1. Defendants No. 1 and 2 are the petitioners against the order dated 18.2.2002 passed by the Subordinate Judge II, Sheikhpura, in Title Suit No. 18 of 1995, rejecting their applications dated 6.12.2001 and 13.12.2001 under Order XIV, Rule 2 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) challenging the maintainability of the suit.

2. The plaintiff-opposite parties filed a suit for declaration that the appointment of defandant No. 2-petitioner as Additional Director of Barbigha Cold Storage is illegal; the appointments of Sanjiv Gupta, son of defendant No. 2 and two other persons, namely, Amoo Kumar and Janardan Singh as employees of the said Cold Storage are illegal and they are not entitled to handle any work of the Cold Storage; for grant of interim injunction restraining defendant No. 1-petitioner from making any expenses of the Cold Storage Company without the sanction of plaintiffs No. 1 and 2 and defendant No. 3; and for restraining the defendants from making any objection in the legal discharge of duty of plaintiffs no. 1 and 2 and defendant No. 3 as Director of the Company. The undisputed fact, is that the Barbigha Cold Storage (hereinafter referred to as ‘the Cold Storage’) is a registered private company under the Companies Act (for short ‘the Act’) and is in existence since 1961. Its place of business is Barbigha in the district of Munger. Its registered office is at Calcutta. The total shares of the Company are 36,004 and each share is valued at Rs. 10/- and the person qualified to be appointed as Director is required to have company shares of the value of Rs. 10,000/- i.e 1,000 shares. The vacant posts of Director and employees are filled up by the decision of the Board.

3. According to the plaintiff-opposite parties, the appointments of the Additional Director as well as the employees of the Cold Storage have been made without the decision of the Board and as such the whole process of appointments of the Addtional Director as well as the employees is illegal. The plaintiffs also alleged other mismanagement in the Cold Storage and prayed for relief with regard to the same as stated above.

4. The defendant-petitioners appeared and filed a petition challenging the jurisdiction of the suit on the ground that the matter related to the internal affairs of the Company, for which adequate provision has been made under the Act and the jurisdiction is barred under section 10 of the Act. It is also stated that the competent court to decide the controversy is the court at Calcutta where Head Office of the Cold Storage situates and not the Sheikhpur Court, within which jurisdiction the Cold Storage falls. The other ground of challenge is that the suit was filed by plaintiffs No. 1 and 2 on behalf of the Cold Storage without the resolution of the Board and as such the same was not maintainable.

5. The plaintiffs filed a rejoinder to the said petition stating that the dispute is of civil nature and does not pertain to the internal affairs of the Company and the same is not covered by section 10 of the Act.

6. The court below, by order dated 22.1.1997 held that the suit was not maintainable, against which Civil Revision No. 289 of 1997 was filed and the same was allowed on 4.11.1997 after coming to the conclusion that the court below did not decide the question correctly as it wrongly took recourse to the provision of section 10 of the Act to hold that the suit was maintainable at Calcutta without deciding the question as to whether the suit itself was maintainable or not and the matter was remitted to the court below to consider the question afresh in the light of the observation made in the said order. Thereafter, the court below has decided the matter by the impugned order and held that the suit is maintainable.

7. Learned counsel for the defendant-petitioners submitted that the matter relates to the internal affairs of the Company, for which adequate provison has been made under the Act and as such the suit was not maintainable. In this connection, he drew my attention to section 10 of the Act and relied upon a judgment of the Calcutta High Court reported in Hirendra Bhadra v. Titwn Engineering Co. (P) Ltd., reported in Vol. LXXX Calcutta Weekly Notes 243.

8. Learned counsel for the plaintiff-opposite parties, on the other hand, submitted that the dispute between the parties is of civil nature and no adequate and efficacious remedy is provided under the provisions of the Act for redressal of the grievances made in the plaint and as such the suit is maintainable. He further submitted that the exclusion of the jurisdiction of the Civil Court is not to be readily inferred and unless it is found that either expressly or by implication the jurisdiction is excluded a suit before the Civil Court is not barred. In support of the said contention, he relied upon the judgments of the Supreme Court, which will be referred to at the appropriate stage.

9. The law is well-settled that where there is a right there is a remedy (ubi gus ibi remedium). The jurisdiction of the Civil Court is very expansive one as is evident from section 9 of the Code and its exclusion is not to be readily inferred. Unless its exclusion is barred by the statute either expressly or by implication, it has jurisdiction to entertain the suit concerning dispute of civil nature. If a statute creates a special right, liability and a forum for determination of the same and provides that all questions concerning such right and liability are to be determined by the said tribunal or forum and bars the jurisdiction of the Civil Court, then such rights and liabilities are to be determined by the Tribunal or forum created by the statute and not by the Civil Court.

10. In the case of Kamala Mills Ltd. v. State Of Bombay, reported in AIR 1965 SC 1942, a Constitution Bench of the Apex Court held as follows:—

“Whenever a plea is raised before a civil Court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. Where the exclusion of the civil Court's jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of remedies provided for by it may be relevant, it cannot, however, be decisive. But when exclusion is pleaded as a matter of necessary implication such consideration would be very important, and, in conceivable circumstances, might even become decisive. If a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by Tribunals specially constituted in that behalf and it further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, it is pertinent to inquire whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not.”

11. In the case of Dhulabhai v. State of Madhya Pradesh, reported in A.I.R 1969 S.C 78, the Apex Court, in paragraph 32, laid down the principles for exclustioh of the jurisdiction of the Civil Court. Said principles are as follows:—

“(1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil Court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court Cannot go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.

12. However, it has been said in paragraph (1) of the said principles that even if the jurisdiction is barred, but if the provisions of the particular Act have not been complied with or the tribunal has not acted in conformity with the fundamental principles of judicial procedure, the Jurisdiction of the civil court in such cases 10 entertain a dispute of such nature is not barred.

13. Recently in the case of Dhruv Green Field Ltd. v. Hukum Singh, reported in (2002) 6 SCC 416 : A.I.R 2002 S.C 2841, the Apex Court relying upon the judgments in Kamala Mills Ltd. (supra) and Lala Ram Swamp v. Shikar Chand, reported in (1966) 2 SCC 553, held that if there is express provision in any Special Act barring the jurisdiction of a civil Court, with regard to the matters provided therein, the jurisdiction shall stand excluded and if there is no express provision in the Act but an examination of the provision leads to a conclusion in regard to exclusion of jurisdiction of the civil Court, then the Court will enquire whether adequate and efficacious alternative remedy has been provided under the Act or not; if the answer is in the affirmative, the jurisdiction of the civil Court is barred, but if it is in the negative, then the jurisdiction of the civil Court is not barred. Even if the jurisdiction of the civil Court is barred expressly or impliedly if the order is a nullity, the same can be challenged in the civil Court.

14. In view of the said law, the question for consideration is as to whether the present suit is barred in view of the provisions contained in the Act or not?

15. Learned counsel appearing for the petitioners referred to section 10 of the Act, according to which the Court having jurisdiction under the Act shall be the High Court having jurisdiction in relation to the place at which the registered office of the Company concerned is situate, except in the cases where jurisdiction has been conferred on any District Court or District Courts subordinate to that High Court in pursuance of sub-section (2) of the Act. However, he, inspite of the question put to him has not been able to show that there is any provision either in the Companies Act or any of the provisions of the Companies Act vests power in the tribunal or forum in terms of section 10 of the Act to deal with the matters, complained of in the plaint. So far as the case of Hirendra Bhadra (supra), relied upon by the learned counsel for the petitioner is concerned, that was a case where the suit was filed for declaration that the resolution resolving that the Director vacated the office for contravention of section 299 of the Companies Act was binding on defendant and he was no longer Director. Dealing with the said matter, it was held that the acts, which have been complained against the petitioner of that case are all matters under the Companies Act and it was only the Court having been mentioned in section 10 of the Act, which had jurisdiction to entertain the suit and, accordingly, allowed the objection raised by the defendant-petitioner. The plaintiffs have alleged that the decision of appointment of Additional Director as well as the employees of the Cold Storage is illegal and a nullity and have also prayed for certain other reliefs. Nothing has been pointed out to show that for any of the grievances, there is adequate and efficacious remedy under the Act or recourse can be taken to the Court constituted under section 10 of the Act. In other words, the petitioners have not been able to make out a case that either by express provision contained under the Act or by necessary implication, the suit is barred nor they have been able to show that there is any adequate and efficacious remedy under the provisions of the Act with regard to the dispute raised in the plaint. The plaintiffs have alleged the action of the defendants in breach of the statutory provisions in making the aforementioned appointments. Thus, the dispute raised by the plaintiff-opposite parties is of civil nature and the court below rightly held that the suit is not barred.

16. In the result, there is no merit in this revision application and it is, accordingly, dismissed.