Civil Suit No. 18 of 2015 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.206 OF 2022 In the matter of an Appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned Additional District Judge, Bonai in RFA No.25 of 2015 confirming the judgment and decree passed by the learned Civil Judge (Senior Division), Bonai in Civil Suit No.18 of 2015. ---- Rajashree Devi :::: Appellant. -versus- Bonai Industrial Company Ltd. & Others :::: Respondents. Appeared in this case by Hybrid Arrangement (virtual/physical mode) ============================================ For Appellant :::: Mr.N.K. Sahu, Advocate & Associates. For Respondents :::: Mr. Sanjit Mohanty, Sr. Advocate, (Resp.Nos.1 & 9). :::: Mr. I.A. Acharya, Advocate, (Resp. Nos.2 to 7). :::: Mr. S.K. Mishra, Advocate, (Resp. No.13). :::: Mr. S. Pattnaik, Addl.Govt.Adv.(Resp.Nos.12& 14). :::: Mr. S. K. Samantaray, Advocate, (Resp.Nos.28 & 31). :::: Mr. S. K. Dash, Advocate, (Resp. No. 38). CORAM: MR. JUSTICE D.DASH DATE OF HEARING:: 19.01.2023, DATE OF JUDGMENT::15.02.2023 D.Dash, J. The Appellant by filing this Appeal under Section-100 of the Code of Civil Procedure 1908 (for short, ‘the Code’) has assailed the Page 1 of 51 // 2 // judgment and decree passed by the learned Additional District Judge, Bonai in RFA No.25 of 2015. By the same, the Appeal filed these present Appellant as the unsuccessful Plaintiff in Civil Suit No.18 of 2015 of the Court of learned Civil Judge (Senior Division), Bonai under Section-96 of the Code has been dismissed; and thereby the order dated 23.07.2015 passed by the Trial Court in rejecting the plaint filed by the present Appellant as the Plaintiff, pressing into service the provisions contained in Order-7 Rule -11 of the Code has been confirmed. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 3. Plaintiff’s case is that prior to its merger with the Union of India in pursuance of the agreement dated 14.11.1947, the title over all the properties, including the mineral resources of the Ex-State of Bonai was exclusively resting with the Ruler (Raja) of the State. The Ex-State of Bonai was having its own codified laws and orders of the Ruler were too taken and accepted as the law of the land. It is stated that Late Dharanidhar Indra Deo was the Ruler of Bonai State before its merger with the Union of India in the year 1947. Much prior to the merger; on 06.04.2019, a Company Limited by sharing had been formed and registered under the Indian Companies Page 2 of 51 // 3 // Act, 1913, under the name and style as “Bonai Industrial Company Limited” (Defendant No.1), having Registration Number:- 15/000246/1939-40. This was with the permission with the then Ruler (Raja) and with the active participation of Late Kumar Harishchandra Deo, the then Prince (Rajkumar) of Bonai. Functions of the said Company was to explore and prospect the mineral resources and other various resources available in the State of Bonai. There were nine (9) registered share holders in the Company wherein Kumar Harishchandra was holding Five Hundred (500) shares from out of the total of Nine Hundred and Fifty (950) shares. He had thus 54% scribed share in the Company. In course of time, new Articles of Association was adopted under the Companies Act, 1956 and at the time of formation of the Company, there were three founder Directors namely, Kumar Harishchandra, the then Prince (Rajkumar), Bonai, Mano Gobinda Mohanty and Bireswar Panda. Kumar Harishchandra having 500 shares in the Company as one of the founder Directors of the Company had never transferred or alienated his share/ shares in favour of any one including the Defendant Nos. 32 to 10 at any given point of time. It is further stated that after formation of the Company arraigned as Defendant No.1 and before the adaptation of the new Articles of Association vide Special Resolution in the General Body meeting held on 03.04.1959, the Ex-Ruler of Bonai had granted lease for operation of Page 3 of 51 // 4 // several iron and manganese ore mines at Taherai, Nandidihi, Kalta, Tinto, Kusumdihi, Rengali beda, Nandakasira and Sarkunda. The mining operations were being undertaken by Defendant No.1-Company. Kumar Harishchandra on account of his ill-health could not however look after the affairs of the Company. So, it was being managed by late Mano Gobinda as the Managing Agent, who too was also one of the founder Directors of the Company. But then taking undue advantage of the illness of Kumar Harishchandra, said Mano Gobinda with malafide intention of taking over the Company, made unholy alliance with one Sitaram Rungta of Chainbasa and inducted him as one of the Directors and share holders of the Company. This was said to have been done behind the back of Kumar Harishchandra. But by the time of death of Kumar Harishchandra, which took place on 08.05.1970; said Sitaram had already entered his name in all the officials records and documents as the Director of the Company in substitution of Kumar Harishchandra, although he had never transferred or alienated his 54% share which he held in the Company or any part of it, either in favour of Sitaram or in favour of Mano Gobinda at any given point of time. Thus, it is stated that inclusion of the name of Sitaram, Annapurna, wife of late Mano
Facts
Gobinda and subsequently, the name of Defendant Nos.2 to 10 as the Directors of share holders of the Company is wholly illegal, void, inoperative and based on false representation. Page 4 of 51 // 5 // Plaintiff’s case is that simply taking over the management of the Company by the Defendant Nos. 2 to 10 by resorting to such deceitful means did never extinguish the right of Kumar Harishchandra over 54% of the share which he had in the Company nor that in any way stood affected. The predecessors of the Defendant Nos.2 to 6 Sitaram and Mano Gobinda by manipulating all officials records are said to have managed to shift the Office of the Company from Bonai to Barbil. It is stated that said change of the name of the Directors of the Company in the Official record is wholly illegal and not in conformity with the provisions contained either in the Memorandum of Associations or Articles of the Associations of the Company. All said actions are said to be in contravention of the provisions contained the in Companies Act, 1956 and the Mining Minerals Developments Regulations Act, 1956 (MMDR Act). The change of the seat of the Office of the Company from Bonai to Barbil and renewal of the mining lease from the year 1962 onwards till the suit in the name Bonai Industrial Company through its Director, Sitaram and after him his family members are asserted to be illegal and without any basis. The Plaintiff for the first time came to know about the change in the ownership and capturing of the affairs and business Company by the Sitaram Rungta and others only in the year, 2009. The Plaintiff then searched for the documents and obtaining the same from the Competent Page 5 of 51 // 6 // Authorities, came to know all about the fraud, mischief etc. played by the Rungta Group. It is next stated that as per the lease document dated 01.01.1942, then Ruler (Raja) of Bonai was pleased to lease out 370 acres of mining area in favour of Kumar Harishchandra in Kaira and Teherai under Bonai Sub-Division. Said Kumar Harishchandra had the exclusive leasehold right over the said area. The lease was for a period of 30 years. Kumar Harishchandra had never transferred the leasehold right in favour of the Company as it stands. Therefore, the Plaintiff and the Defendant Nos. 15 to 38 as the successors of Kumar Harishchandra have the entitlement to the leasehold rights over the said mining area of 370 acres. It is alleged that by the fraudulent actions of the predecessors in interest of Defendant Nos. 2 to 6, the entire exercise of taking over of 500 shares of Kumar Harishchandra and the right of ownership over such shares in that Defendant No.1-Company is illegal and vitiated with fraud and collusion. Thus, it is said that the Defendant Nos. 2 to 10 have in no way acquired any right, title and interest over the said 54% share of the Company as held by Kumar Harishchandra. It is further stated that the Plaintiff received information from the Directors of Mines as well as from the report of the Commission set up pursuant to the order of the Hon’ble Apex Court that these Defendant Nos.2 to 10 and their predecessors in interest namely Sitaram Rungta by influencing various Page 6 of 51 // 7 // public authorities / functionaries and hatching conspiracy with that Mano Gobinda have fraudulently managed to get the name of Kumar Harishchandra as one of the Directors substituted before the Registrar of Companies without his consent and thereby have illegally captured/ usurped 54% share which he had in the Defendant No.1-Company. It is further stated that said mischievous deeds and actions at the behest of Defendant Nos. 2 to 6 in capturing the 54% share of Kumar Harishchandra which he had in the Defendant No.1-Company is wholly in contravention of Rule-37((3) of the Mining Concession Rules, 1960 (MC Rules). Having pleaded all these aforesaid, the Plaintiff advanced the following prayers seeking the decree granting those reliefs. “(a) Let a decree of declaration be passed that late Kumar Harishchandra Deo had/has right, title and interest over 54% share hold right in the Bonai Industrial Company Ltd.-Defendant No.1 from the date of its formation in the year 1939; and he has title over 54% i.e. 41,41,411.2 share out of the total existing 76,69,280 shares of the company; (b) Let a decree of declaration be passed that after the death of late Kumar Harishchandra Deo, the plaintiff and the defendant No.15 to 38 being the successors of Late Kumar Harishchandra Deo over the Bonai Industrial Company and they have jointly acquired the right, title and interest over the 54% shares i.e. 4141411.2 shares; Page 7 of 51 // 8 // (c) Let a decree for partition of the 54% shares amongst the plaintiff and defendant No.15 to 38 be passed allotting 1/25th share to the plaintiff towards her legitimate share over the company, defendant No.1; (d) Let a decree for permanent injunction be passed restraining the defendant No.2 to 10 from exercising the right of ownership over the operation and management of Bonai Industrial Company-defendant No.1 and over the suit schedule Mines as mentioned in Schedule-B of the plaint in the capacity of the Managing Director/ Directors/ share holders or in the capacity of any other office bearers of defendant No.1-Company and further they be restrained from operating the accounts of Company defendant No.1, renewing the mining leases and applying for perspective license of the suit schedule mines; and (e) Pass a decree for mesne profit by directing the defendant No.2 to 10 pay the amount to the plaintiff towards the profit earned by the Company from 1981 till date towards the legitimate 2.16% share of the plaintiff appropriated by the defendants out of the total profit earned by the Company-defendant No.1 from 1981 till the date of filing of the suit and for the future period till disposal of the suit. 4. The Defendant No.1-Company entering appearance filed an application under Order-7, Rule-11 of the Code praying therein to reject the plaint. Page 8 of 51 // 9 // Over and above, the technical grounds raised; the followings are the main grounds which have been taken therein:- A) Suit at the instance of Plaintiff not maintainable:- (i) the plaint does not disclose as to whether Kumar Harishchandra Deo died intestate or left a Will and as to how the estate of Kumar Harishchandra devolved upon the Plaintiff and therefore, her claim has no base; and (ii) the plaint does not contain as to whether Lal Kadamba Sashi Deo has expired and if so, whether he died intestate or left a Will and as to how his estate would devolve upon his heirs and thus the Plaintiff cannot have the claim. The Plaintiff having failed to bring such facts on record and when no document has been filed to that effect, and as no such specific pleading has been taken nor document being filed, the Plaintiff cannot herself claim to be the legal heirs of either that Kumar Harishchandra or that of Lal Kadamba Sashi Deo to maintain the suit for the reliefs claimed. B) Suit is barred by limitation:- (i) the Plaintiff when has prayed for declaration that Late Kumar Harishchandra Deo had right, title and interest over the 54% share in the Bonai Industrial Limited, the Defendant No.1 that after his death, Plaintiff and Defendant Nos. 15 to 38 being his successors have succeeded to said 54% share, in view of the unambiguous admission contained in the plaint that the Plaintiff had full knowledge of the share holding in question and the alleged fraud said to have been perpetrated was to her knowledge, at least from the year, 2009, the suit Page 9 of 51 // 10 // having not been filed within three years being computed therefrom; but having been instituted after expiry of the said period of 3 years; is barred by law of limitation. C) The suit is barred by law contained in Section-59 & 430 of the Companies Act, 2013:- (i) the Plaintiff when had challenged the transfer of shares of Kumar Harishchandra and as such the substitution of others in his place in the relevant records and sought for declaration of title to the share of the Company, the proper forum in consonance with the provisions contained in Section-59 of the Companies Act, 2013 as well as Section- 111 of the Companies Act, 1956 is the National Law Tribunal and in its absence, the Company Law Board. Any person aggrieved by any recording of share transfer, if any, is required to approach the National Company Law Tribunal and in its absence, the Company Law Board for rectification of the Register of Members. Therefore, when provisions contained in Section-430 of the Companies Act, 2013 completely ousts the jurisdiction of the Civil Court, the Civil Court wholly lacks the jurisdiction to entertain the suit for the reliefs claimed. D) Suit as laid for the reliefs claimed contravenes the provisions of Order-1 Rule 1 and 3 and also Rule-9 of the Code:- (i) the Plaintiff has contravened the provisions of Order-1 Rules-1 and 3 of the Code in arraigning Defendant Nos. 15 to 38 in the suit, when Plaintiff has sought for the reliefs for the benefit of Defendant Nos. 15 to 38; they should have been arraigned as the Plaintiffs; and Page 10 of 51 // 11 // (ii) the Plaintiff has contravened the provisions of Order-1 Rule-9 of the Code by not impleading other necessary parties. 5. The Trial Court upon hearing the parties has held as under:- That the Plaintiff’s case is clearly covered under the Section-111 of the Companies Act and as such the suit is barred by said law. The plaint is liable to be rejected in terms of the provisions contained in clause -2(d) to Rule-11 of the Order-7 of the Code. Since the jurisdiction vests with the Tribunal or the Court under the Companies but not with the Civil Court, the plaint has been rejected by the Trial Court. 6. The said order of rejection of the plaint being a deemed decree as that order falls within the definition of ‘decree’ as defined in sub- section-2 of Section-2 of the Code, the Plaintiff being aggrieved by that order, filed the First Appeal. 7. The First Appellate Court dealt all contentions raised for rejection of the plaint one by one. Answering the first contention with regard to the locus-standi of the Plaintiff to maintain the suit, the answer has been rendered in favour of the Plaintiff. Next question as to disposal of the application under Order-7, Rule-11 of the Code during pendency of petition under Order-1 Rule-10 of the Code whether is justified or not, the answer has been that Page 11 of 51 // 12 // pendency of that petition is not an impediment for consideration and disposal of application under Order-7 Rule-11 of the Code, seeking the rejection of the plaint. The question as to non-payment of Court fee and rejection of the plaint for the same has found its answer in favour of the Plaintiff. The other question as regards the rejection of the plaint for mis- joinder and non-joinder of the necessary parties has also been answered against the Defendant No.1 holding the same to be not a ground to reject the plaint. With regard to the fraud pleaded in the plaint and lack of detail particulars be required to be pleaded under Order-6 Rule-4 of the Code, it has been stated that the same is beyond the arena of consideration while deciding the application under Order-7 Rule-11 of the Code. The next important question as to the suit being barred by limitation after detail discussion of the plaint averments and principles of law has however been emphatically answered against the Plaintiff. Lastly, it has been held that the real controversy arising in the suit being that the name of Kumar Harishchandra has been omitted as the Director of the Company and ultimately, in its place the names of members of Rungta family have been included which touches rectification in the Register of the members of the Company which can Page 12 of 51 // 13 // only be done by the Competent Authority under the Companies Act, 2013 which is governed under section-59 of the Companies Act, 2013; the jurisdiction of the Civil Court is barred. Hence, it has been held that the suit is barred by law. These last two answers have provided the answer to the last question as regards the lack of cause of action to file the suit against the plaintiff too. The First Appeal thus having been dismissed, the Plaintiff having suffered from the order of rejection of the plaint passed by the Courts below, has filed this Second Appeal. 8. The Appeal has been admitted to answer the following substantial questions of law:- (i) Whether the question of limitation is required to be gone so deep and extensively at the time of consideration of the petition under Order-7 Rule -11, CPC? (ii) Whether the maintainability of the suit in the present form is barred by Section-59 of the Companies Act? 9. Mr. N.K. Sahu, learned Counsel for the Appellant(Plaintiff) submitted that the First Appellate Court has committed serious error of law by recording the finding that when the Plaintiff on 02.01.2010 had the clear knowledge regarding fraud alleged by her on receiving the reply from the Director of the Company, the period of 3 years having Page 13 of 51 // 14 // expired, the suit instituted in the year 2015 is barred by limitation. According to him in saying so, the First Appellate Court is not right in holding that issuance of legal notice on 08.05.2013 to the Defendant No.1 and its response reply on 28.04.2013 as well as the submission of the report of the Commission in the month of October, 2013 are irrelevant. He further submitted that the First Appellate Court in taking a view in concluding that the suit is barred by limitation has taken an erroneous view of law by ignoring the provisions of Section-17 of the Limitation Act which clearly says that the limitation for filing of the suit is to be computed from the date of discovery of the fraud and not from the date of knowledge. He thus submitted that the finding of the First Appellate Court that limitation for filing the suit on the plea of fraud shall be computed from the date of knowledge is wholly untenable. It was also submitted that the First Appellate Court has completely lost sight of the legal interpretation to the expression “discovery of fraud by reasonable diligence” as embodied in Section-17 of the Limitation Act which means that it must be shown that there has been something to put on enquiry in respect of the matter itself and that if enquiry has been made, it would have led to the discovery of real facts. He also submitted that the Plaintiff in paragraph-17, 18, 19, 22, 23, 26 and 28 of the plaint has described all said facts disclosing the degree of diligence exercised by the Plaintiff to discover the fraud perpetrated by the contesting Page 14 of 51 // 15 // Defendants in capturing the share of Kumar Harishchandra, which he had in the Defendant No.1-Company and that being so, the First Appellate Court has completely failed to appreciate the material facts pleaded in the said paragraphs of the plaint that finally the fraud was discovered in the month of October, 2013, from the report of the Commission that the Company was captured by Sitaram and others by making entries in that record in the Company by adopting backdoor methods. He submitted that when at paragraph-17, 18 and 26, the Plaintiff has stated about the relevancy of giving legal notice to the contesting Defendants seeking disclosure of the documents as to in which manner they made the entry to the Company and refusal to provide such information when has given rise to the cause of action for filing this suit, the same has not been considered in their proper perspectives. It was submitted that the conclusion that the issuance of legal notice on 08.05.2013, to the Defendant No.1 and the receipt of reply on 24.08.2013 and submission of Commission’s report in the month of October, 2013 are not relevant for computing the period of limitation is wholly perverse and vitiated for non-application of judicial mind, running contrary to the objectives of Order-7 Rule-11 of the Code. Page 15 of 51 // 16 // He submitted that the First Appellate Court has committed serious error of law in arriving at a conclusion that the machinery having been provided under the Companies Act, 2013 dealing with the grievance of the Plaintiff as narrated in the plaint, the jurisdiction of the Civil Court is ousted and as such the suit is barred by law when the provisions contained in Section-9 of the Code confers the jurisdiction upon the Civil Court to determine all disputes of civil nature unless the same is barred under the statute or by the necessary implications. He submitted that on the face of the settled law that the ouster of the jurisdiction of the Civil Court is not to be readily inferred, the First Appellate Court ought to have gone for a strict interpretation of the provisions of law pressed into service in applying the bar to the jurisdiction of the Civil Court and for such matter. It was submitted that when the burden lies upon the party/parties who assets /assert, the ouster of the jurisdiction of the Civil Court, the First Appellate Court has placed the burden in a reverse way upon the Plaintiff. He submitted that none of the provisions of law referred to by the Courts below including the provision contained in Section-59 of the Companies Act, 2013 in no way takes away the jurisdiction of the Civil Court to try the dispute raised by a person whose right as a member qua the disputed share / shares is yet to be established. He submitted that in other words neither the provision contained in Section-59 of the Companies Act, 2013 nor in Section-111 Page 16 of 51 // 17 // of the Companies Act, 1956 allow a person to apply for rectification by inclusion of the name of such person whose right as a member qua, the disputed share is yet to be established; which can only be established in a suit. According to him, the Courts below have failed to appreciate all these aspects and therefore, by wrongly applying the provision of Companies Act have gone to hold that the suit is not maintainable being barred by law. He, therefore, submitted that the Courts below on a bare reading of the averments taken in the plaint ought not to have held the suit to be barred by limitation or that the jurisdiction of the Civil Court stands ousted. He in this regard lastly submitted that in fact, detail examination as has been made by the Courts below ought to have been avoided at this initial stage, leaving those to be finally addressed upon and adjudicated in the trial. In support of the submission, learned Counsel for the Appellant (Plaintiff) submitted several decision as per list cited which had been taken of record and would be discussed as and when necessary.
Legal Reasoning
include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint if taken to be correct in their entirety a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of clause (d) is quite clear but if any authority is required, one may usefully refer to the judgments of this court in Liverpool & London S.P. & I Association Ltd. Vs. M.V. Sea Success I and another: (2004) 9 SCC 512 and Popat and Kotecha Property Vs. State Bank of India Staff Association: (2005) 7 SCC 510.” 17. In a recent case, C.S. Ramswamy Vrs. V.K. Senthil and Others; 2022 SCC Online SC 1330, the Hon’ble Apex Court have held that while considering issues / questions whether the plaint filed by the Page 24 of 51 // 25 // Plaintiffs are required to be rejected on the ground of limitation in exercise of power under order-7 Rule-11 of the Code, the cause of action pleaded in the plaint is required to be referred to. Then referring to the averments in the plaint with regard to the date of knowledge of the Plaintiffs as to the fraudulent transactions which have been alleged, relying upon several other decisions of the Courts, in the facts and circumstances of the said case, the Apex Court have held in favour of rejection of the plaint on the ground of being barred by limitation. 18. In view of the aforesaid principles of law as set-forth, it has to be said that when from a meaningful reading of the plaint itself, it is evident that the suit is barred by limitation. The Court would be all within its rights to reject the plaint under Order-7 Rule-11 of the Code. The Plaint averments must clearly present the picture that the suit is barred by limitation and whether the limitation in the facts and circumstances as narrated through the averments in the plaint is a mixed question of law and facts has to be determined and if it is patently evident from the plaint averments themselves that the suit is barred by limitation then such a course of rejection of the plaint would be permissible. Page 25 of 51 // 26 // 19. At this stage, for our purpose, some facts with reference to the date as pleaded in the plaint are required to be kept in view which are the followings:-. (a) the Company was formed and registered under the provisions of Indian Companies Act, 1913 with name and style “Bonai Industrial Company Limited” on 06.04.1939; (Ref.:- Para-5 of the plaint); (b) certificate of incorporation was granted by the register of joint stock Company of the Bonai Estate on 06.10.1939. It is stated that as per the Memorandum of Association of the Company, there were nine (9) registered share holders of the Company wherein Kumar Harishchandra had 500 out of total 950 shares; (c) new Articles of Association of the Company were adopted on 03.04.1949 (Ref.:- Para-6 of the plaint); (d) in the year 1962, Kumar Harishchandra Deo became started to suffer from ailments both physical and mental and remained completely bedridden (Ref.:- Para-2 of the plaint). It is alleged that Mano Gobinda Mohanty and Sitaram Rungta having connived in violation of the Articles of Association of the Company successfully got Sitaram Rungta inducted as Director and share holder of the Company and accordingly, the Company was fully captured by virtue of said fraudulent taking over by Sitaram and in the same year, the office of the Company Page 26 of 51 // 27 // was shifted to Bonai to Barbil (Ref.:- Para -13, 15 of the plaint); (e) Kumar Harishchandra passed away on 08.05.1970; (f) sometime in the year 2009, the Plaintiff came to know about alleged irregularity in the mining operation and share holding of Kumar Harishchandra, which is after appointment of the Commission headed by Hon’ble Mr. Justice M.B. Shah. She then came to know that Kumar Harishchandra had majority of the shares in the Company and his ownership has been fraudulently captured by the Rungta Group (Ref.:- Para -17 of the plaint); (g) in between 12.11.2009 to 14.03.2011, Late Digbijay Chandra Deo, filed several applications under the Right to Information Act, 2005, seeking details regarding the transfer of share of Late Kumar Harishchandra Deo (Ref.:- Para -17 to the plaint); (h) Deputy Director of Mines on 14.12.2009 stated that as per the Memorandum of Association of the Company, there were three Directors at the initial stage and they were Kumar Harish Chandra, Mano Gobinda Mohanty and B. Panda (Ref.:- Para -18 of the plaint); (i) on 02.01.2010, Director of Mines supplied the information to one of the successor of Late Digbijay Chandra Deo that no share transfer deed is available in the official records (Ref.:- Para -27 of the plaint); (j) the Plaintiff alleges that Defendant Nos. 2 to 6 avoided the query with the Defendant No.14 and on 04.02.2011 stated Page 27 of 51 // 28 // that the information sought is highly confidential and concern with the internal affairs of the Company for which those cannot be supplied (Ref.:- Para -18 of the plaint); (k) on 05.08.2013, a Lawyer’s notice was served upon Defendant Nos. 2 to 6 “by discovering the fraud practicing of the Rungta Group” (Ref.:-Para-26 of the plaint); (l) the Company Defendant No.1 on 26.08.2013 replied to the said notice in stating that the same relates to the scarcity of their business (Ref.:- Para -26 of the plaint); (m) sometime in the month of October, 2013, the report of the Commission headed by Hon’ble Mr. Justice M.B. Shah was released; and (n) on 03.09.2015, the Plaintiff presented the plaint in the Court of learned Civil Judge (Senior Division), Bonai. 20. At the risk of their repeatation, it be stated here that prayers in the plaint number (i) to declare that 54% share held by Kumar Harishchandra in the Bonai Industrial Company (Defendant No.1) since the date of its formation in the year 1939 was held by him as such till his death; (ii) after the death of Kumar Harishchandra Deo, the plaintiff and Defendant Nos. 15 to 38 being his successors have succeeded to the same and that be partitioned amongst the Plaintiff and Defendant Nos. 15 to 38 entitling the Plaintiff to 1/25th share therein; (iii) the Defendant No. 2 to 10 be restrained from exercising the ownership over the operation and management of the Company-Defendant No.1 and over Page 28 of 51 // 29 // the suit mines in the capacity of Managing Director / Director / share holder or any other office bearers of the said Company-Defendant No.1; (iv) not to operate the accounts of Defendant No.1, renew the mining leases and apply a prospective license; and (v) mesne profit by directing the Defendant No.2 to 10 to pay the amount to the Plaintiff towards profit incurred by the said Company-Defendant No.1 from 1981 onwards as would be so available towards legitimate share of the Plaintiff. 21. In paragraphs-17 & 18 of the plaint, it has been pleaded that in the year 2009, the Plaintiff and others came to know that Kumar Harishchandra had majority share over the Bonai Industrial Company and his ownership over the Company has been fraudulently captured by the Sitaram and others. It has been further pleaded that they authorized Digbijay Chandra Deo, the son of Defendant No.17 to collect detail informations in that regard and he had made several applications from 12.11.2009 to 14.03.2011 seeking those from the proper quarters. The Director of Mines, the Defendant no.14 in reply to the informations supplied all the informations on 31.04.2009 indicating all those facts with regard to the transfer, in further stating that the share transfer deed was not available in the Office. Page 29 of 51 // 30 // 22. In paragraph-27, it has been assertively averred that the informations supplied by the Director of Mines on 02.01.2010 clearly established the fraud practised by the Defendant Nos. 2 to 6 in capturing 54% share of Kumar Harishchandra Deo over the Bonai Industrial Company from the year 1962 and they have no title whatsoever and thereby, have deprived Kumar Harishchandra from his legitimate right over the Company-Defendant No.1, during his lifetime and thereafter deprivation is to the present Plaintiff and Defendant Nos. 15 to 38. At this stage, let’s also have a glance at paragraph-28 of the plaint, in which the cause of action arisen to file the suit has been pleaded as mandated under the law contained in Order-7 Rule-1(e) of the Code. For better appreciation, said paragraph is quoted hereunder:- “The cause of action for the suit arose within the territorial jurisdiction of this Hon’ble Court for the first time on 14.12.2009, when the Plaintiff and Defendant Nos. 15 to 38 being the successors of Kumar Harishchandra Deo for the first time come to know about the fraudulent and deceitful manner takeover of the 54% share of Late Kumar Harishchandra Deo by the defendant No.2 to 6 and illegally capturing of the Defendant No.1-Company and on 02.01.2010 when the Director of Mines in pursuance to the query of Digbijay Chandra Deo supplied the information stating therein that no transfer of share deed is available with them and no Page 30 of 51 // 31 // information can be supplied with regard to the reason for change of the Directors of the Company and, when justice M.B. Shah Commission gave its Report with an observation regarding the fraudulent taking over of the Suit Schedule Mines by the Rungta Group and capturing of the Bonai Industrial Company by adopting backdoor method and suggested for action against the Defendant Nos. 2 to 6 under M.M.D.R. Act and M.C. Rule, 1960 and on 26.08.2013, when the Lawyer for the Defendant No.1-Company refused to supply any information about the alleged transfer of the Shareholder Right of Late Kumar Harishchandra Deo in the Company.” 23. Considering the averments and allegations made in the plaint, it would be evident that according to the Plaintiff, the cause of action in the suit arose on 14.12.2009 and then again on 02.01.2010, on getting the written information from the Director of Mines in response to the query made by Digbijay Chandra. Then again, it is of course, stated that it reoccurred or re-arose upon the release of the report of the Commission. Next, it is stated that the Lawyer’s notice was given to the Defendant No.1-Company on 26.08.2013 and Defendant No.1- Company refused to supply any information about the said transfer of share of Kumar Harishchandra in the Company. So, that is also said to be the reoccurrence of the cause of action for the suit. It is the Plaintiff’s case that the share transfer took in the year 1962 and then said Kumar Harishchandra was alive and he died about 8 Page 31 of 51 // 32 // years thereafter. Then it is stated that the Plaintiff came to know about the fraudulent and deceitful taking over of all 54% share of Kumar Harishchandra by Defendant Nos. 2 to 6 and the illegal capturing of Defendant No.1-Company on 14.12.2009 after lapse of 38 years. When the mining operation was being carried out by the Defendant No.1- Company having its office at Barbil being shifted from Bonai, right from the year 1962 and such mining operations as well as all other associated activities were being carried out openly to the knowledge of all including the public functionaries/ authorities, there is absolutely no explanation as to how the Plaintiff could only know the same in the year 2009 when the mining operation by the Company-Defendant No.1 was not behind the back of the Plaintiff and she cannot feign total ignorance to all said activities of the Company-Defendant No.1. 24. At this place, it would be apposite to refer paragraph -31 of the judgment of the Hon’ble Apex Court in case of C.S. Rama Swami (supra) which read:- “31. Even the averments and allegations in the plaint with respect to fraud are not supported by any further averments and allegations how the fraud has been committed/played. Mere stating in the plaint that a fraud has been played is not enough and the allegations of fraud must be specifically averred in the plaint, otherwise merely by using the word “fraud”, the plaintiff would try to get the suits within the limitation, which otherwise may be Page 32 of 51 // 33 // barred by limitation. Therefore, even if the submission on behalf of the respondents – original plaintiffs that only the averments and allegations in the plaints are required to be considered at the time of deciding the application under Order 7 Rule 11 CPC is accepted, in that case also by such vague allegations with respect to the date of knowledge, the plaintiffs cannot be permitted to challenge the documents after a period of 10 years. By such a clever drafting and using the word “fraud”, the plaintiffs have tried to bring the suits within the period of limitation invoking Section 17 of the Limitation Act. The plaintiffs cannot be permitted to bring the suits within the period of limitation by clever drafting, which otherwise is barred by limitation. At this stage, a recent decision of this Court in the case of Raghwendra Sharan Singh (supra) is required to be referred to. In the said decision, this Court had occasion to consider all earlier decisions on exercise of powers under Order 7 Rule 11 CPC, which are considered by this Court in paragraphs 6.4 to 6.9 as under :- ………….. 32. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 CPC to the facts of the case on hand and the averments in the plaints, we are of the opinion that both the Courts below have materially erred in not rejecting the plaints in exercise of powers under Order 7 Rule 11 (d) CPC. The respective suits have been filed after a period of 10 years from the date of execution of the registered sale deeds. It is to be noted that one suit was filed by the minor, which was filed in the year 2006, in which some of the plaintiffs herein were also party to the said suit and in the said suit, there was a specific reference to the Sale Deed dated Page 33 of 51 // 34 // 19.09.2005 and the said suit cane to be dismissed in the year 2014 and immediately thereafter the present suits have been filed. Thus, from the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting, the plaintiffs have tried to bring the suits within the period of limitation, which otherwise are barred by limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and other decision of Raghwendra Sharan Singh (supra), and as the respective suits are barred by the law of limitation, the respective plaints are required to be rejected in exercise of powers under Order 7 Rule 11 CPC.” 25. The Plaintiff claims to be the granddaughter of Kumar Harishchandra, the erstwhile title holder of the shares in the Company- Defendant No.1 and the daughter of Lal Kadamba Sashi Deo. The plaint is wholly silent as to if any steps had been taken either by Kumar Harishchandra or Lal Kadamba Sashi Deo during their lifetime, when they had been directly affected by such actions as to the change in the sharing of the Company which are now said to be the outcome of fraud being practised upon Kumar Harishchandra. The plaint does not also lays the foundation of the alleged fraud indicating no such other material particulars. The averments with regard to fraud appear to be too vague. Thus, it clearly appeares that by a clever drafting by using word ‘fraud’, the Plaintiff has tried to bring the suit within the period of limitation and for that banks upon the provisions of Section-17 of the Page 34 of 51 // 35 // Limitation Act. The plaint is also silent as to claim of three sons and one daughter over the Company particularly as to the share of Kumar Harishchandra. The Plaintiff on 03.09.2015 has instituted the suit alleging fraudulent activities which are said to have been done, down the year 1962 onwards as the Plaintiff says. In order to save the limitation, it has been contended that the alleged fraud was discovered by the Plaintiff in the year 2013 and therefore, in view of the provisions contained under Section 17(1)(a) of the Limitation Act, the period of limitation should be accordingly, computed. This has been seriously refuted from the side of the Defendant No.1, that the Plaintiff under no circumstance by relying upon the Section-17(1)(a) of the Limitation Act get her suit saved from being barred by limitation by stretching over the period upto the date of institution of the suit. 26. The principle of law has been well set forth in case of P. Radha Bai and Others Vrs. P. Ashok Kumar and Another; (2019) 13 SCC 445. It has been held therein that Section-17 of the Limitation Act does not defer the starting point of limitation period, merely, because the party against whom such allegation is made has committed the fraud. It has been empathetically held that once a party becomes aware of the antecedent facts, necessary to pursue the legal proceeding, the limitation Page 35 of 51 // 36 // period commences. It would be profitable to refer to the relevant paragraph of the said judgment which reads as under:- “39. The respondent’s contention proceeds on a misconceived notion of Section 17. Even if Section-17 were to be extended to Section 34, it would not address the respondent’s grievance. Section 17 does not defer the starting point of the limitation period merely because the appellant has committed fraud. Section 17 does not encompass all kinds of frauds and mistakes. Sections 17 (1)(b) and (a) only encompasses only those fraudulent conduct or act of concealment of documents which have the effect of suppressing the knowledge entitling a party to pursue its legal remedy. Once a party becomes aware of the antecedent facts necessary to pursue a legal proceedings, the limitation period commences.” 27. In the given case as obtained from the averments in the plaint itself, the period of limitation therefore commences from the year, 2009, when it has been specifically pleaded in paragraph-17 of the plaint that the Plaintiff came to know in the year, 2009 that Kumar Harishchandra’s right, title to the shares in the Company-Defendant No.1 had been fraudulently transferred. Even thereafter, in paragraph-27 of the plaint, it has been averred that the alleged fraud was firmly established in the year, 2010. Page 36 of 51 // 37 // It has been averred therein that the transfer of share of Late Kumar Harishchandra in the Company coupled with the information supplied by the Directors of Mines to one of the successor of Late Digbijay Chandra on 02.01.2010 clearly established the fraud practised by the Defendant Nos. 2 to 6 in capturing 54% of share of Kumar Harishchandra over the Bonai Industrial Company from 01.11.1962 over which they have no title whatsoever and deprived Kumar Harishchandra from his legitimate right from the Defendant No.1- Company. So, when the Plaintiff states that the fraud was firmly established in the in the year, 2010, then it is further contended that even in spite of all those, the provisions of Section-17 of the Limitation Act would come to her rescue. As already noted above that in case of P.Radha Bai & Others (supra), the Hon’ble Apex Court has held that Section-17 of the Limitation Act does not encompass all kinds of frauds and mistakes and Section-17(1)(b) and (d) of the Act and only those fraudulent conduct or act of concealment of documents which are the effect of suppressing the knowledge entitling a party to pursue its legal remedy would be covered under the provisions of Section-17(1)(a) of the Limitation Act. The authoritative conclusion therein is that once a party became aware of the antecedent facts, necessary to pursue the legal proceeding, the limitation period commences. So, here the Plaintiff having clearly stated at paragraph-17 that knowledge of her right in the Page 37 of 51 // 38 // year 2009 and then also having been confirmed by the reply in the year 2010. The suit having been instituted on 30.03.2015 is clearly barred by limitation, more so, when the Plaintiff has sought for a declaration of title which is the main prayer.” 28. In case of Ramesh B. Desai & Others Vrs. Bipin Vadilal Mehta & Others; AIR 2006 SC 3672 at para-24 of the judgment; the position has been clarified. While stating that the Company petition would not be barred by limitation being covered under Section-17(1)(a) of the Limitation Act and not by Section-17(1)(b) of the Act. The Petitioners therein had not claimed any right or title over the shares of the Company and it had also been held therein that Section-17(1)(b) of the Act would come into play, where there is a claim of any kind of right or title to any movable and immovable property. In that case, since the allegations were on the score that the funds of the Company were utilized in the purchase of shares by one which were on the score then recorded in his name, the whole transaction was in violation of Section-77 of the Companies Act, 1956 and consequently, the register of the Company required to be rectified in accordance with Section-155 of the Company Act and as there it had been pleaded that the Petitioners therein had no knowledge of the fraud played by the Respondents whereby, the funds of the Company were utilized in the purchase of shares which they only came to know through a criminal complaint, the submission that Page 38 of 51 // 39 // Section-17(1)(a) of the Limitation Act would stand to govern was accepted in holding that the same would come to rescue in arresting the running of the period of limitation. 29. In our case, thus the suit ought to have been filed within three years of the date of knowledge of the Plaintiff for asserting her title to the share in the Company-Defendant No.1, which according to the plaint case, expired by the year, 2012. The same cannot be stretched over to the time of release of the report of the Commission and by issuing the Lawyer’s notice and receipt of response by saying that the same have been the source of knowledge which actually is not surfacing from the averments in the plaint which are supported by affidavit of the Plaintiff. In the instant case, the Plaintiff in para-17 has pleaded that in the year 2009; first time she came to know that Kumar Harish Chandra had majority share over the Company and his ownership over the Company has been fraudulently captured. Then again in para-28, that being repeated it has been further stated that on 02.01.2010, the Director of Mines supplied the information stating therein that the share transfer deed is not available. 30. The legal proposition is established that issuance of legal notice does not extend the period of limitation (Kandimalla Raghavaiah and Page 39 of 51 // 40 // Company Vrs. National Insurance Company & Another; (2009) 7 SCC 768). 31. In case of Life Insurance Corporation of India Vrs. Raghunath Prasad Almal; 44 (1991) DLT 521; the Hon’ble High Court of Delhi have held that the plaintiff is not permitted to plead mechanically any date of the alleged discovery of the mistake-whichever he deems fit and proper in the circumstances of a particular case. The court further held that the term ‘reasonable’ in the context of Section 17 of the Limitation Act, 1963 and diligence, as reasonable in regard to those circumstances of which the actor called on to act reasonably, knows or ought to know.” 32. The First Appellate Court has held that the issuance of legal notice, receipt of the reply to the same on 05.08.2013 and 26.08.2013 along with the report of the Commission released in the month of October, 2013 are not relevant, since has been heavily commented upon from the side of the Plaintiffs, the relevant findings need to be placed for better appreciation:- “Scrutiny of the above said averments made in the plaint, establishes the fact that the plaintiff has clear and categorical knowledge regarding the fraud, alleged, since 02.01.2010 on receipt of reply from the Director of the Company and that admittedly the period of limitation being 3 years, computed from that day has already expired way back on 02.01.2013. But, the Page 40 of 51 // 41 // present suit having being filed in the year 2015 is barred by limitation and that issuance of legal notice on 08.05.2013 to defendant No.1 and receipt of reply dated 24.08.2013 and submission of the Hon’ble Mr. Justice M.B. Shah Commission Report in the month of October, 2013 are not relevant for
Arguments
10. Mr. Sanjit Mohanty, learned Senior Counsel for the Respondent No.1 (Defendant No.1) first of all placed that the scope of the Second Appeal under Section-100 of the Code is very limited and interference in the Second Appeal is called for only in exceptional circumstances Page 17 of 51 // 18 // that too, upon proper circumspection. He next submitted that when on meaningful reading of the plaint itself, it is evident that the suit is barred by law of limitation; the Court would be within its rights to reject the plaint under Order-7 Rule-11 of the Code. In this connection, he further highlighted that for the purpose, the Court is required to see as to whether it appears from the very statements in the plaint that the suit is barred by limitation and that is clearly included within the purview of “law” as finds mention in Order-7 Rule-11 of the Code. He then submitted that in the given case, the point of limitation is not a mixed question of law and fact and it would be patently evident from the plaint itself that the suit is barred by limitation. He submitted that when the Plaintiff on her own has admitted that she derived the knowledge of the capturing of share holding by the Defendant No.1 and other connected Defendants in the year 2009 which is sought to be redressed and then she too has taken the stand that the fraud was established in the year 2010; said averments clearly indicate that the suit is time barred since the suit has been filed on 30.03.2015. Highlighting the above, he invited the attention of this Court to paragraph-17, 18, 27 and 28 of the plaint. He further submitted that in the entire plaint, there stands no such averment nor even any explanation from the Plaintiff is forthcoming as to how and why she and her predecessors in interest Page 18 of 51 // 19 // maintained sphinx like silence for over half a century. He submitted that when the Plaintiff claims to be the granddaughter of Kumar Harishchandra whose share transfer is under dispute/challenge and the daughter of Lal Kadamba Sashi Deo, there is absolutely no averment as to what step had been taken by the predecessors-in-interest regarding in the matter of share holding of the Company. So he submitted that the plaint has been rightly rejected by holding the suit as by barred by limitation. According to him, the provision of Section-17 of the Limitation Act does not at all save the present suit from falling foul of the rigours of the law of limitation. According to him, once a party is aware of the antecedent facts necessary the pursue the legal proceeding, the period of limitation stands to run from that date and the running of the period of limitation does not get arrested by the action of the suitor in giving notice and awaiting the response etc. It was submitted that the plaint having been presented on 30.03.2015, when as per the Plaintiff’s own averment supported by affidavit in the plaint, she had the knowledge of being deprived of her right as she claims, way back in the year 2009 which had commenced from the capturing of the share holding of Kumar Harishchandra, way back in the year 1962, the Plaintiff’s suit is barred by limitation and therefore, the First Appellate Court has rightly held so in passing the impugned order. Page 19 of 51 // 20 // He submitted that in the present suit, the Register of Member and transfer of share of the Company and its Management have been impugned as would be evident from the averments taken in the plaint at paragraph-8 to 10, 13 to 16, 20 to 23 and 25. He then inviting the attention of this Court to those averments submitted that in effect, the Plaintiff when seeks rectification of register under Section-59 of the Companies Act, 2013; the Civil Court has no jurisdiction to adjudicate upon said disputed facts. He thus submitted that on all these above grounds, the plaint filed seeking the reliefs has been rightly rejected and the Courts below upon due examination of only the plaint averments and having not at all gone for a roving enquiry as required for the purpose have rightly passed the order. According to him, the Courts below have not at all embarked upon a detail examination by drawing any such presumption or inference from the plaint averment but have passed the order on a reading the plaint averments in a meaningful manner which actually is the duty at this stage to consider the matter of ‘rejection’ or ‘no rejection’ of the plaint. He also cited several decisions as per the list taken on record in support of his contentions which would be discussed as and when necessary. 11. Keeping in view the submissions made, I have carefully gone the judgments passed by the Courts below. I have also read the averments Page 20 of 51 // 21 // taken in the plaint in seeking the reliefs as already noted in the foregoing paragraph-3. 12. The impugned judgments concern with the rejection of the plaint and the first substantial question of law framed for being answered relates to the sustainability of the order of rejection of the plaint on the ground of limitation standing on the way of entertainment of the suit in side by side ascertaining whether the Courts below in the matter, have passed the impugned order well within the parameter prescribed for the purpose of consideration of such a point in saying the suit to be barred by law. The second question is the maintainability of the suit that in view of the provisions contained in Section-59 of the Companies Act, 2013 whether the grievance placed by the Plaintiff in the plaint are adjudicable by the forums under the Companies Act, 2013. Before undertaking the exercise to find out the answers to the substantial questions of law, the settled position of law holding the field of rejection of the plaint by pressing into service, the provisions of Order-7 Rule-11 of the Code are felt apposite to be placed so as to be borne in mind for the given purpose. 13. In case of Saleem Bhai & Others Vrs. State of Maharashtra & Others; 2003(1) SCC 557, it is has been held as under:- Page 21 of 51 // 22 // “A perusal of Order-7 Rule-11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order-7 Rule-11 CPC at any stage of the suit-before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial.” 14. In case of Sopan Sukhdeo Sable & Others Vrs. Assistant Charity Commissioner and Others; 2004 (3) SCC 137, relying upon the aforesaid case of Saleem Bhai (supra) as well as another case ITC Limited Vrs. Debts Recovery Appellate Tribunal; 1998 (2) SCC 70, which was with reference to the question of lack of cause of action for filing the suit, it has been held:- “The trial court must remember that if on a meaningful and not formal reading of the plaint, it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order-7 Rule-11 of the Code taking care to see that the ground mentioned therein is fulfilled. If cleaver drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order-10 of the Code.” 15. With regard to the limitation projected as the ground for rejection of the plaint, in case of Ramesh B. Desai & Others Vrs. Bipin Vadilal Mehta & Others; (2006) SC 3672, it has been held:- Page 22 of 51 // 23 // “A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words “barred by law” occurring in Order 7 Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this Court to which one of us was a member (Ashok Bhan J.) in Civil Appeal No.4539 of 2003 (Balasaria Construction Pvt. Ltd. Vs. Hanuman Seva Trust and others) decided on 08.11.2005 and it was held:- “After hearing counsel for the parties, going through the plaint, application under Order-7, Rule-11(d) CPC and the judgments of the trial Court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex-facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time” This principle would be equally applicable to a Company Petition. Therefore, unless it becomes apparent from the reading of the Company Petition that the same is barred by limitation the petition cannot be rejected under Order-VII, Rule-11 (d) CPC.” 16. In case of Hardesh Ores (P) Limited Vrs. Hede and Company; (2007) SCC 614, the Hon’ble Apex Court has held as follows:- Page 23 of 51 // 24 // “The language of Order 7 Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that "law" within the meaning of clause (d) of Order 7 Rule 11 must
Decision
computing the period of limitation. In view of the above said, it is held that the suit is barred by limitation.” This Court for the discussion and reasons as have been stated in the foregoing paragraph finds itself to be wholly in agreement with the above view taken by the First Appellate Court. 33. For what have all been discussed above, keeping in view the provisions contained in Article-58 of Schedule-1 of the Limitation Act, which prescribes the period of limitation to file a suit to obtain any other declarations, as three years from the date when the right to sue first accrues; the emphasis being given to the word ‘first’ occurring in between the word ‘sue’ and ‘accrues’; as per the averments in the plaint filed by the Plaintiff that the cause of action arose for the first time in the year 2009 and then firmly established in the year 2010; the suit has to be held to be barred by the law of limitation. Acceptance of further pleading in that light that those again and again recurred and therefore from the year 2013, the period of limitation for the suit would run; and thereby saying that fresh cause of action arose from the year 2013 and the period of limitation would be computed therefrom; in my view Page 41 of 51 // 42 // would run in opposition to provisions contained in Article-58 of Schedule-1 of the Limitation Act and thus make it redundant. Therefore, when it is the Plaintiff’s own case that the cause of action as to discovery of fraud arose for the first time in the year 2009, and it was firmly established in the year 2010, as the suit has been instituted on 30.03.2015, the suit is clearly barred by limitation. The question of limitation here is thus clearly borne out from the averments made in the plaint without even drawing any inference from the facts pleaded or as consequential thereto. The First Appellate Court therefore, in holding the suit to be barred by limitation is not found to have gone so deep by extensive examination and has rather acted well within the four corners of law by giving a meaningful reading to the plaint averment. 34. Proceeding to the question as to the suit being barred by law contained in Section-59 of the Companies Act, 2013, let’s again advert to the main prayer advanced in the plaint. That is for the declaration that the Plaintiff and Defendant Nos. 15 to 38 being the successors of Kumar Harishchandra are entitled to succeed to 54% of the share holding of the Company. 35. The provisions of Section-59 (1) of the Companies Act, 2013 reads as under:- Page 42 of 51 // 43 // “59. Rectification of register of members- (1) If the name of any person is, without sufficient cause, entered in the register of members of a company, of after having been entered in the register, is, without sufficient cause, omitted therefrom, or if a default is made, or unnecessary delay takes place in entering in the register, the fact of any person having become or ceased to be a member, the person aggrieved, or any member of the company, or the company may appeal in such form as may be prescribed, to the Tribunal or to a competent court outside India, specified by the Central Government by notification, in respect of foreign members or debenture holders residing outside India, for rectification of the register.” 36. The specific provision contained in Section-430 of the Companies Act, 2013 which bars the jurisdiction of the Civil Court reads as under:- “430. Civil court not to have jurisdiction - No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate Tribunal.” 37. With regard to forums etc. for reddressal of certain grievances; these are provided in Section-242 of the Companies Act, 2013, which reads as follows:- Page 43 of 51 // 44 // “(1) If, on any application made under section 241, the Tribunal is of the opinion. (a) that the company’s affairs have been or are being conducted in a manner prejudicial or oppressive to any member or members or prejudicial to public interest or in a manner prejudicial to the interests of the company; and (b) that to wind up the company would unfairly prejudice such member or members, but that otherwise the facts would justify the making of a winding-up order on the ground that it was just and equitable that the company should be wound up, the Tribunal may, with a view to bringing to an end the matters complained of, make such order as it thinks fit.” (2) Without prejudice to the generality of the powers under sub-section (1), an order under that subsection may provide for- (a) the regulation of conduct of affairs of the company in future; (b) the purchase of shares or interests of any members of the company by other members thereof or by the company; ………………. (h) removal of the managing director, manager or any of the directors of the company; (i) recovery of undue gains made by any managing director, manager or director during the period of his appointment as such and the manner of utilisation of the recovery including transfer to Investor Education and Protection Fund or repayment to identifiable victims; (j) the manner in which the managing director or manager of the company may be appointed subsequent to an order removing the existing Page 44 of 51 // 45 // managing director or manager of the company made under clause (h); ……………. (m) any other matter for which, in the opinion of the Tribunal, it is just and equitable that provision should be made.” 38. Giving a cumulatively reading to all these above averments made in paragraphs-10, 13, 14, 15 and 16 of the plaint; it would be clear that Plaintiff seeks inclusion of her name as share holder and member of the Company with others i.e. Defendant Nos. 15 to 38 to the exclusion of the contesting Defendant Nos. 2 to 6. Therefore, in essence, the Plaintiff is seeking rectification of the register. Said grievance is squarely covered by the provision contained in section-59 of the Companies Act, 2013 which provides the mechanism and forums for being knocked at. 39. In this connection, we may refer to few decisions of different High Courts. In case of Eternit Everest Ltd. Vrs. Neelamani Bhartiya; AIR1999 Raj; 235, it has been said by the Hon’ble High Court of Rajasthan that:- “The relief claimed by the Plaintiff that he should be declared to be the owner of the above 300 shares and duplicate shares be issued to him cancelling the transfer of these shares in favour of the transferees. All other reliefs are consequential. In the circumstances of the case when the plaintiff himself has stated that Page 45 of 51 // 46 // he had signed the transfer deeds and kept them along with the share certificates and ultimately it is found that someone has come to possess the transfer deeds and original shares and put them up before the Company for the shares being registered in their names, it is clearly a case of cancellation of such registration of shares in the name of the transferees obtained by misrepresentation or fraud or any other reason. There is no question of declaration because when the register is rectified, automatically, the shares would revert back to the plaintiff. 11. In the aforesaid circumstances the case is, clearly cognizable by the Company Law Board, and as such not by the Civil Court under Section 9 of the Civil Procedure Code. The revision petition is allowed. The order of the trial Court is set aside and the plaint is rejected.” 40. In Shashi Prakash Khemka and Others Vrs. NEPC Micon Ltd. and Others; (2019) 212 Company Cases 385, the Hon’ble Supreme Court considered the provisions contained in section 430 of the Companies Act, 2013 and held as follows:- “4. Learned Counsel for the Appellants has drawn our attention to the view expressed in Ammonia Supplies Corporation P. Ltd. V. Modern Plastic Containers P. Ltd.; MANU/SC/0585/1998/1998 : (1998) 7 SCC 1053, to canvass the proposition that while examining the scope of Section 155 (the predecessor to Section 111), a view was taken that the power was fairly wide, but in case of a serious dispute as to title, the matter could be relegated to a civil suit. The submission of learned counsel is that the subsequent legal developments to the impugned order have a Page 46 of 51 // 47 // direct effect on the present case as the Companies Act, 2013 has been amended which provides for the power of rectification of the register Under Section 59 of the said Act. Learned Counsel has also drawn our attention to Section 430 of the Act, which reads as under:- …………………… 5. The effect of the aforesaid provision is that in matters in respect of which power has been conferred on the National Company Law Tribunal, the jurisdiction of the civil court is completely barred. 6. It is not in dispute that were a dispute to arise today, the civil suit remedy would be completely barred and the power would be vested with the National Company Law Tribunal Under Section 59 of the said Act. We are conscious of the fact that in the present case, the cause of action has arisen at a stage prior to this enactment. However, we are of the view that relegating the parties to civil suit now would not be the appropriate remedy, especially considering the manner in which Section 430 of the Act is widely worded. 7. We are thus of the opinion that in view of the subsequent developments, the appropriate course of action would be to relegate the Appellants to remedy before the National Company Law Tribunal under the Companies Act, 2013. In view of the lapse of time, we permit the Appellants to file a fresh petition within a maximum period of two months from today.” 41. In SAS Hospitality Pvt.Ltd. & Anr. V Surya Constructions Pvt.Ltd. & Ors.; 2018 SCC OnLine Del 11909, the Hon’ble Delhi High Page 47 of 51 // 48 // Court dealing with a suit for declaration that an allotment of shares be declared null and void, among other reliefs, rejected the plaint as being barred by law in terms of Section 430 of the Companies Act, 2013. The Hon’ble High Court further held that the NCLT has wide and expansive powers to adjudicate upon issues with respect to the affairs of a company. The relevant extracts of the Judgment are reproduced below: “10……..The NCLT has been vested with powers that are far reaching in respect of management and administration of companies. The said powers of the NCLT include powers as broad as “regulation of conduct of affairs of the company” under section 242(2)(a), as also various other specific powers. NCLT is a tribunal which has been constituted to have exclusive jurisdiction in the conduct of affairs of a company and its powers can be contrasted with that of the CLB under the unamended Companies Act, 1956. 15……….The bar contained in Section 430 of the 2013 Act is in respect of entertaining “any suit”, or “any proceedings” which the NCLT is “empowered to determine”. The NCLT in the present case would be empowered to determine that the allotment of shares in favour of the Defendant Nos.5 to 9 was not done in accordance with the procedure prescribed under section 62 of the 2013 Act. The NCLT is also empowered to determine as to whether rectification of the register is required to be carried out owing to such allotment, or cancellation of allotment ordered, if any. The NCLT can also determine if in the interregnum, the Defendant Nos.5 to 9 ought to exercise any voting rights. The NCLT would be empowered to pass any such orders as it thinks Page 48 of 51 // 49 // fit, for the smooth conduct of the affairs of the company, which would include an injunction order protecting the assets of the Defendant No.1 Company. The NCLT would also be empowered to oversee and supervise the working of the company, and also appoint such persons as it may deem necessary to regulate the affairs of the company. 16………..The jurisdiction to go into these allegations, vests with the Tribunal under Section 242 of the 2013 Act. Under Section 242(2), the NCLT has the power to pass “such order as it thinks fit”, including providing for “regulation of conduct of affairs of the company in future”. These powers are extremely broad and are more than what a Civil Court can do. Even if in the present case, the court grants the reliefs sought for by the Plaintiff, after a full trial, the effective orders in respect of regulating the company, and administering the affairs of the company, cannot be passed in these proceedings. Such orders can only be passed by the NCLT, which has the exclusive jurisdiction to deal with the affairs of the company. 17. Moreover, the powers of the NCLT being broader and wider than what can be exercised by this Court in exercise of civil jurisdiction under section 9 CPC. The NCLT is a specialized Tribunal constituted for the purpose of speedier and effective regulation of the affairs of the companies. As observed by the Supreme Court in Union of India v.R.Gandhi, (2010) 11 SCC 1 (hereinafter, ‘R. Gandhi’) and thereafter, in Madras Bar Association v. Union of India, (2015) 8 SCC 583 (hereinafter, ‘Madras Bar Association’) the NCLT has been created by a specific amendment in the law. The constitution of the NCLT has been upheld. ……………… Page 49 of 51 // 50 // 19. The bar under Section 430 of the 2013 Act being absolute in nature, this Court is of the view that the jurisdiction to adjudicate the disputes raised in the present case vests with the NCLT.” 42. The grievance of the Plaintiff in the suit as culled out from the averments made in the plaint is that the name of Kumar Harishchandra has been omitted without his knowledge and consent and that has been substituted by the names of the contesting Defendants, and they have been illegally included / entered in the Register of the Members of the Company. These are now sought to be rectified and the Plaintiff with others claim their inclusion/ entry in the Register of the Members of the Company. Thus, such grievance squarely comes within the ambit of Section- 59 of the Companies Act, 2013 and as such is cognizable by the Forms prescribed under the Companies Act, 2013 and therefore, in view of the provisions contained in section-430 of the Companies Act, 2013, the jurisdiction of the Civil Court stands ousted. The aforesaid discussion and reasons, accordingly, provide the answers to the substantial questions of law for holding that the Trial Court as well as the First Appellate Court are justified in rejecting the plaint under Order-7 Rule-11 of the Code, which runs to confirm the impugned judgments of rejection of the plaint. Page 50 of 51 // 51 // 43. Resultantly, the Appeal stands dismissed. The judgments and decrees passed by the Trial Court as well as the First Appellate Court below rejecting the plaint filed by the Plaintiff giving rise to Civil Suit No.18 of 2015 in the Court of learned Civil Judge (Senior Division), Bonai are hereby confirmed. No order as to cost. Narayan (D. Dash), Judge. Page 51 of 51