Krishna Rao, J.:

1. The defendant no.1 has filed the present application being G.A.No.7 of 2022 praying for rejection of plain under Order VII Rule 11 of the Civil Procedure Code, 1908.

2. The plaintiff has filed the present suit in C.S. No.109 of 2018 praying for the following relief(s):-

"(a) Declaration that the defendant no.6 of which the plaintiff is a shareholder is the absolute lawful owner of the said property being Premises No.201, 202 and 2023, Old China Bazar Street, Kolkata – 700001 morefully described in the Schedule written hereunder free from all encumbrances, charges, liens, attachments, whatsoever;

(b) Order for delivery of vacant, peaceful and khas possession of the said property being premises Nos. 201, 202 and 203 Old China Bazar Street, Kolkata – 700001 morefully described in the Schedule written hereunder to the defendant no.6;

(c) Declaration that the defendant No.1 has no right, title or interest in the said property being the premises No.201, 202 and 203 Old China Bazar Street, Kolkata – 700001 morefully described in the schedule hereunder;

(d) Declaration that the defendants Nos.2 and 3 had also never acquired and could not have acquired any right, title or interest in the said property morefully described in the schedule hereunder;

(e) Declaration that any arrangement between the defendant no.2 and the directions of the defendant no.6 for mortgaging the Schedule property in favour of the defendant no.3 was unauthorized, illegal, null and void;

(f) Perpetual injunction restraining the defendant no1, its agents servants and assigns from in any manner dealing with or disposing of or encumbering any part or portion of the suit property and/or changing the nature and character of the suit property as morefully described in the schedule hereunder;

(g) Declaration that all sale, mortgage and/or any other form of transfer of right, title and interest of the said property being premises No.201, 202 and 203 Old China Bazar Street, Kolkata – 700001 since the time when the defendant No.6 became the owner of the said property by way of the registered conveyance deed 31st March 1986, are illegal, null and void;

(h) All documents of sale, mortgage and/or transfer of any right, title and interest in the said premises No.201, 202 and 203, Old China Bazar Street, Kolkata – 700001 since the defendant No.6 became the owner of the said property by the registered conveyance dated 31st March 1986, be adjudged void, delivered up and cancelled;

(i) Declaration that all resolutions of board meeting and/or general meeting that the defendants may rely upon and/or disclose in connection with and/or in aid of transfer, mortgage or the like of the said premises Nos.201, 202 and 203, Old China Bazar Street, Kolkata – 700001 by the defendant no.6, are illegal, null and void;

(j) The defendants be directed to disclose on oath full particulars of all dealings and transactions by way of sale, mortgage or other form of transfer of the Premises Nos.201, 202 and 2023, Old China Bazar Street, Kolkata – 700001 since the purchase of the said property by a registered deed of conveyance dated 31st March, 1986;

(k) An enquiry be made into damages and decree be passed for such sum as may be found due and payable upon such enquiry and in favour of such defendants as may be found entitled for compensation;

(l) Declaration that any general meeting of the company held subsequent to 29th September, 2015 authorizing the company and/or directors to file an application to strike off its name from the register of companies maintained by the Registrar of Companies, West Bengal, are null and void and not binding on the company and its shareholders including the plaintiff;

(m) Perpetual injunction restraining the defendants Nos.4 and 5, their agents, servants and assigns from acting as directors of the defendant no.6 and/or intermeddling in the affairs of the said defendants;

(n) A declaration that all purported Board Meeting and all purported resolutions of the Board of Directors of the company at the Board meeting held on 21st June 2016 be declared null and void and not binding upon the company and its shareholders including the plaintiff;

(o) The defendant no.1 to 5 jointly and/or severally be directed to pay the compensation to the plaintiff to the proportion to its share in the defendant no.6 comparing to the total paid up capital against the present market value of the premises no.201, 202, and 203 Old China Bazar Street, Kolkata-700001."

3. The defendant no.1 says that the defendant no.1 is the owner of the suit property and has acquired the said property pursuant to an auction conducted by the Recovery Officer, Debts Recovery Tribunal-I, Delhi on 14th September, 2010 in execution of a Recovery Certificate dated 5th January, 2009 in O.A. No.12 of 2007 against the recovery of dues payable by the defendant no.2 to the defendant no.3.

4. The defendant no.1 says that the plaintiff has averred that it has 7.97% shareholding in respect of the defendant No.6 on account of previous ownership in one Gaylord Company Private Limited being amalgamated with the plaintiff company pursuant to scheme for the same being approved by the Hon’ble Court on 7th March, 1994 in C.P. No.26 of 1994.

5. He submits that a bare perusal of the share certificates would show that the share certificates are still in the name of the Gaylord Company Private Limited and as such, the only right the plaintiff possess apropos the defendant no.6 is to have the shares in the name of Gaylord Company Private Limited transferred in its name. Till such change is made, the plaintiff cannot exercise any further right in respect of such shares.

6. The defendant no.1 further says that the defendant no.1 is a bonafide purchaser for value of the suit property sold by way of an auction conducted by the Debts Recovery Tribunal – I, Delhi on 14th September, 2010 and such auction was conducted pursuant to an Original Application filed by the defendant no.3 under the provisions of the RDDBFI Act, 1993.

7. The defendant no.1 says that the suit filed by the plaintiff is barred under Section 18 of the RDDBFI Act, 1993. He further submits that as per the provision of Section 20 of the RDDBFI Act, 1993, there is a provision of an appeal and if any person is aggrieved, he has to approach the Appellate Authority.

8. The defendant no.1 submits that the claim made by the plaintiff with regard to right, title and interest of the suit property has already been sold by way of an auction in terms of the order passed by the Tribunal and as such the remedy of the plaintiff lies before the DRAT and there is a bar of this Court to entertain the suit filed by the plaintiff under Section 18 of the said Act. He submits that as there is a bar under Section 18 of the RDDBFI Act, 1993 and as such, the plaint filed by the plaintiff is liable to be rejected under Order VII Rule 11 of the Civil Procedure Code, 1908.

9. The Counsel for the defendant no.1 submits that no specific particulars of fraud have been pleaded by the plaintiff. He submits that the plaintiff prays for setting aside the sale conducted in 2010 citing undervaluation in such sale by relying upon the valuation obtained in 2018. He submits that the same is absurd and further demonstrates the illusory and without any material basis. He submits that all other particulars of fraud are merely illusory and such pleadings of fraud would not deter this Hon’ble Court from nipping the plaint at its bud for being barred by law.

10. He submits that merely using the words fraud/fraudulent without any specific particulars with respect to the fraud by way of clever drafting, to get rid of the bar of the suit under Section 18 of the RDDBFI Act, 1993 would still warrant the interference of this Court’s jurisdiction under Order VII Rule 11 of the Civil Procedure Code, 1908.

11. Learned Counsel for the defendant no.1 submits that the plaintiff failed to disclose any cause of action by way of which the right of the plaintiff with respect of the defendant no.6 could be established.

12. The Counsel for the defendant no.1 in support of his submission has relied upon the judgment reported in (2022) 12 SCC 641 (Rajendra Bajoria and Ors. vs. Hemant Kumar Jalan and Others) and submitted that under Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. He relies upon the judgment reported in (2020) 7 SCC 366 (Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead through Legal Representatives and Others) and submitted that “Cause of action” means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.

13. He relied upon the judgment reported in (2020) 13 SCC 143 (Canara Bank vs. P. Selathal and Others) and submitted that the Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fasttrack procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. He has relied upon the judgment reported in 2022 (2) SCC 573 (Electrosteel Castings Limited vs. UV Asset Reconstruction Company Limited and Others) and submitted that merely using of word “fraud”/“fraudulent” without any specific particulars with respect to fraud by way of clever drafting to get out of the bar of the suit under section 18 of the RDDBFI Act, 1993 would still warrant the interference of the Hon’ble Court’s jurisdiction under Order VII Rule 11 Code of Civil Procedure.

14. The Learned Counsel for the defendant no.1 submits that the suit filed by the plaintiff is not having cause of action and is barred by law and as such the suit filed by the plaintiff is required to be dismissed.

15. Per contra, Learned Counsel for the plaintiff submits that one Gaylord Trading Company Private Limited was the owner of 15500 equity shares of the defendant no.6 and by virtue of the Scheme of Amalgamation which was approved by this Court by an order dated 7th March, 1994. The said Gaylord Trading Company Private Limited got amalgamated with the plaintiff’s company. He submits that it is by operation of law, all assets and liabilities including 7.97% shares held by Gaylord Trading Company Private Limited in defendant no.6 company stood transferred and vested upon the plaintiff who became a shareholder of the defendant no.6 company holding 15500 equity shares which is approximately 7.97% of paid up share capital of defendant no.6.

16. He submits that by a dint of the order passed by this Court dated 7th March, 1994, the shares of the defendant no.6, namely Chandan Construction Private Limited held by Gaylord Trading Company Private Limited stood transferred to the plaintiff’s company with effect from 1st April, 1992. He submits that the name of the defendant no.6 company was struck off from the Register of Companies as maintained by the Registrar of Companies, West Bengal and it is the plaintiff in exercise of its right as a shareholder has filed the application before the National Company Law Tribunal for restoration of defendant no.6 company and pursuant thereto, the order passed by the National Company Law Tribunal, the name of the defendant no.6 company was restored.

17. The plaintiff says that the fact that the defendant No.6 had not recorded on the share certificate the said 15500 shares in the name of the plaintiff will not extinguish the right, title and interest of the plaintiff on the said shares. He submits that the plaintiff became owner of the said shares by virtue of the order passed and by operation of law. He submits that recording the name of the plaintiff company in the share scripts is an administrative work in the absence of which the right of the plaintiff company on the said shares cannot be questioned.

18. The plaintiff says that from a conjoint reading of Sections 17 and 18 of the Debts Recovery Tribunal Act, 1993 and Section 34 of the SARFAESI Act, 2002, it is evident that the bar to entertain the suit exists in respect of matters which the Tribunals is empowered by or under the said Act to determine. Only those actions which are covered under the said Acts can be the subject matter of the proceedings before the Tribunal.

19. Learned counsel for the plaintiff submits that in an application for rejection of the plaint, only the averments made in the plaint and the documents annexed with the plaint are to be relied upon. The merit of the plaintiff’s case or the defence cannot be the subject matter for consideration while considering an application for rejection of plaint. He submits that whether the plaintiff will be at all successful in proving the allegations made in the plaint is not to be considered at this stage.

20. Learned Counsel for the plaintiff submits that there are specific allegations made in the plaint against the defendant nos. 4 and 5 who are the directors of the defendant no.6 company. Action of the defendant nos.4 and 5 are challenged inasmuch as the said property which was shown in the Balance Sheet of the defendant no.6 as on 31st March, 2015 to the value of Rs.19,30,000/- over a period of one year had been shown as destroyed and obsolete. He submits that the defendant nos.4 and 5 in collusion with the defendant nos.1 and 2 have perpetrated fraud upon the other owners of the property. The property at all material points of time stood in the name of the defendant no.6 company and the same is allegedly mortgaged to the Financial Institution by defendant no.2 representing itself as the owner of the same immovable property. He submits that the plain case appears that frauds have been perpetrated by the person who is in control of the defendant no.6 company. The defendant nos.4 and 5 are in collusion and connivance with the other defendants and those particulars of fraud are detailed in paragraph 40 of the plaint. He submits that the Board Meeting of the defendant no.6 was done at the behest of the defendant no.4 and 5 without proper sanction and without due notice to call the members to attend the said meeting.

21. Learned Counsel for the plaintiff submits that on a meaningful reading of the whole plaint, it is clear that the same discloses cause of action for the plaintiff to file the instant suit. The plaintiff has claimed for declaration that the arrangement between the defendant no.2 and the directors of defendant no.6 for mortgaging the said property in favour of the defendant no.3 is illegal and for declaration that the board resolution and purported general meetings of defendant no.6 is null and void. He submits that the said issue raised by the plaintiff cannot be decided or adjudicated by the DRT.

22. Learned Counsel for the plaintiff submits that the plaint cannot be partly rejected against any particular defendant. The cause of action is a bundle of facts which give right to a party to initiate a legal proceeding against the wrongdoer. This has also to be ascertained from the entire reading of the plaint.

23. Learned Counsel for the plaintiff relied upon the judgment reported in 2017 (1) SCC 622 (Robust Hotels Private Limited and Others vs. EIH Limited and Others) and submitted that the scope and ambit of Section 34 of the SARFAESI Act, 2002 have been considered by this Court in every cases. It is sufficient to refer to the judgment of this Court in 2009 (8) SCC 646 (Nahar Industrial Enterprises Limtied vs. Hong Kong and Shanghai Banking Corporation). The Supreme Court held that the jurisdiction of the civil court is plenary in nature, unless the same is ousted, expressly or by necessary implication, it will have jurisdiction to try all types of suits.

24. He relied upon the judgment reported in 2020 (17) SCC 260 ( Shakti Bhog Food Industries Limited vs. Central Bank of India and Another) and submitted that Order VII Rule 11 of Code of Civil Procedure, 1908, makes it clear that relevant facts which need to be looked into for deciding the application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purpose of deciding the application under clauses (a) and (d) of Rule 11 of CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore a direction to file written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.

25. He relied upon the judgment reported in 2019 (7) SCC 158 (Madhav Prasad Aggarwal and Another vs. Axis Bank Limited and Another) and submitted that the plaint has to be rejected as a whole or not all, in exercise of such power under Order VII Rule 11 (d) of CPC. The plaintiff relied upon the judgment reported in 2005 (10) SCC 51 (Swamy Atmananda and others vs. Sri Ramakrishna Tapovanam and others) and submitted that the “cause of action” as the fact or combination of facts which give rise to a right or action. The “cause of action” which means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court.

26. The Counsel for the plaintiff submitted that the plaintiff has pleaded sufficient cause of action and the suit is not barred by law. He submits that only the defendant no.1 has filed the instant application for rejection of the plaint but other defendants, in spite of service of notice, have not appeared and have not filed any application for rejection of the plaint though the plaintiff has prayed for several reliefs against several defendants and as such the plaint cannot be rejected in part on the prayer of the defendant no.1.

27. Heard the Learned Counsel for the respective parties and perused the pleadings, materials on record and the judgments relied upon by the parties. Sections 17 and 18 of the Debts Recovery Tribunal Act, 1993 reads as follows:

“17. Jurisdiction, powers and authority of Tribunals.— ( 1) A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions.

(1A) Without prejudice to sub-section (1),—

(a) the Tribunal shall exercise, on and from the date to be appointed by the Central Government, the jurisdiction, powers and authority to entertain and decide applications under Part III of Insolvency and Bankruptcy Code, 2016 (31 of 2016).

(b) the Tribunal shall have circuit sittings in all district headquarters.

(2) An Appellate Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain appeals against any order made, or deemed to have been made, by a Tribunal under this Act.

(2A) Without prejudice to sub-section (2), the Appellate Tribunal shall exercise, on and from the date to be appointed by the Central Government, the jurisdiction, powers and authority to entertain appeals against the order made by the Adjudicating Authority under Part III of the Insolvency and Bankruptcy Code, 2016 (31 of 2016).

18. Bar of jurisdiction.—On and from the appointed day, no court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under articles 226 and 227 of the Constitution) in relation to the matters specified in section 17: 1 [Provided that any proceedings in relation to the recovery of debts due to any multi-State co-operative bank pending before the date of commencement of the Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2012 (1 of 2013) under the Multi-State Co-operative Societies Act, 2002 (39 of 2002) shall be continued and nothing contained in this section shall, after such commencement, apply to such proceedings.]

Section 34 of the SARFAESI Act, 2002 reads as follows:

“34. Civil Court not to have jurisdiction. - No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).”

28. One Gaylord Trading Company Private Limited was the owner of 15500 equity shares in defendant no.6 company. The said Gaylord Trading Company Private Limited was amalgamated with the plaintiff’s company by the scheme of amalgamation sanctioned by this Court under Section 391 and 349 of the Companies Act, 1956 in C.P. No. 26 of 1994 by an order dated 7th March, 1994. Pursuant to the said scheme of amalgamation, Gaylord Trading Company Private Limited is one of the transferor companies along with other transferor companies had merged and amalgamated with the plaintiff’s company. In view of the order passed by this Court dated 7th March, 1994, the plaintiff has become one of the shareholder of the company and holds 15500 equity shares in the company i.e approximately 7.97% of the Issued, Subscribed and Paid up Share Capital of the company.

29. Though by an order of this Court dated 7th March, 1994, the company was amalgamated but the name of the plaintiff company was not recorded as shareholder of 15500 equity share. The name of the defendant no.6 was continued in the share of the plaintiff. The defendant nos.4 and 5 have all point of times been taking necessary steps for and on behalf other partners so as to have the said property tenant-free and have also been looking after the affairs of the company albeit the business of the company i.e. the said property and its future development thereof.

30. The last annual return of the company filed with the Registrar of Companies reflect the predecessor-in-interest of the plaintiff to be holding 15500 equity shares i.e. 7.97% shares of the company. The shares of the other partners of the company are also reflected in the said annual returns.

31. As the plaintiff did not receive any annual statements of accounts or the auditor’s report for the year 2015-2016, the plaintiff has enquired about the same from the defendant nos.4 and 5, the defendant nos. 4 and 5 has not given any satisfactory reply to the plaintiff. Accordingly, the plaintiff has caused enquiry from the office of the Registrar of Companies wherefrom the plaintiff came to know that the company’s name has been struck off and accordingly, the plaintiff, being a shareholder has filed an application being C.P. No. 316(KB) of 2017 before the Tribunal under Section 252(3) of the Companies Act praying for a direction upon the Registrar of Companies to restore the name of the company namely Chandan Construction Pvt. Ltd, the defendant no.6 herein and allied prayers. On receipt of the application from the plaintiff, notices were issued and from the affidavits filed by the Registrar of Companies, the plaintiff came to know that the name of the company has been struck off from the Register of the Companies pursuant to an application made on behalf of the directors of the company on 27th August, 2016 for sticking off name of the company under the Fast Track Exit (FTE) Mode for defunct company under Section 560 of the Companies Act, 1956.

32. The specific case has been made out by the plaintiff in paragraph 34 of the plaint wherein it has been mentioned as follows:-

“34. Shocked with such disclosure made by the Registrar of Companies in January 2018, and especially the fact that the company holds no asset, the plaintiff caused searches to be made with the Registrar of Assurances, Kolkata as to the status of the said property. During such searches, the plaintiff obtained a certified copy of an alleged certificate of sale issued by the Office of the Debts Recovery Tribunal-I Delhi in terms whereof one Ratnankar Commercial Private Limited being the defendant no.1 appears to have purchased the said property from M/s S.B. International Limited being the defendant no .2 herein who appears to have represented itself as the owner of the said property. The said property appears to have been sold by way of auction on 14th September 2010 in execution of a Recovery Certificate dated 5th January, 2009 in O.A.12 of 2007 issued by the Presiding Officer, Debts Recovery Tribunal-I, Delhi for recovery of dues payable by the defendant no.2 to IREDA(defendant no.3).”

33. The plaintiff came to know that the property has been sold by way of an auction on 14th September, 2010 in execution of a Recovery Certificate in O.A. No.12 of 2007 issued by the Presiding Officer, Debts Recovery Tribunal-I, Delhi for recovery of dues payable by the defendant no.2 only in the month of January 2018 when the Registrar of Companies had disclosed the said fact.

34. The plaintiff has made out the specific case of fraud committed by the defendant at paragraph 40 & 41 of the plaint which reads as follows:

“40. There was also no occasion to mortgage the said property since the defendant no.6 never required any kind of fund nor was any money received by the defendant no.6 as would be evident from the audited annual statements of accounts. The audited annual statements of accounts also do not reflect any liability in the form of loans or credit facilities from IREDA, i.e. the defendant no.3 herein or any other bank, non-banking companies or the like. At all the material times, the company’s annual statements of accounts reflects ‘NIL’ liability save and except some petty trade payable. Thus, there appears to be a fraud perpetrated by the partners in control of the company and essentially the defendants No.4 and 5 in collusion and conspiracy with the other defendants, some particulars whereof which the plaintiff has been able to ascertain are summarized below:

i. By way of certain underhand dealings and transactions not reflected in the company’s books of accounts and records, the said property belonging to the company appears to have been transferred directly or indirectly to the defendant no.2 and through the defendant no.2 to defendant no.1;

ii. Through some underhand dealings and transactions not reflected in the accounts and records of the company, the defendants Nos. 4 and 5 appear to have entered into dealings and transactions with the other defendants with the ultimate object of causing the said property to be transferred;

iii. By subterfuge and the like, the defendant No.2 has claimed ownership of the said property and derived benefits therefrom by way of obtaining loan and/or effecting transfer of the said property;

iv. The defendant No.3 and/or its officers were in obvious collusion with the defendants No.4 and 5 or else the said property belonging to the defendant Mo.6 company could not have been transferred and/or dealt with treating the same as if owned by the defendant No.2;

v. Despite the said property being shown as an asset of the company even as on 31st March 2015, the Jhanwars in the Statements of Accounts signed by them and in their affidavits filed along with FTE application filed in August 2016 have shown the company to have ‘NIL’ asset.

vi. The Jhanwars have caused to manipulate and/or forge the books of accounts of the company which were placed before M/s C.Ghatak & Co. Chartered Accountants and on the basis of which they gave an audit certificate recording that the assets of the company, the said property which was shown as an inventory in the Books of Accounts of the Company as on 31st March 2015 to have become ‘NIL’ as of 31st March 2016 on the basis that the same was ‘destroyed and became obsolete’;

vii. From the conduct of the Jhanwars, it is presumed that the Books of Accounts which were furnished by the Jhanwars to the Chartered Accountants had been manufactured and manipulated to show that the said property of the company which was very much shown as inventory of the company in March 2015 had become destroyed or became obsolete by March 2016;

viii. That the transaction is fraudulent and dishonest is further evident from the fact that the defendants No.4 and 5 deliberately kept it under cover by filling false Annual Statements of Accounts comprising Profit & Loss Account and the Balance Sheet along with the notes on accounts year after year so as to not led the plaintiff to discover the fraud;

ix. Such purported sale, transfer or disposition of the property is not reflected in the contemporaneous Balance Sheets of the company at any point of time;

x. The Jhanwars taking advantage of their position as directors of the company and persons who are given the right to manage the company by other partners in the company, including the plaintiff herein, have siphoned out the only asset of the company without the company benefitting even a single penny. It is obvious that the transaction by which the said property has been siphoned out is for the personal benefits of Jhanwars and to the exclusion of the other partners being the shareholders of the defendant No.6 company;

xi. Such fraud has been perpetrated not only upon the plaintiff and other shareholders of the defendant no.6 but also upon the Registrar of Companies in as much as the Jhanwars have caused to have filed the FTE application making false and incorrect statements to mislead the Registrar of Companies to strike off the company under the provisions of Section 560 of the Companies At, 1956.

xii. That the said property was sold in a purported public auction for only Rs.2 crores as against the real value of the said property even if tenanted is Rs.20 crores clearly goes to show that the public auction was charade and got up and transfer to the defendant no.1 was a part of the fraudulent scheme hatched by the defendant No.4 and 5 in collusion with the others to have the said property transferred from the company behind the back of the other shareholders and essentially the plaintiff in such a manner that the ultimate transferee reaps the actual profit by way of developing the said property.

41. The plaintiff therefore states that the dealings and transactions of the said property since the time the company became the owner of the property are illegal, null and void and if left outstanding would cause substantial loss.”

35. This Court also perused the prayer made by the plaintiff in the plaint and finds that the plaintiff has not prayed for any relief for declaring the sale made on auction as per the order passed by the DRT, to be declared as null and void or set aside. The plaintiff has claimed the right, title and interest of the property in terms of the order passed by this Court dated 7th March, 1994. Considering the above facts, this Court finds that the plaintiff has made out a specific case of fraud and the same is to be adjudicated by this Court only.

36. This Court is also of the view that the plaintiff has not challenged the auction proceeding initiated in terms of the order passed by the DRT thus as such Section 34 will not be applicable in the present suit. As regards cause of action, the plaintiff has categorically made out the case in paragraph 34 that in the month of January, 2018, the plaintiff came to know from the disclosure made by the Registrar of Companies that the company holds no assets and thereafter the plaintiff has caused search with the Registrar of Assurance with regard to the status of the property and during search, the plaintiff obtained certified copy of the alleged certificate of sale issued by the office of the DRT.

37. This Court also finds that the plaintiff came to know about the certificate of sale in the year 2018 and the plaintiff has filed the suit in the year 2018 itself and as such neither it can be said that the suit filed by the plaintiff is barred by limitation or there is no cause of action.

38. The concept of “member”, “shareholder”, and “holder of the share” as appeared in the Companies Act, 1913 and 1956 came up for consideration in the case of M/s Howrah Trading Company Limited vs. The Commissioner of Income Tax reported in AIR 1959 SC 775 wherein it has been held that “the words “members”, “shareholders” and “holder of the share” have been used interchangeably in the Companies Act. The words "holder of a share " are really equal to the word shareholder and the expression "holder of a share” denotes, in so far as the company is concerned, only a person who, as a shareholder, has his name entered on the register of members.”. The right of a transferee is only to call upon the company to register his name and no more. No rights arise till such registration takes place. The completion of transaction by having the name entered in the register of members relates it back to the time when the transfer was first made.

39. In the present case, in terms of the order passed by this Court in C.P. No. 26 of 1994 dated 7th March, 1994, shares of the defendant no.6 amalgamated with the plaintiff but the same was not recorded/transferred in the record of Register of Companies. The said fact was within the knowledge of the defendant nos. 2, 4 & 5 but in spite of having knowledge, defendant nos. 2, 4 & 5 have mortgaged the said property to the defendant no.3. The defendant nos. 2, 4 & 5 have taken the benefit of not recording the name of the plaintiff in the share holding register though there is an order of the Court which was suppressed before the defendant no.3 at the time of mortgaging the property.

40. The contention made by the defendant no.1 is that the plaintiff has made averment of fraud only by a clever drafting and has not made any specific averment cannot be sustained. In the case of Nahar Industrial Enterprises Limtied vs. Hong Kong and Shanghai Banking Corporation reported in 2009 (8) SCC 646, the Hon’ble Supreme Court held that “it must be remembered that the jurisdiction of a civil court is plenary in nature. Unless the same is ousted, expressly or by necessary implication, it will have jurisdiction to try all types of suits.”

41. In the case of Dhulbhai and others vs. The State of Madhya Pradesh and another reported in 1969 SC 78, the Hon’ble Supreme Court held that “the result of this inquiry into the diverse views expressed in this Court may be stated as follows :-

"(1) 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.

(2) 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 thereafter remedies normally associated with actions in Civil Courts are prescribed by the said statute or not."

42. In the present case, the specific case of fraud has been pleaded which is to be adjudicated by this Court. It is settled law that the fraud cannot be decided by the DRT. It is also a fact that the plaintiff is not the party before the DRT. The property of the plaintiff was mortgaged by the defendant nos. 2, 4 to 5 by suppressing the order passed by this Court dated 7th March, 1994. The plaintiff came to know about the said fact in the year 2018 and accordingly, the plaintiff has filed the present suit.

43. Considering the above facts and circumstances, this Court finds that the plaintiff has a cause of action and has specifically pleaded fraud which is to be adjudicated by this Court and the plaintiff has not prayed for any relief against the auction process of the Debts Recovery Tribunal. This Court also finds that only the defendant no.1 has filed the present application though there are altogether six defendants and the none of the other defendants has come forward for filing an application for rejection of the plaint.

44. This Court also finds that the plaintiff has made several prayers in the suit which cannot be decided by the Appellate Authority of the Debts Recovery Tribunal. The said issue is to be decided by this Court. If at all, the plaintiff prays for any order against the action of the DRT that may not be granted by this court and only for that purpose this Court cannot reject the entire plaint as the plaintiff has prayed for several reliefs which is to be decided by this Court.

45. In view of the above, G.A No.7 of 2022 is dismissed.