P L D 1962 Dacca 176 (PLP)

4, Simpson Road. Dacca, 10th January 1948. Registered/A. D. No. 8/168. The Registrar of Joint Stock Companies, East Bengal, Chittagong. Sir, We have the honour to submit herewith our Annual Return drawn up to the 28th day of December 1947, the date when the Annual General Meeting of the Share‑holders was held, along with lists of Members, Directors and Managing Agents and also three copies of the Balance‑Sheet and Profit & Loss Account for the year ended 31st December 1946. The requisite filing fee of Rs. 6 (Rupees six only Rs. 3 for filing the Annual Return and Rs. 3 for filing the Balance‑Sheet) has been remitted by Postal Money Order. We have the honour to be, Sir, Your most obedient servants, For and on behalf of the Chittaranjan Cotton Mills Ltd. The Keshablal Industrial Syndicate Ltd. (Sd.) D. K. RAKSHIT, Managing Director Managing Agents." Exhs. 7, 8 and 9 are ledgers which were prepared in the office of the Registrar, Joint Stock Companies, West Bengal, under his direction and handed over to Bazlul Huq, Registrar, Joint Stock Companies, East Bengal, sometime in January 1948, as has been noticed earlier. These ledgers contain Exhs. 7‑A, 8‑A and 9‑A respectively showing entries of documents filed by the Chittaranjan Cotton Mills Ltd. beginning from 11‑12‑

29. These entries can be found at pages 341 to 344 in Exh. 7‑A and at page 405 in Exh. 8‑A and at pages 2 to 5 in Exh. 9‑A. Exh. I1 is a letter in original addressed by the Firm of B. N. Majumdar & Co. Registered Accountants, 24, Swallow Lane, Calcutta dated 7th March 1949, acting on behalf of the Company (Chittaranjan Cotton Mills Ltd.) addressed to the Registrar of the Joint Stock Companies, East Bengal, Chittagong. This was received by the Registrar, Joint Stock Companies, East Bengal on 12‑3‑

49. Paragraph 2 of the said letter is in the following terms: "(2) Notice of change of Registered office to B/5, Clive Buildings, 8, Clive Street, Calcutta, was filed with the Registrar of Joint Stock Companies, Bengal, on the 7th July 1947, but due to oversight the requisite fling fee therefore could not be paid earlier than 26‑1‑1948." This paragraph quoted from letter, Exh. 11, clearly goes to show that there was no formal and valid application filed with the Registrar, Joint Stock Companies, Undivided Bengal, by the company on the 7th July 1947, as alleged by the Accountants of the company as no requisite fee was paid along with it which, according to this letter, is shown to have been paid on 26‑1‑48, which is long after the appointed day, i.e., the 15th of August 1947. Exh. 12 is the entire record of Title Suit No. 170 of 1947, re‑numbered as Title Suit No. 88 of 1951, of the Court of 6th Subordinate Judge, Dacca. The plaintiffs in this suit were 8 in number. Plaintiff No. 2 was Debendra Kishore Rakshit, the Managing Director of the Firm of Managing Agents, (Messrs Keshab Lal Industrial Syndicate Ltd.) of the company (Chittaranjan Cotton Mills Ltd.). Plaintiff No. 8 was the company itself having its registered office and principal place of business at 4, Simpson Road, Dacca. The defendants were 8 in number, the last of whom was Dhirendra Nath Bose, that is, D. N. Bose, Managing Director of the company whose individual address as given in the plaint was 20, Wyer Street, P. S. Sutrapur, District Dacca. The defendants in that suit were described as Directors of plaintiff No.

8. The Chittaranjan Cotton Mills Ltd. 4, Simpson Road, P. S. Kotwali, District Dacca. Paragraph 14 of the Plaint reads as follows: "

14. That with a sinister motive, the defendants, wanted to remove the Registered Office of the company from the Dominion of Pakistan to the Dominion of India without the knowledge and consent of the Company a stare‑holders, most of whom are permanent residents and/or citizens of Pakistan. The defendants passed a resolution in Calcutta to trans fer its registered office from the City of Dacca to the City of Calcutta in West Bengal. But the resolution was never given " effect to " The Registered Office of the company has always been and is at 4, Simpson Road, Dacca. In all the Balance‑Sheets, letters and notices issued by the Company 4, Simpson Road, Dacca has been declared as the place of Registered Office of the Company. For the first time the defendants have written in the letter heading of a notice issued in July 1949, the Registered Office of the company to be at Calcutta. The resolution aforesaid and the action of the defendants have not the legal effect of transferring the Registered Office of the company from Dacca to Cal cutta and is wholly illegal, fraudulent, mala fide and ultra vires and as such the Registrar of Joint Stock Companies, Govern , meat of East Bengal refused to recognise the alleged transfer and by his letter to a shareholder of the company dated 17‑5‑49 declared that the Registered Office of the company is at 4, Simpson Road, Dacca. For all purposes and at all material times the Registered Office of the company has been and is situated at 4, Simpson Road,, Dacca and the plaintiffs pray for a declarati on to that effect," Prayer A of the several prayers made in the said plaint was in the following terms: "A that it may be declared that the Registered Office of the company is 1n all material times situated at 4, Simpson Road, Dacca and it may further be declared that the meeting of the Board of Directors of the Company held on 15‑8‑49 and the General Meeting of the company held on 26‑2‑49 at Calcutta which is outside the Dominion of Pakistan, are illegal, ultra vires and fraudulent and the resolutions passed in the said two meetings respectively are all illegal, ultra vires and fraudulent, void and inoperative and of no effect." It is significant to note that the joint written statement in this suit was fled by only defendants Nos. 1 to

7. Defendant No. 8, the Managing Director of the Company, Mr. D. N. Bose, did not file a written statement. Paragraph 2 of the written statement challenged the jurisdiction of the Subordinate Judge to try the suit. The same is in the following terms: "

2. That this Court has no jurisdiction to try the suit." The first issue framed in that suit was to the following effect: "Is the registered office of the company situated at Dacca ? 1f not, has this Court any Jurisdiction to try this suit." On 19‑2‑52 a compromise petition was filed in the suit on terms, the first two of which are as follows: (i) That the issue No. 4 shall be decreed in favour of the plaintiffs subject to the provisions of the Articles of Associ ation of the Chittaranjan Cotton Mills Ltd. Plaintiff No. 8, or the Managing Agency Agreement between the plaintiff No. 8 Company and the Syndicate or the provisions of the Company Law. (ii) That the plaintiffs' prayer in respect of issue No. 1 is dismissed." Dismissal of issue No. 1 in that suit by way of compromise does not amount to an application of the judicial mind of the Court in finding as to the domicile of the Company or as to whether the Court had jurisdiction to try the suit. The decree passed by the Court in respect of issue No. 4 on compromise, on the other hand, goes to show that the defendants subjected themselves to the jurisdiction of the Dacca Court in passing a decree in the suit. That goes to show that although in the terms of compromise it was mentioned that issue No. 1 regard ing jurisdiction should be dismissed, yet the Court had jurisdic tion to try the suit, and the Court could not have the jurisdiction to try the suit, or pass any decree therein unless the re gistered office of the company was within the jurisdiction of the Court. Exhibit 13 is a certified copy of the confessional statement of Amrita Lal Bhowmick made in the Martial Law Case. But since the said confessional statement has not been proved in 'terms of the Evidence Act. I refrain from taking that into consideration or dealing with its merits in any manner whatever. Exhibit 15 series are documents marked together filed by the Chittaranjan Cotton Mills Ltd. with the Registrar, Joint Stock Companies, Undivided, Bengal, which were handed over to Mr. Bazlul Huq, the Assistant Registrar, Joint Stock Companies, Undivided Bengal and the Registrar, Joint Stock companies East Bengal from the 15th of August 1947, by the Registrar, Joint Stock Companies, West Bengal treating the company (Chittaranjan Cotton Mills Ltd.) as a Pakistani Company on the basis that the company had not shifted its registered office to India prior to the appointed day. Exhibit 16 series are different documents and correspondence that passed between the company and the Registrar, Joint Stock Companies, East Bengal, specific reference to which are not necessary to arrive at a finding of the issues relevant for the purpose. From a consideration of the evidence on record particularly Exhibits 4 to 4‑F, 6 to 6‑C, 7, 7‑‑A, 8, 8‑A, 9, 9‑A, 12 and 15 series and the evidence of Mr. Bazlul Haq, Registrar, Joint Stock Companies, East Pakistan (now retired) who was also the Assistant Registrar of Joint Stock Companies, Undivided Bengal up to the appointed day, the conclusion becomes irresis tible that the company did not, prior to the appointed day, shift its office from the territories falling within Pakistan to the territories falling within India, nor any steps were taken prior to the appointed day by the company to shift its registered office as claimed by it on the basis of the memo. Exhibit 16 (c) and the letter of the Chartered Accountant, Exhibit 11. 1 have no doubt in my mind that the memo. Exhibit 16 (c) has been manufactured for the purpose at the instance of some of the Directors of the company, and the letter of the Chartered Accountants, Exhibit 11, was written to make out a case in support of the Company transferring the registered office. The letter of the Registrar of Joint Stock Companies, West Bengal, Exhibit 16 (6), clearly goes to show that he had nothing on record in his office which would go to prove that the company had transferred its registered office to India prior to the 15th of August 1947 and/or that such a transfer was recorded or registered in his office. The supposed filing of the resolution (for which no evidence had been produced before me to show that the same was duly proposed and adopted as the original Minute Book has not been produced by the company either before me or during the hearing of the writ petitions already referred to) cannot also be accepted to have been filed. Further no conceivable reason can be found for the Registrar, Joint Stock Companies, West Bengal, to have handed over the records of the company and the Ledgers which were copied in his office, to Mr. Bazlul Huq, treating the company as Pakistani company if there was any evidence available in his office showing transfer of the Registered Office of the company from Dacca to ‑Calcutta. It is inconceivable that an old and established company having advisers would make a silly mistake of not putting in the requisite filing fee along with the resolution which was so vital for them. I, therefore, hold that no resolution was filed with the Registrar, Joint Stock Companies, West Bengal, by the company prior to the appointed day witnessing the transfer of its registered office to Calcutta. The Managing Agents of the Company, Messrs Keshab Lal Industrial Syndicate Ltd., who have been managing the company since its inception, had no reason not to know the transference of the registered office of the company from Dacca to Calcutta prior to the 15th of August 1947. That the registered office was not transferred from Dacca to Calcutta is further clear from the actions of the Managing Agents, that is, tiling of Exhibit 4 to 6 (c) under the signature of its Managing Director with the Registrar, Joint Stock Companies, East Bengal, after the 15th of August 1947. Added to this, if we take into consideration the records of Title Suit No. 170 of 1947 and re‑numbered as T. S. 88/51 (Exhibit 12), it will be further clear that the Managing Agents and the company itself knew that the registered office had not been transferred. Section 72 of the Companies Act which occurs in Part IV of the Act under the heading Management and Administration is in the following terms: "72. (1) .A company shall as from the day on which it begins to carry on business, or as from the twenty‑eight days after the date of its incorporation, which ever is the earlier, have a registered office to which all communications and notices may be addressed. (2) Notice of the situation of the registered office of any change therein shall be given within twenty‑eight days after the date of the incorporation of the company or of the change, as the case may be, to the Registrar who shall record the same. (3) The inclusion in the annual return of a company of the statement as to the address of its registered office shall not be taken to satisfy the obligation imposed by this section. (4) If a company carries on business without complying with the requirements of this section, it shall be liable to a fine not exceeding fifty Rupees for every day during which it so carries on business." From the above provision of section 72, it will be observed that the situation of the registered office of a company and the change thereof is not a matter of ordinary consequence or a matter of pleasure of the Directors. This section makes it obligatory upon the company to give notice of the situation of the registered office or of any change thereof, as the case may be, to the Registrar of Joint Stock Companies within 28 days of such situation or change and it has been made obligatory upon the Registrar by the Statute to record such charge. This is because the company must have a notified permanent address to establish its domicile for the purpose of ascertaining the jurisdiction of the Court as provided for in section 3 of the Act. That the situation or change of address of the company is not a matter of ordinary consequence or a matter of pleasure for the Directors becomes more pleat if we look into the provisions of section 12 of the Act. In the very beginning of the Memorandum of Association of a company the situation of its registered office has to be mentioned in a separate article and once the Memorandum of Association is filed with the Registrar of Joint Stock Companies and the company is incorporated, no change can be made in the situation of its registered office without sanction of the High Court (subsection (2) of section 12) which has jurisdiction over the company in terms of section 3 of the Act. Subsection (3) of section 72 clearly lays down that the notice of change or situation of the registered office cannot be made by any collateral documents. In the light of the provisions of sections 72 and 12 of the Companies Act if the Exhibits 4 to 6 (c) are again considered, it becomes further clear that there was no change in the registered office of the company from Dacca to Calcutta. I, therefore, unhesitatingly hold that the registered office of the company (Chittaranjan Cotton Mills Ltd.) was not transferred from Dacca to Calcutta prior to the 15th of August 1947. It could not be so done after that date. Once it is found that the registered office of the company is situated within the territories in which this Court exercises jurisdiction under the Companies Act, there is no difficulty to hold that this Court has jurisdiction to try the present application filed under section 38 of the Act. A point has been raised as to whether in an application under section 38 of the Companies Act, the Court can decide the question of jurisdiction under the general powers given to the Court under subsection (3) of the said section. Decision of the question of jurisdiction of the Court is a sine qua non in arriving at a decision on an application under section 38 of the Companies Act. Subsection (3) of section 38 lays down that the Court may generally decide any question necessary or expedient to be decided for rectification of the register. This, in my view, not only gives ample power to the Court but also makes it obligatory upon it, first, to decide the question of domicile of the company, specially in a case where the question of domicile has been particularly raised in relation to the jurisdiction of the Court in deciding an application under section

38. In view of any earlier finding that the company's registered office had not been shifted from Dacca to Calcutta I hold that this Court has jurisdiction to try the present application made under section 38 of the Companies Act. As to the merits of the application, it is found that the transfer of the shares made in favour of the petitioner by Mr. Arifur Rahman Choudhury and Miss Hasina Banu suffer from no legal defects. It has been amply proved by evidence led in this proceeding that the Transfer Deeds (Exhibits 1‑A and 2‑A) were duly signed by the transferors and that the consideration did pass for the transfer. In that view of the matter, the transferee petitioner is entitled to ask for an order from this Court for rectification of the Share Register of the company by its management. The only point that has to be considered prior to the issue of such a direction is as to whether, in the absence of the origi nal share register, the present management of the company can be directed to rectify the same. It has been established by evidence before me that the original share register is lying in Calcutta in the custody of the Directors, some of whom were convicted by the Martial Law Court, and that there is no chance of the same being brought to Pakistan. The petitioner has produced in Court a certified copy of the share register (Exhibit 3) which goes to show that the transferors of the shares in question have been registered as share‑holders of the company under serial Nos. 10271 and 10067 respectively. Mr. Brohi appearing for the Company has conceded that, although it is not possible for his client to rectify the register of the company upon a direction by this Court at the present moment in view of the fact that the original register is not available, yet there will be no difficulty for his client to note the transfer of the shares in favour of the petitioner and to rectify the register either after obtaining the original one from Calcutta or after reconstructing the share register according to law. In the result, therefore, I allow this application and direct that the company do take notice of the transfer of the share Nos. 277045 to 277069 and 270237 to 2702ol in favour of peti tioner and rectify the share register of the company by replac ing the name of the original share‑holders by the name of the petitioner either when the original share register is available to the company or after reconstruction of the same. The petitioner is entitled to the costs of this petition from the company and I certify the same for one counsel. K. B. A. Application allowed.