Kalyan Jyoti Sengupta, J - (1.) This is an application for amendment of the plaint taken out by the plaintiff, according to the plaintiff this has been taken out in view of subsequent disclosure of certain fact by one Sabitendru Nath Roy being the defendant No. 4, who is said to have stated in his affidavit, dated 10th February 1995, in connection with an interlocutory application that 250 ordinary shares of the defendant No. 1 had been transferred by Gajendra Kumar Mitra, since decreased, in his lifetime in favour of the defendant Nos. 4,5,6 and 7. According to the petitioner the aforesaid fact was not within his knowledge and he came to know from the said affidavit, dated 10th February, 1995. To challenge the aforesaid transfer of shares by late Gajendra Kumar Mitra the proposed amendment is necessary. Mr. Jayanta Mitra Senior Advocate submits that the aforesaid transfer was wholly fraudulent and result of suppression of fact, inasmuch as his client had no means to know transfer of the said shares. Therefore, question of limitation do not arise in this case, in view of the provision of Section 17 of the Limitation Act 1963.
(2.) His further contention is that, the proposed amendment does not material) change the nature and character of the plaint as his clients have already challenged the other transfer of shareholding and also questioned the mode and style of management and affairs of the defendant No. 1 company. His further contention is that whether this Court will ultimately grant any relief to his clients on the proposed amendment or not 2002(4)ICC Mridula Ghosh v. Mitra & Ghosh Publishers Co. Pvt. Ltd. (Cal.) 175 cannot be subject matter for adjudication and decision of the amendment application. He however, is very candid to say that relief for rectification of share register cannot be granted by this Court and this can only be done by Company Law Board, constituted under the Companies Act 1956. However, relief for declaration of transfer of shares being illegal, invalid and fraudulent, which is substantial one, can be granted by the Civil Court and jurisdiction to that extent cannot be and has not been excluded by the Companies Amendment Act, whereby amongst other the Company Law Board has been constituted.
(3.) It is not too late to entertain and allow this proposed amendment inasmuch as the defendants are yet to file written statement.;