TaxTMI 
TaxTMI 
TaxTMI 
2016 (10) TMI 370
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....ansfer forms duly signed by the transferor were dispatched by the brokers to the appellant at Mumbai on 23.01.1995 under the airway bill No.603032720, through courier service namely, M/s. Elbee Services Ltd. As per the case of the appellant, before the receipt of the delivery of the said shares with the duly signed transfer forms by the appellant, the same were lost in transit from the head office of Elbee Services Ltd., Mumbai. Accordingly M/s. Elbee Services Ltd. has also lodged complaint with the police on 31.01.1995 and intimated about the same to the appellant. The appellant by its letters dated 08.02.1995 and 28.02.1995 informed about the loss of the said shares to respondent No.1 company and respondent No.2 and requested them to issue duplicate share certificate after completing the requisite formalities. The appellant also requested them to stop the transfer of the said shares. As there was absolutely no response from respondent No.1 or respondent No.2, the appellant, through its Advocate, issued a further letter dated 23.03.1995 requesting them to refrain from transferring the said shares in favour of any third person, except the appellant. Respondent No.2 has taken the c....
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....documents were got exhibited and marked. Respondent Nos.1 and 2 did not lead any oral or documentary evidence. Respondent Nos.3 to 28, except for respondent No.7 did not even appear and the suit has proceeded ex parte against them. Respondent No.7 also did not file any written statement or adduced evidence. 7. On the basis of the evidence produced on record and relying upon the Judgment of the Apex Court, in the case of Shripal Jain (supra), the Trial Court was pleased to hold that Civil Court has no jurisdiction over the subject matter of the suit to entertain and try the same, in view of the provisions of Section 84 of the Companies Act. A specific finding was recorded to that effect to issue No.1. The Trial Court however proceeded further to decide issue Nos.3 and 4 which pertain to the relief of declaration as sought by the appellant, of being the absolute owner of the disputed shares and also the direction to respondent No.1 to issue duplicate share certificate. The Trial Court considered the evidence adduced on record by the appellant herein and came to conclusion that the appellant has failed to prove the documents like, the bill No.7797 dated 20.01.1995 and also the origi....
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....posed of at this stage itself, instead of proceeding with the hearing of the same and ultimately coming to the conclusion that the Civil Court has no jurisdiction to decide the same. 10. Learned counsel for respondent No.1 has, however strongly resisted this submission. According to him, this prayer is made by the appellant herein, only after an adverse finding on all the issues are recorded by the Trial Court against the appellant. Further, learned counsel for respondent No.1 has submitted that, so far as the jurisdiction of the Civil Court is concerned, it was ousted only in respect of the issuance of duplicate share certificate, which can only be issued by the Company Registrar under Section 84 of the Companies Act. However, as regards the relief of declaration, which the appellant is claiming in the instant suit that the appellant is the absolute owner of the shares, Civil Court alone can grant such declaration and, therefore, the jurisdiction of the Trial Court was not barred in respect of this issue. It is submitted by learned counsel for respondent No.1, that whether the finding arrived at by the Trial Court on this issue of declaration relating to ownership of the shares i....
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....m the competent Court. Thus, only when respondent No.2- the Registrar refused to issue the duplicate certificate without the order from the competent Court, the appellant was constrained to approach the Trial Court, to get the relief of necessary declaration and direction. 14. It is pertinent to note that, according to respondent Nos.1 and 2 also, the competent authority to issue the duplicate share certificate was the Registrar in view of Section 84 of the Companies Act. A specific plea to that effect was raised in para 3 of the written statement filed before the Trial Court in which it was stated that, "the plaintiff has filed the suit for ownership declaration of 2200 shares and seeking direction against these defendants for issuing duplicate shares in their favour. It is submitted that the suit is covered under Section 84 of the Companies Act and under this section the Civil Court has no power to grant any relief as per the Judgment of the Hon'ble Supreme Court of India in the case titled as Shripal Jain (supra)." It was further stated that, "in view of this Judgment, the suit is not maintainable and accordingly the appellant is not entitled for any relief as prayed in the....
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....uiry and for that purpose even to collect the evidence, vide investigation and the expenses for the same will be borne out by the concerned party and only after inquiry, the Registrar may renew the certificate or issue the duplicate thereof. Thus, a specific jurisdiction is conferred on the Registrar of the Companies in respect of the issuance of duplicate certificate, whenever the original certificate is lost or destroyed. 18. In the instant case, the very case of the appellant is that the shares purchased by the appellant came to be lost in transit. Therefore, it follows that, under Section 84 (4) of the Companies Act, the Registrar of the Companies will have the jurisdiction to issue the duplicate share certificate, after making necessary inquiry, in which he can even investigate and collect the evidence. The Trial Court has also, accordingly, come to that conclusion, especially, placing reliance on the decision of Hon'ble Supreme Court in the case of Shripal Jain (supra). 19. The facts of the present case, as submitted by learned counsel for the appellant, squarely fall within the four corners of the law, as laid down by the Apex Court in this decision. In the said decisi....
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.... was in patent error in referring the appellant to obtain the order from the Competent Court, though he could have himself held the inquiry into the matter under Section 84(4) of the Companies Act read with the Companies (Issue of Share Certificates) Rules, 1960 and taken a decision himself. Therefore, as was done by the Apex Court in the above case, in this case also, it is necessary to remand the case back to the Registrar by giving liberty to the appellant to approach the Registrar. 23. Needless to state that the Registrar cannot issue the duplicate share certificate even after being satisfied on due enquiry, as a result of the adverse finding recorded by the Trial Court on issues relating to ownership of appellant over those shares. As the Trial Court has recorded that finding despite holding that it has no jurisdiction to issue duplicate certificate, it becomes necessary to set aside the impugned Judgment and order of the Trial Court and dispose of the appeal at this stage itself, instead of allowing the appeal to remain pending on admission. 24. The submission advanced by the learned counsel for respondent No.1 is that, the relief of declaration of ownership and title over....
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.... absolutely no substance in the contention of the learned counsel for respondent No.1 that as the relief of declaration could have been given only by the Civil Court, findings recorded by the Civil Court on these issues are binding, unless they are set aside by this Court after admitting the appeal and these findings cannot be set aside at the stage of admission. 26. It is pertinent to note that in para 3 of the written statement the respondents have challenged the maintainability of the suit, on this very count that Civil Court has no jurisdiction under Section 84 of the Companies Act. Even the perusal of the impugned Judgment and order passed by the Trial Court, especially, para 16 reveals that the Trial Court has also considered this aspect by observing as follows: "16. The plaintiff has filed the present suit for issuance of direction to defendants No.1 and 2 to issue duplicate share certificates in respect of the suit shares. In Shripal Jain's case (cited supra), the Hon'ble Supreme Court has held that the civil court is not the proper forum to grant such relief and the plaintiff must approach the Registrar of the Company for issuance of duplicate share certificates ....
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.... of the Apex Court Judgment that the Registrar is alone having jurisdiction to issue duplicate share certificate and, therefore, once the Civil Court has no jurisdiction to do so, even if I decide the appeal and ultimately hold in favour of the appellant that the appellant is having title and ownership over the said shares, respondent Nos.1 and 2 are bound to challenge the said decision on the count that if the Trial Court has no jurisdiction, this Court was also not having the jurisdiction to record such finding in the appeal. Therefore, it is going to be an entirely futile and infructuous exercise in allowing the appeal to languish after admission, till its final hearing, especially, when the cause of action for the suit has arisen in the year 1995 and already it is more than 20 years. When the legal position is crystal clear and learned counsel for the appellant has, relying upon these provisions under Section 84 of the Companies Act and the law laid down in this authority of Shripal Jain (supra) has fairly conceded that the appellant may be given liberty to approach the Registrar instead of prosecuting this appeal, there is no point in proceeding with this appeal merely for ac....