1. These petitions were heard together and owing to their connection which will appear from the sequel, It is convenient to dispose of them by a common order.

2. The company which is the petitioner in c. P. No. 12 and the respondent in c. P. No. 18 is called the madras - bangalore transport co. Private ltd. It was registered in 1971 with its registered office in this state. By a special resolution passed at the general meeting of the company held on july 8, 1974 it was decided to alter its memorandum of association so as to shift the registered office from this state to the karnataka state. The company has filed c. P. No. 12 under s. 17, Companies act, For confirmation of the alteration of the memorandum. One mr. K. A. Sebastian whom i will call the intervener has appeared in c. P. No. 12 to oppose it. He claimed to be a shareholder of the company but as that claim was challenged by the company, He filed c. P. No. 18 under s. 155, Companies act, For rectification of the share register.

3. In order to appreciate the situation which has occasioned c. P. 18, It is necessary to narrate a few facts the intervener was admittedly a subscriber to the memorandum of association and had agreed to take 100 fully paid up shares of rs. 100/ - each. By virtue of art. 15 of the articles of association and s. 254 of the companies act he thus became a director of the company that again is admitted by the company. The company however alleges that the intervener did not pay the share money and that in order to avoid forfeiture proceedings he. Transferred the shares to one v. Krishna reddy and resigned his directorship with effect from 1110 1972. The company's annual return made up to 10 - 4 - 1973 also reported to the registrar this transfer and resignation as appears from the affidavit of the registrar filed in c. P. No. 18. The intervener challenges the case put forward by the company, Contending that he had paid the share money although no receipt had been issued to him, That he had not transferred his shares or resigned his directorship and that he apprehends that his signature must have been forged in various papers to support the statements and entries that he had ceased to be a member and director. These rival stands were initially taken by the company and the intervener in c. P. No. 12. Subsequently the intervener filed c. P. No. 18 for rectification of the share register by including his name, Putting forward the case that he had taken in the counter - affidavit in c. P. No. 12. The company resists his prayer repeating its stand that he is no longer a shareholder or director.

4. As for c. P. No. 12, The registrar has represented that he has no objection. None except the intervener has appeared to contest the petition and his locus standi depends upon whether he is a shareholder. As it is, His name is not in the share register it had been removed so early as 1110 1972 and he does not have even the share certificate to support his claim. His locus standi and right to oppose c. P. No. 12 therefore depends upon whether the rectification of share register sought by him in c. P. No. 18 could be allowed. The dispute between him and the company, As is obvious from their affidavits involve such questions of fact as whether be did pay the share money, Whether share certificate was issued to him, Whether he transferred the shares and resigned his directorship and whether the records relating to the transfer and resignation are forgeries. These raise highly contested and some complex questions of fact which cannot be determined on affidavits or scrutiny of documents; they will necessarily mean a protracted trial including the examination of lay witnesses and even experts as the question of forgery has also been raised. It is well established that the scope of s. 155, As was the scope of s. 38 of the companies act 1913, Is restricted to a summary enquiry and that when the title to the holding of shares is challenged and complicated questions are involved the court will not enquire into them out will leave the aggrieved party to seek remedy in a civil suit. There is a chain of decisions taking this view and i need refer only to a few of them - mohideen pichai v. Tinnevelly mills co. Ltd., Air. 1928 madras 571, Mamlal v. Western india theatres ltd., Air. 1963 bombay 40, Hemalata saha v. Stadmed private ltd., (1964) xxxiv company cases 875, Mahendra kumar jain v. Federal chemical works ltd., (1965) xxxv company cases 651, And public trustee v. Rajeshwar tyagi and others, (1973) xliii company cases 371. In public passenger service ltd., V. M. A. Khadar and another, (1966) xxxvi company cases 1, Their lordships of the supreme court observed:

"now where by reason of its complexity or otherwise, The matter can more conveniently be decided in a suit, The court may refuse relief under s. 155 and relegate the parties to a suit"

though in that case it was held that the relief under s. 155 was rightly given as the only point involved was the validity of a notice of forfeiture which could well be decided summarily.

5. English law is the same as is clear from halsbury's laws of england, Volume 6, Third edition, Para. 448:

"if the court thinks that the case, By reason of its complexity or on the ground that there are matters requiring investigation or otherwise, Could more satisfactorily be dealt with by an action, The court will decline to make an order on a motion, Without prejudice to the right of the applicant to institute an action for rectification"

6. This is what is stated in palmer's company law, Page 456 (21st edition) :

"there is jurisdiction to rectify the register not only upon motion under s. 116, But in an action against the company, And this course should invariably be adopted in complicated cases."

7. Counsel for the intervener however contended that whatever complexity the trial of the intervener's claim might involve or despite the complexity 1 should proceed under s. 155 for a number of reasons. Firstly it was said on the strength of the observation "it is only the rights and liabilities which arise out of the provisions of the companies act which can be inquired into in a company petition" in 43 company cases 371 that what is involved here is a breach of s. 155 in that the intervener's name is omitted from the share register without sufficient cause. Now it is not a simple omission - the intervener denies the transfer and challenges the records as forgeries and these along with the question whether he had paid the share money, Raise complicated questions of fact, Which are inappropriate for decision in a summary enquiry under s. 155. It was next contended that if the intervener is relegated to a suit and in the meanwhile the company's registered office is shifted to karnataka, He will be involved in practical difficulties in instituting and prosecuting the suit. It is possible that he might be faced with difficulties but that circumstance will not outweigh the inconvenience of converting a summary procedure into a long drawn and complicated litigation. Further the intervener. On his own showing came to know of the omission of his name on 27 3 1974 when he inspected the file in the office of the registrar. In spite of this he chose to bring c. P. No. 18 of 1974 only on 21111974 nearly 8 months later and he should have no cause for complaint if in the meanwhile new situations have developed. Counsel next contended that the procedure under s. 155 is the sole remedy open to the intervener and he could not be referred to a suit. This contention was sought to be sustained on certain passages from harinagar sugar mills ltd, V. Shyam sundar jhunjhunwala, (1962) 2 s. C. R. 339, And certain notes on s 155 in ramaiya's guide to the companies act. In the passages cited by counsel from the supreme court case their lordships were merely pointing out that a person aggrieved by the refusal of transfer of shares has two remedies for seeking relief under the companies act (1) to apply under s. 155 and (2) to appeal under s. 111. To say that the companies act provides two remedies in such a situation is not to negative the common law remedy of a suit, Which exists de hors the act. Indeed in xxxvi ' company cases page 1 which is a later decision, The supreme court has expressly recognised the existence of the remedy by a suit and laid down where it is more appropriate. Turning to ramaiya's guide, The learned author no doubt remarks that as sub - section (4) of s. 155 contemplates the trial of an issue in an application and that as the order is not based on any summary decision "it would seem that it is no longer possible to file a separate suit in the ordinary civil court for obtaining the relief of rectification of the register, In cases coming within the jurisdiction of the court under this section. " another reason given by the author to reach this conclusion is that s. 156 provides for filing with the registrar the notice of the order of the court i. E., The court having jurisdiction under the act and not of any civil court, Whose judgment or order is not required to be notified to the registrar. The companies act, 1913 and the english act contain provisions similar to s. 156 and that has not been held to be a ground for excluding a right of suit. Nor am i satisfied that the reference to the trial of an issue in sub - section (4) which deals with the question of appeal signifies that the application under s. 155 has been converted into an exclusive remedy. Ramaiya himself notes that the position is not free from doubt and that despite the change in the language of s. 155, It has been held by several high courts that the remedy under that section is only a summary remedy and that while complicated questions are

involved, The appropriate jurisdiction is only that of the civil court. I have already referred to several decisions of the various high courts and one decision of the supreme court on this topic. For the reasons mentioned earlier, I feel that this is a fit case in which i should decline jurisdiction and leave the intervener, If so advised, To seek relief in a suit.

8. In c. P. No. 12, The registrar has no objection, The intervener has no locus standi and none else has appeared to contest. Nor is there any ground to justify its refusal.

9. I dismiss c. P. No. 18 of 1974, But without costs.

10. C. P. No. 12 of 1974 is allowed and the special resolution dated july 8,1974 is confirmed. An order in form no. 15 will be issued.