Calcutta High Court
Eastern Tea Estate Ltd vs J.Thomas & Company Ltd & Ors on 9 February, 2018
Author: Arijit Banerjee
Bench: Jyotirmay Bhattacharya, Arijit Banerjee
ORDER SHEET
G.A.No.181 of 2018
With
APO 34 OF 2017
GA 280 OF 2018
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
EASTERN TEA ESTATE LTD
VS
J.THOMAS & COMPANY LTD & ORS
BEFORE:
The Hon'ble ACTING CHIEF JUSTICE JYOTIRMAY BHATTACHARYA
The Hon'ble JUSTICE ARIJIT BANERJEE
Date : 9th February, 2018.
For Petitioner : Mr.Subhankar Nag,Advocate
Mr.Rajib Mullick,Advocate
For Respondent No.4 : Mr.D.Roychowdhury,Advocate
Mr.K.Chakraborty,Advocate Mr.K.S.Haque,Advocate For respondent Nos.1 & 2 : Mr.A.Basu,Advocate For intervenor : Mr.D.N.Sharma, Advocate Mr.N.Dasgupta,Advocate Mrs.D.Chatterjee,Advocate The Court : G.A.No.280 of 2018 is an application wherein the applicants pray for being added as parties to the pending appeal being APO No.34 of 2017. The other parties to the appeal pray for leave to file Affidavit-in- opposition to the said application. Let Affidavit-in-opposition to the said application be filed within three weeks from date. Reply thereto, if any, be filed within two weeks thereafter. List the matter six weeks hence. 2
G.A.No.181 of 2018 is an application taken out by the respondent No.3 in the appeal praying for a direction on the Registrar, Original Side of this Court for transmitting to Registrar of the National Company Law Tribunal, Guwahati Bench the original share certificates deposited with him as per this Court's order.
By an order dated 14th December, 2016 passed in G.A.No.3576 of 2016 in connection with E.C.209 of 2014, the learned single Judge had directed the Receiver to retain possession of certain shares in the applicant company and not to make over such share certificates to any person without the express previous leave of this Court. The matter being carried before the Appeal Court from another execution proceeding, a Division Bench of this Court, by an order dated 13th February, 2017 directed that the share certificates shall be handed over by the Receiver to the Registrar, Original Side of this Court who shall retain the shares till the appeals are heard. Accordingly, the share certificates were handed over to the Registrar Original Side of this Court.
There appears to be a proceeding under Sections 397/398 of the Companies Act, 1956 before the National Company Law Tribunal(NCLT), Guwahati Bench wherein the parties are same as the parties in the present appeal. NCLT, Guwahati Bench passed an order dated 27th October, 2017 directing the respondent No.1 in the said company proceedings to produce the original share certificates (bearing No.003100003120000400453012) which are being held with the Registrar, Original Side of this Court before the NCLT for resolution of certain disputes. It is recorded in the order of the learned Tribunal that physical inspection of the said share certificates is necessary to resolve the 3 disputes between the parties. Accordingly, NCLT directed its registry to request the Registry of this Court to transmit the said original share certificates to NCLT, Guwahati Bench.
The Registry of this Court informed the parties that without a direction from this Court, the original share certificates cannot be transmitted. Accordingly, an application has been made before us by the respondent No.3 for appropriate direction in the matter. We are not satisfied with the application as it has been affirmed by a person who does not appear to have authority to represent the respondent No.3/company. It appears from a letter dated 14th January, 2014 written by M/s.Khaitan & Co.,Advocate to the Registrar of Companies, Meghalaya that the gentleman who has purportedly affirmed the application on behalf of the applicant namely Pinaki Madhusudan Patel, resigned as director of the company on 11th August, 2012. Nothing could be produced before us to show that Mr.Patel was re-appointed as director subsequently. Hence, the authority of Mr.Patel to take out the application on behalf of the respondent No.3 is not clear. Accordingly, we decline to entertain the said application.
However, Mr.Nag, learned advocate appearing for the respondent No.3/applicant submits that Mr.Pinaki Madhusudan Patel is duly authorized by the company to make the instant application and he is a director of the company.
Be that as it may, there is a request from the Registrar, NCLT, Guwahati Bench to our registry to transmit the original share certificates held by the Registrar, Original Side of this Court. The said share certificates are necessary for 4 proper and effective resolution of disputes involved in the company proceedings pending before the NCLT, Guwahati.
Hence, we deem it proper to direct the Registrar, Original Side of this Court to transmit the original share certificates (bearing No.003100003120000400453012) to the registry of NCLT, Guwahati Bench. For this purpose, the respondent No.3 namely Doloo Tea Company India Ltd shall deposit necessary costs of Special Messenger with the Registrar, Original Side of this Court within 10 days from date. The Registrar, Original Side shall carry out this order within 10 days from the date of receipt of such costs.
It is made clear that none of the parties shall deal with the said shares in any manner without leave of this Court. Upon the NCLT, Guwahati Bench doing the needful with the said share certificates, the same shall be transmitted back to the Registry of this Court through Special Messenger, the costs of which will also be borne by Doloo Tea Company India Limited.
Since the appeals are pending in this Court it is desirable that the share certificates are transmitted back to the registry of this court within three months from the date of receipt of the same by the Registry of NCLT,Guwahati Bench.
Thus, G.A.No.181 of 2018 is disposed of.
(JYOTIRMAY BHATTACHARYA, ACJ.) (ARIJIT BANERJEE, J.) ssaha AR(CR)