Calcutta High Court (Appellete Side)
Somnath Chatterjee & Anr vs Sharmila Shetty on 27 March, 2019
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
1 304 27.03.2019
CO 1304 of 2018 AN Ct. No. 14 Somnath Chatterjee & anr.
-vs.-
Sharmila Shetty Mr. Ratnanko Banerjee, ld. Sr. Adv.
Mr. Anirudha Roy Mr. Ratnesh Raj Mr. Anujoy Basu Mr. Srinjoy Bhattacharya ... for the petitioner Mr. Sakhya Sen Mr. Ishaan Saha Mr. Joydeep Mukhopadhyay ... for the opposite party The revisionist is aggrieved by an order No. 37 dated 17.03.2017 passed in T. S. No. 306/2014 by the learned 5th Bench, City Civil Court, Calcutta.
By the impugned order, the learned court below had rejected the application under Order VII Rule 10 of the Code filed by the defendant in the suit who is the revisionist before this court.
The revisionist would argue on the absence of territorial jurisdiction of the City Civil Court, Calcutta in the context of Section 94 of the Companies Act, 2013 which had a corresponding cousin in Section 163 of the Companies Act, 1956.
Section 94 of the 2013 Act is set out hereinunder:
"94. Place of keeping and inspection of registers, returns, etc. - (1) The registers required to be kept and maintained by a company under Section 88 and copies of the annual return filed under Section 92 shall be kept at the registered office of the company:
Provided that such registers or copies of return may also be kept at any other place in India in which more than one-tenth of the total number of members entered in the register of members reside, if approved by a special resolution passed at a general meeting of the company and the Registrar has been given a copy of the proposed special resolution in advance:2
Provided further that the period for which the registers, returns and records are required to be kept shall be such as may be prescribed.
(2) The registers and their indices, except when they are closed under the provisions of this Act, and the copies of the all returns shall be open for inspection by any member, debenture-holder, other security-holder or beneficial owner, during business hours without payment of any fees and by any other person on payment of such fees as may be prescribed.
(3) Any such member, debenture-holder, other security- holder or beneficial owner or any other person may-
(a) take extracts from any register, or index or return without payment of any fees; or
(b) require a copy of any such register or entries therein or return on payment of such fees as may be prescribed.
(4) If any inspection or the making of any extract or copy required under this Section is refused, the company and every officer of the company who is in default shall be liable, for each such default, to a penalty of one thousand rupees for every day subject to a maximum of one lakh rupees during which the refusal or default continues.
(5) The Central Government may also, by order, direct an immediate inspection of the document, or direct that the extract required shall forthwith be allowed to be taken by the person requiring it."
The only difference, relevant to this case, between Section 94 of the 2013 Act and Section 163 of the 1956 Act is contained in the proviso. The proviso empowers a company to maintain its registers and other documents which are normally required to be kept at the citus of the company i.e. its registered office, at any other place within the same city (under the 1956 Act) or anywhere in India (under the 2013 Act) if it is authorized as such by a resolution of the Board of Directors. There are other requirements also to be complied with in this regard.
Paragraph 21 of the plaint is set out hereinbelow:
"the records, books and registers of the defendant No. 2 are presently lying and traditionally has been lying in its principal and corporate office at 113, Park Street, 9th Floor, Police Station - Park 3 Street, Kolkata-700 016. The fraud, forgery and manipulation by which the defendant No. 1 has purported to show himself as holder of the 242430 shares and has since been wrongly claiming to exercise voting rights thereon have taken place at such office of the defendant No. 2."
It, therefore, appears to this court that there is a pleading available as regards as to why the shares in question have been kept at the Corporate Office of the Company at Calcutta.
The principles to be applied while dealing with an application under Order VII Rule 10 and 11 of the Code now well settled by the Hon'ble Supreme Court. The statements made in the plaint must be taken to be true and correct.
There is, therefore, a presumption, under the principles applicable to Order VII Rule 10 and 11 of the Code that there is a resolution of the company as required under the proviso of the Sections 94 (of the 2013 Act) and 163 (of the 1956 Act).
Such presumption is however rebuttable and the same can only happen in course of trial of the suit either on a preliminary issue or otherwise.
The other findings arrived at for the purpose of retaining the suit in the City Civil Court, Calcutta are not interfered with by this court as the reasons therefor appear to be sound.
The learned counsel appearing on behalf of the revisionist would place before this court Section 430 of the Companies Act, 2013 which bars a civil court from entertaining any suit in respect of any cause of action under the Companies Act, 2013. There are prayers in the suit seeking rectification of the Register of shares of the company. 4
Since the issue has not been urged in the learned court below, this court does not wish to address same and it shall be open to the revisionist to urge such contention in the learned court below.
This court does not wish to interfere with the impugned order and the revisional application is disposed of without any order.
There will be no order as to costs.
Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Rajasekhar Mantha, J.)