Gulabrai Kalidas Naik And Ors. vs Laxmidas Lallubhai Patel Of Baroda And ... on 6 May, 1977
22. Now, as against these decisions, Mr. B. R. Shah, learned advocate, drew my attention to Matheran Steam Tramway Co. v. B. N. Lang [1931] 1 Comp Cas 206 (Bom). A petition for rectification of register was made which was accepted by Taraporewala J. In an appeal against the decision granting rectification of register, Marten C.J., speaking for the Division Bench, while negativing the contention that a petition involving complicated questions should not be entertained under section 38 of the Indian Companies Act, 1913, observed that at the most it is a matter of decoration for the court whether in any particular case it will hear the petition or leave the parties to a separate suit. It was further observed that an express issue on this point was raised and as the learned single judge exercised his discretion by deciding to hear the petition, no case was made out to overrule him and force the parties to begin de novo. A submission that suit would involve long-protracted and expensive litigation was also taken into consideration, while negativing contention for directing the party to a suit. In a concurring judgment Kemp J. first referred to the relevant considerations that in England an application for rectification may be made by motion or by originating summons and, in such a proceeding, making an order under section 116 is in the discretion of the court and where there is conflict of evidence the order may be refused without prejudice to the applicant's right to bring an action for rectification. It was then observed that in the case before the court there was no conflict of evidence.