory suit under which the plaintiff could seek reliefs he claimed in the suit and these reliefs are only. available under section 42 of the Specific Relief-Act.
22. In the present suit, the plaintiff praying for following reliefs to the court, according to the provision of section 42 of the Specific Relief Act, to the effect that a decree be passed declaring that (a) the plaintiff is legally appointed Managing Director of the R. Zaman and Company Limited and (b) the removal of the plaintiff from the post of Managing Director of the Company is illegal and without jurisdiction and (c) a decree be passed to the effect that the appointment of the defendant No. 2 as Managing· Director of· the Company is illegal and other reliefs prayed by plaintiff with regard to the properties of the company and to deposit the same or equivalent money to the company’s account. All that had been done, according to the plaint that his fictitious removal from the post of the Managing Director of the Company had been accepted by defendant No. 1. The plaintiff alleged that the defendant No.2 in collusion with defendant Nos. 3-6 created some false documents to transfer shares of company to the 3rd parties and the defendant Nos. 2-6 in collusion with each other sold out stock and other articles of the said Mill amounting to Taka 2, 00, 00, 000 (two crore), for depriving of the plaintiff from his due share as major share holder of the company, all these had been done fraudulently and illegally. He also alleged that the defendant No. 2-6 tried to misappropriate the properties of the Mill and he had been illegally and fraudulently removed from his office of Managing Director and that he could only be restored to his said office, if he obtained a declaration from a competent court that his removal was illegal.
23. We also noticed that the plaintiff alleged, some forged documents have been created to deprive him from the properties and assets of the company, he also seeks reliefs with regard to the assets of the company, these reliefs are not simple in nature for adjudication in summary manner and need be adjudicated after taking both oral and documentary evidence and should not be decided in summary proceeding for rectification of the share register, according to the provision of section 43 of the Companies Act.
24. Considering the facts and circumstances of the case and the principle of law as laid down it appears that the nature of the dispute is entirely a civil dispute and it can only be resolved by a competent civil court. There is no provision in the Companies Act to file any declaratory suit under which the plaintiff could seek reliefs he claimed in the suit and these reliefs are only available under section 42 of the Specific Relief Act.
25. In view of submission made above, we find substance in this appeal.
26. Accordingly, the appeal is allowed and the judgment and decree dated 25-7-2010 passed by learned Joint District Judge, 5thCourt, Dhaka in Title Suit No. 162 of 2009 is hereby setaside and the connected Civil Rule being No. 489(F)/2010 is he1eby discharged.
Send Jown the lower Court’s records along with a copy of this judgment at once.
(Concluded)
