Abu Taher Vs. Nur Muhammad and others

Abu Taher (Petitioner)

 

Vs.

 

Nur Muhammad and others (Respondents)

Supreme Court

Appellate Division

(Civil)

Present:

Latifur Rahman CJ                          

Mahmudul Amin Choudhury J          

Judgment

January 7, 2001.

The Companies Act, 1913 (VII of 1913), Section 38

In the absence of any definite statement from the respondent about the delivery of the share certificate, and in view of the documents on record admitting that the share certificate was not delivered to the company or to respondent No. 2, it cannot be accepted that the share certificate was in fact handed over to the company or to respondent No. 2.

Lawyers Involved:

Ajmalul Hossain, Senior Advocate, instructed by Sharifuddin Chaklader Advocate-on- Record—For the Petitioner.

Md. Nawab Ali, Advocate-on-Record—Respondent No. 1.

Not represented—Respondent Nos. 2-5.

Civil Petition for Leave to Appeal No. 394 of 1996

(From the Judgment and order dated 31-01-1995 passed by the High Court Division, Dhaka in Matter No. 34 of 1990).

Judgment

               Latifur Rahman CJ.- This petition for leave to appeal by respondent No. 2 petitioner is directed against the judgment and order passed by a Company Court of the High Court Division in Matter No. 34 of 1990 on 31- 1-1995.

2. The short and material fact relevant for disposal of this petition is that Mr. Nur Mohammad petitioner filed an application under section 38 of the Companies Act, 1913 for rectification of share register of respondent No. 1, namely, Agrani Flour Mills Ltd., a private limited company.

3. The case of the petitioner-respondent is that the Managing Director of the company’ respondent No. 2 Abu Taher persuaded the petitioner for better management of the company to sign some blank letter-heads on the petitioner’s trading company. After obtaining signature on blank papers from different shareholders of the company respondent No. 2 and 3 started acting arbitrarily in violation of the Articles of Association of the company thereby submitted “E” form of the company to the Registrar, Joint Stock Companies showing, inter alia, that respondent No. 3 Mr. Mostafa Kamal have transferred his 10 shares to Managing Director on 4-5-1983 as a consequence of that Mr. Mostafa Kamal lost his directorship of the company. Respondent No. 2 petitioner by submitting another “E” form in 1988 showed that the petitioner before the Company Judge had transferred his 10 shares in the company to respondent No. 2, although the petitioner never transferred his shares in the company to anybody and hence the petitioner by application seeks rectification of share register. The learned Company Judge considered the question of alleged sale and transfer of 10 shares by Nur Mohammad in favour of respondent No. 2 Abu Taher.  Nur Mohammad categorically denied of having transferred any shares to respondent No. 2 Abu Taher. Nur Mohammad respondent in his affidavit-in-reply had denied the receipt of any consideration money for his alleged transfer as he never agreed to transfer the shares. The Company Judge found that the share certificate of Nur Mohammad was shown to him by the learned Advocate appearing for the respondents but there was no statement by the respondent that the certificate had been handed over by the petitioner. In the absence of any definite statement from the respondent about the delivery of the share certificate, and in view of the documents on record admitting that the share certificate was not delivered to the company or to respondent No. 2, it cannot be accepted that the share certificate was in fact handed over to the company or to respondent No. 2.

4. In that view of the matter the learned Company Judge allowed the application for rectification of the share of Nur Mohammad. The matter was decided on factual determination by the Company Judge. The application for rectification of share of the respondent was rightly allowed.

5. Mr. Ajmalul Hossain, learned Advocate appearing for the petitioner, could not point out any illegality committed by the Company Judge as the alleged transfer of 10 shares of respondent to the petitioner Abu Taher has no legal basis. The name of the present respondent was rightly restored in the share register of the company.

The petition is dismissed.

Ed.

Source: 53 DLR (AD) (2001) 88

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