SMT MOHADEVI Vs. MOTIRAM ROSHAN LAL COAL CO

JUDGEMENT

(1.) This, in my judgment, is a very clear case excepting on one point. There is an application under Section 38, Companies Act, primarily directed against the company itself for the rectification of the share register. In the first place I should like to observe that on 1 December of last year, I made the following order on the first application of Srimati Mohadevi: The following issue will be tried under Section 38, Companies Act. Whether the document dated 22 April, 1927, purporting to be a transfer of shares in the Motiram Roshan Lai Goal Co., Ltd., was executed by the Hindu firm Sagar Mall Subhkarart or by one of them on behalf of the said Hindu firm?

(2.) This order in a sense has become infructuous as the parties, although they expressed the desire to examine witnesses, have now failed to do so, and I am thrown back to the position of deoiding the original application on affidavit evidence. I have mentioned the facts set out above in connexion with the argument addressed to me by Mr. Mahabir Prasad appearing on behalf of the company to the effect that my powers under Section 38 are discretionary, and that in the circumstances of the case, which will appear from the observations I am about to make, I should refuse to exercise my discretion in favour of the applicant, and refuse to decide the points at issue and leave the applicant to her remedy in a suit. Whether I should or should not exercise my discretion in the sense of the argument advanced is the one point of difficulty which I find in the case. When once I have decided that question, the matter becomes very plain. When I made the order in December 1938, it was stated by the parties that they intended to call witnesses, as I have already stated, and that the petitioner Srimati Mohadevi was to be examined on commission.

(3.) The respondents intimated, as I understood, that they proposed to call witnesses in the ordinary course and stated (as my memory goes) they had not yet decided and could not put the Court into possession of the list of witnesses. Now, when once the order was made that witnesses should be examined orally, the parties were entitled to call such witnesses as they thought proper in the circumstances. At a later date it was stated that the petitioner could not be examined on commission and that reliance was going to be placed upon affidavits only. At a very late stage, in fact the date before the case came on for hearing, the respondents asked for time in order to ascertain what witnesses they should call. This application was refused because, as I have already indicated, there was no obligation to the parties to give a list of witnesses and the respondent company had ample time to make up its mind as to the witnesses which they desired to call. As I have already said, the respondents application was refused, and I have very grave doubts about the bona fides of that application. That is all I propose to say as regards that.