Discussion relating to Rectification of Share Register and Jurisdiction of the Court
By Anika Mardiah Chowdhury
A company is obliged to keep registers of members, which can be inspected by general public. The Companies Act, 1994 specifies how companies will keep their records and if it happens that the name of any member does not enter the register the court may rectify such register by the application of the person aggrieved.
Usually the court does not interfere to the function of companies but in certain cases the court may rectify the register if the aggrieved person applies. Also in Ahsan Karim Jinnah vs Meghna Insurance Company Limited & others 52 DLR 160, the Court held that the jurisdiction of the Company Court is sufficiently wide to resolve the question of rectification of the register of members.
“Register” When may be Rectified-
Section 43 of the companies Act, 1994 states that where the name of any person is without enoughcause entered in oromitted from the register of a company.Or, when any person become member and in such case default or unnecessary delay takes place in entering his nameto the register.Then an application may be made to court for rectification of register.
Who can Apply for such-
If the mentioned following fact arises thena) the person aggrieved, b) Or any member of the company, c) Or the company itself. Hereby the person aggrieved means a person who claims to have become a member but whose name has not been entered in the register may make an application as well as mentioned in the case Matiour Rahman vs. Dhaka Stock Exchange Ltd. 55 DLR (1999) 530.
Maintainability of Application-
After filling an application for rectification, the court may either refuse the application or may order for rectification of the register and may also make such order as costs as it may consider proper. In the case of Mohiuddin Ahmed vs. Lutfur Rahman 44 DDLR 48 stated that maintainability of the application before the company court for rectification of register is a discretion of the court to see whether the point at issue relating to rectification of register can be resolved based on materials on record.Therefore the aggrieved party may apply to court for rectification of register but before filling an application to court the aggrieved party have to went before the arbitration tribunal as stated in the case of Matiur Rahman (Md) vs Dhaka Stock Exchange Ltd and another 51 DLR 530 that the application under section 43 of the Companies Act for the rectification of the Members Register is held to be not maintainable as the said matter if not been earlier referred to the Arbitration Tribunal as provided in section 12 of the Ordinance and/or as stipulated in Article 66 of the Articles of Association of the Chamber of Commerce. And the same can also be seen in Ibrahim Cot in Mille Ltd and others vs. Chittagong Chamber of Commerce and Industry and others 51 DLR 538.
Court’sJurisdiction over Rectification-
The application under section 43 of the following Act is a special proceeding under a statutory jurisdiction therefore it cannot be brought under rule 2 order XI of the code of civil procedure. The jurisdiction of the company court is sufficiently wide to try this, both the civil court and the High Court Division exercising its jurisdiction under section 43 of the Companies Act, 1994 may rectify a share register.But whenever the disputes involve complicated question of fact the company court may refuse to exercise its jurisdiction therefore it depends upon the judges concerned. The court when making an order for rectification of the register shall by its order direct notice of rectification to be filed with the Register within fifteen days from the date of completion of the order as per section 44 of the Companies Act, 1994.
It is to be mentioned that rectification of shares cannot be granted when Petitioner files a case for winding up the company. The two prayers cannot be entertained together as can be seen in Md. Ismail Siddique vs. M/S Crescent Apparels 43 DLR 99.
Evidence Required for Rectification of Register-
The application for rectification of register is not a simple process which will adjudicate summarily rather it will adjudicate after taking expert advise as to the signatures appearing in the original documents as mentioned in Nurun Nahar Zaman vs. Sea Pearl Lines Ltd (civil) (2006) 111. Therefore, it would be wise for the aggrieved person to submit all the original copies to win his case.
Application for Damages-
Section 43(3) of the Companies Act, 1994 gives the court power to award damages while rectifying the register however if the party does not apply for damages at the time of rectification, he may file a fresh civil court for realisation of damages under Oder II Rule 2 of the code of Civil Procedure. This suit for damages will not barred by law as the rectification of register under section 43 were an application not a suit.
Can Appeal lies or not-
The companies Act though precluded appeals from judgment and orders but there is an exception for sections 43, 228 and 285. Therefore, an appeal lies against the order and judgment under section 43 also can be seen in Jabed Ali vs. Sultan Ahmed (1974) 26 DLR 196.
Lastly, under this provision the court may also decide any question relating to the title of any person who is party to the application. Though the section is clear about rectification of register to award damages and title but this provision is not clear about rectification of share register by way of specific performance of contract and there are no case laws which gives a clear view in this regard.