TMI Blog1955 (1) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... lder in respect of the 2000 shares, but the company refused to enter his name on arbitrary grounds. A counter affidavit is filed on behalf of the Rupak Limited. Tae contention pat forward on behalf of the company is that the title to the shares is the subject-matter of dispute between the parties in the court of the Subordinate Judge, Patna, and the question cannot be decided in a summary way by this Court acting under Section 38 of the Companies Act. Reference was made to the resolution of the company dated 26-2-1951, from which it appears that the company agreed that a sum of ₹ 1,00,000/- would be paid to Sri Devakumar Mishra, his lather Ramdahin Mishra and his wife Shrimati Ramsundari Devi in lieu of the shares which they held a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght a suit for accounts against Sri Devakumar Mishra, and in the written statement filed in that suit the petitioner asserted that the resolution dated 26th of February, 1951 was valid and enforceable. Counsel also pointed out that in the statutory notice to the company given before the winding up petition the petitioner had claimed that he was creditor of the company for a sum of ₹ 2,50,000/-in addition to the sum of ₹ 1,08,000/- which was the consideration for the transfer of the shares and also a sum of ₹ 8,000/- which was the consideration promised by the company for giving up his connection with the company. The company had also filed Title Suit No. 109 in the court of the Subordinate Judge and one of the relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided in these summary proceedings, and it must be left to the parties to agitate these questions in the suits which have already been instituted and to obtain a finding from the civil court whether the resolution of the company dated 26-2-1951 is valid and intra vires and whether there can be a valid transfer of shares in pursuance of that resolution. I do not propose at this stage to express any opinion on the merits of the questions in controversy between the parties, but it is clear that there are serious matters in dispute, and the proper course in such a case is for the petitioner to get the questions determined in the civil suit and not in summary way in these proceedings under Section 38 of the Companies Act, The principle appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd if there is some question in dispute requiring investigation, the practice of the Court is for the Judge not to make an order for rectification but to make an order dismissing the summons or motion and leaving it open to the applicant to bring an action. A similar view has been expressed by the Chancery Court in 'In re, Ruby Consolidated Mining Co.', (1874) 9 Ch A 664 (C). The same legal principle has been applied by the Indian Courts -- see -- 'Ramesh Chandra v. Jogilal Mohan', AIR 1920 Cal 789 (D) and -- 'Mohideen Pichai v. Tinnevelly Mills Co. Ltd.', AIR 1928 Mad 571 (E). 3. For these reasons, I hold that the application filed by Sri Devakumar Mishra under Section 38 of the Companies Act should be dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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