MANU/MP/0375/2011

Equivalent Citation: ILR[2011]MP2191, 2011(4)MPHT364

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

First Appeal No. 109/1996
Decided On: 11.05.2011
Appellants: Kamalkant Goyal and Ors.
Vs.
Respondent: Lupin Laboratories Limited
Hon'ble Judges/Coram:
A.K. Shrivastava, J.
Case Note:
Company - Suit for declaration - Suit dismissed by lower Court - Hence,
impugned order under challenge in present appeal under Section 96 of Civil
Procedure Code, 1908 - Held, in present case, looking to plaint averments
and relief claimed by Plaintiffs, Plaintiffs' share certificates have been lost
and therefore, it had been prayed that duplicate share certificates be issued
to them and their lost share certificates may not be transferred to any other
person - Since, Plaintiffs were having an efficacious remedy to file
necessary application before Registrar of Company under Section 84 of
Companies Act, relief claimed in plaint could not be granted to Plaintiffs -
Appeal dismissed.
JUDGMENT
A.K. Shrivastava, J.
1. This appeal has been filed under Section 96 of the Code of Civil Procedure, 1908
by the Plaintiffs whose suit has been dismissed at the threshold by learned Trial
Court.
2. A civil suit has been filed by the Plaintiffs that Plaintiff No. 1 Kamalkant Goyal got
100 shares of M/s Lupin Laboratories Limited, a company registered under the Indian
Companies Act, 1956 (hereinafter referred to as 'the Companies Act') on 15-9-1995.
Similarly, Plaintiff Nos. 2, 3 and 4 namely Sanjay Goyal, Smt. Kasturi Bai and Smt,
Usha Goyal respectively also purchased 100 shares each of the said Company. On 28-
1-1996, a bag containing all the share certificates of the Plaintiff along with transfer
deeds were misplaced and lost and despite due efforts took by the Plaintiffs, they
could not be searched. Hence, a suit has been filed by the Plaintiffs to declare that
Defendant should not transfer the share certificates of Plaintiffs to any other person
and also to issue duplicate share certificates. A decree of injunction has also been
sought that Defendant should not transfer the share certificates of the Plaintiffs.
3. The learned Trial Court after considering the various provisions of the Companies
Act came to hold that Civil Court is not having any jurisdiction and hence dismissed
the suit.
4. In this manner, this first appeal has been filed by the Plaintiffs.

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 5 . I have heard learned Counsel for the Plaintiffs/Appellants. Shri Rohit Mangal,
Advocate has appeared on behalf of interveners namely Flora Securities and Girdhar
Parashar. The contention of learned Counsel for the Appellants is that by taking aid of
Section 111 of the Companies Act, the learned Trial Court dismissed the suit of the
Plaintiffs but the said provision is not applicable in the present case because it relates
to power to refuse registration and appeal against refusal and hence it has been put
forth by learned Counsel that by misconstruing Section 111 of the Companies Act, the
learned Trial Court has erred in dismissing the suit.
6 . None has appeared on behalf of the Respondent though served. Shri Mangal has
appeared for the interveners. Although Intervention Application I.A. No. 5393/96 has
not been allowed but learned Counsel has invited my attention to the legal
proposition and submitted that the civil suit as framed and filed by the Plaintiffs is
not maintainable in view of the decision of the Supreme Court in Shripal Jain v.
Torrent Pharmaceuticals Ltd. : 1995 Supp (4) SCC 590.
7. Having heard learned Counsel for the Plaintiffs/Appellants and also considering the
plaint averments and the relief claimed in it and also after hearing learned Counsel
appearing for the interveners, I am of the view that this appeal deserves to be
dismissed.
8 . Although initially I was going to remand the matter to the learned Trial Court to
decide this point if any objection in this regard is submitted by the Defendant or any
intervention application made before that Court because the suit has been dismissed
at its threshold even without issuing summon to the Defendant, but looking to the
dictum of the Supreme Court in the decision of Shripal Jain (supra), since it has been
held in it that the subject matter of issuance of duplicate share certificates on account
of loss of original ones, Civil Court is not a Competent Court but Registrar under the
Companies Act should have held an enquiry in that regard under Section 84(4) read
with Companies (Issue of Share Certificates) Rules, 1960 (hereinafter referred to as
'the Rules of 1960') and to pass necessary orders. Although the approach of learned
Trial Court by applying Section 111 of the Companies Act was wrong but the suit has
been rightly dismissed. Indeed, in the present case, Section 84(4) of the Companies
Act and the Rules of 1960 are applicable which speaks about the certificate of shares.
In the case of Shripal Jain (supra), also the share certificates were stolen. Eventually
the Appellant of that case approached the Registrar for issuance of duplicate
certificates, however, the Registrar directed the Appellant to have a direction in this
respect from the Civil Court as a result of which a civil suit was filed, but, the Civil
Court did not allow the relief and the revision which was filed before the High Court
was also dismissed in limine. The Appellant of that case approached the Apex Court
wherein the Apex Court specifically held that the Registrar of Company was in patent
error in referring the Appellant to the Civil Court by further holding that Registrar
should have himself held an enquiry in the matter under Section 84(4) of the
Companies Act read with Rules of 1960 to take decision in the matter. The Supreme
Court ultimately set aside the order of the High Court passed in revision as well as of
the Civil Court and remanded the case back to the Registrar to decide the matter in
accordance with law.
9 . Indeed, in the present case also/looking to the plaint averments and the relief
claimed by the Plaintiffs, which is akin to that of the case of Shripal Jain (supra), it is
gathered that in the present case also the Plaintiffs' share certificates have been lost
and therefore, it has been prayed that duplicate share certificates be issued to them
and their lost share certificates may not be transferred to any other person. Thus,

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 according to me, the Civil Court is not having any jurisdiction to try such type of suit.
10. Apart from what I have held hereinabove, it would be condign to go through the
relief clause of the plaint again. Although suit for declaration has been filed, but
indeed, the suit is for mandatory injunction to issue duplicate share certificates and a
prohibitory injunction that lost share certificates should not be transferred to any
other person. According to me, such type of injunction should be refused by the
Court in view of Section 41(h) of the Specific Relief Act, 1963, which speaks that
injunction be refused when equally efficacious relief can certainly be obtained by any
other usual mode of proceeding except in case of breach of trust. Since, the Plaintiffs
are having an efficacious remedy to file necessary application before the Registrar of
Company under Section 84 of the Companies Act, therefore, for this additional
ground also, the relief claimed in the plaint cannot be granted to the Plaintiffs.
11. For the reasons stated hereinabove, this appeal fails and is hereby dismissed
with no order as to costs.

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