C.P. No. 845(111)/KB/2008. Case: Sutodiya Investments & Trading Co. Ltd. Vs Tivoli Park Apartments (P.) Ltd. and Another. Company Law Board
|C.P. No. 845(111)/KB/2008
|For Appellant: D. Basak, Debajyoti Dutta and Amit Kr. Raidani and For Respondents: Ms. Sulagna Dawn, Jishnu Saha, Rajratna Sen, Ashish Kr. Mukherjee and Sandip Agarwal
|B.S.V. Prakash Kumar, Member (Judicial)
|Companies Act, 1956 - Sections 111, 111(4); Indian Contract Act, 1872 - Section 25
|2012 (111) CLA 471
|March 16, 2012
|Company Law Board
B.S.V. Prakash Kumar, Member (Judicial), (Kolkata Bench)
Second respondents filed an application seeking for dismissal of this company petition filed by the petitioner seeking rectification of the share register of R-1-company. The case of the petitioner is that the petitioner received a letter dated 7th August 2007 from 1st respondent stating that 2,500 shares being distinctive numbers 12023 to 12522 and 12523 to 14522 belonging to the petitioner were transferred on 1st August, 2007 to second respondent on being instrument of transfer and other documents placed by second respondent. To which, the petitioner-company filed this CP stating that it has never sold its shares to second respondent, thereby whatever documents filed by second respondent for registration of its name in the place of the petitioner is fabricated, forged and without consideration, hence, sought for rectification.
Whereas the case of second respondent is one Pradeep Kumar Kayan, one of the directors of the petitioner, signed the transfer form on behalf of the petitioner, also raised invoice for the same, in view of the same, second respondent says that the case of the petitioner is false, hence, sought for dismissal of same.
The petitioner, in its rejoinder, categorically denied the defense of second respondent saying said Pradeep Kumar Kayan never signed upon the transfer form or invoice shown by second respondent.
On seeing categorical denial of the petitioner, second respondent filed an application of interrogatories against Pradeep Kumar Kayan to know as to whether he signed upon the transfer form and the sale invoice. Having this Bench allowed the said application; he filed an affidavit before this Bench stating that he signed upon the transfer form and invoice as a director of the petitioner at request of one Santh Kumar Sutodiya, who is director of the petitioner-company and person filed affidavit on behalf of petitioner-company. On seeing Kayan filed affidavit saying he signed upon the documents, the petitioner has come up with CA No. 166/2011 to cross-examine Pradeep Kumar Kayan, the same is still pending before this Bench.
While case stands in this position, second respondent filed this CA No. 245/2011 seeking dismissal of this case, on the ground this case deserves to be tried by civil court for this is involved with complicated facts.
Second respondent counsel Mr. Jishnu Saha argued that the petitioner saying second respondent forged the signature of the petitioner-director is false, as second respondent placed documents showing the transfer is valid under the provisions of Companies Act, 1956 ('the Act') and articles of association and it is not a forgery as contended by the petitioner. In this factual situation, the counsel of second respondent submits it is hardly possible to decide this issue in a summary manner unless and until the issue between the parties is tried by civil court.
The respondent counsel relied upon following para from National Insurance Co. Ltd. v. Glaxo India Ltd.  34 CLA 30 (Bom.)/AIR 1999 Bom. 240 to say that dispute will go to civil court as and when fraud is an issue and when the same could not be decided on the material placed by both sides.
It is, therefore, now clear from the judgment of the Apex Court in A S Corporation (P.) Ltd. (supra), the Apex Court has held that insofar as the matters of rectification are concerned, it is the Company Court alone...
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