Ghose, J. - (1.) This application has been made by Raigarh Trading Co. Ltd. against Asiatic Oxygen Ltd. & ors., for inter alia, delivery of 28,500 equity shares of Rs. 10/- each in the respondent Asiatic Oxygen Ltd. (hereinafter referred to as the Company) belonging to the petitioner; in the alternative for issue of duplicate certificates for the aforesaid 28,500 equity shares of Rupees 10/- each and delivery thereof to the applicant. This application has been made, on a Judge's Summons dated 8th October, 1969 under Section 113 of the Companies Act, 1956.
(2.) In this application Surajmal Nagarmal, a partnership firm was given liberty to intervene. The said firm has also filed Affidavit. There is no dispute before me that Raigarh Trading Co. Ltd., the applicant is the registered holder of the said 28,500 equity shares of Rupees 10/- each in the Company. The only dispute before me is as to whether the Company delivered the said shares to the Petitioner. The Company alleges that the Company duly delivered the said shares to one Dinesh Chandra Sarkar representing the applicant, who in his turn delivered the said shares to M/s. Surajmal Nagarmal through Biswanath Deora as and by way of pledge for the due repayment of loans granted by. Surajmal Nagarmal to the Petitioner. On the nature of affidavit evidence it is difficult to come to any conclusion as to whether the company delivered the said shares to the applicant represented by the said Dinesh Chandra Sarkar who hi its turn pledged the same with Surajmal Nagarmal. For deciding the said fact this application has to be tried in evidence.
(3.) But, in my opinion, it is not necessary- for me to try this application on evidence inasmuch as I am of the opinion that an application for delivery of shares under Section 113 of the Companies Act, 1956 does not lie. For that the Companies Act, 1956 provides for no special remedy. A suit has to be filed for that. Section 113 of the Companies Act reads as follows :-- "(1) Every company , shall, within three months after the allotment of any of its shares, debentures or debenture stock, and within two months after the application for the registration of the transfer of any such shares, debentures or debenture stock, complete and have ready for delivery the certificate, of all shares, the debentures, and the certificates of all debenture stock allotted or transfered, unless the conditions of issue of the shares, debentures or debenture stock otherwise provide. The expression . 'transfer' for the purpose of this sub-section, means a transfer duly stamped and otherwise valid, and does not include any transfer which the company is for any reason entitled to refuse to register and does not register. (2) If default is made in complying with Sub-section (1), the company, and every office of the company who is in default, shall be punishable with fine which may extend to five hundred rupees for every day during which the default continues. (3) If any company on which a notice has been served requiring it to make good any default in complying with the provisions of Sub-section (1), fails to make good the default within ten days after the service of the notice, the Court may, on the application of the person entitled to have the certificate or the debentures delivered to him, make an order directing the company and any officer of the company to make good the default within such time as may be specified in the order; and any such order may provide that all costs of and incidental to the application shall be borne by the company or by any "officer of the company responsible for the default";