Ch. Mohd. Sharief Tariq, Member - (1.) Under consideration is the company petition that came to be filed before the erstwhile Company Law Board, numbered as C.P. No. 2 of 2015 which stood transferred to the National Company Law Tribunal and renumbered as T.C.P. No. 226 of 2016. The petition has been filed under section 111A of the Companies Act, 1956 (now section 59 of the Companies Act, 2013). The grounds set out for seeking reliefs have been given in details in the petition. Based on the grounds, the reliefs sought for, are as follows: (i) Pass an order directing the first respondent-company to effect the transmission of 45 numbers of equity shares in the name of the petitioner covered under share certificate Nos. 101 and 104 by recording the same in the share register of the company in the name of the petitioner. (ii) Pass an order directing the first respondent-company and its board to rectify the share register incorporating the above transfer of shares in the name of the petitioner. (iii) The costs of this company petition and the incidental expenses incurred thereto by the petitioner may be directed to be paid by the contesting respondents. Counsel for the respondent has filed counter in the main petition. The main objection raised by the respondent-company is that since attachment of shares is ordered by the court, under law, the respondent cannot accede to the request of the petitioner for transmission of shares. The other objections are pertaining to non-production of the original share certificates, power of attorney and that the request for transmission of shares has been made only through counsel and not by the claimant himself, etc. Counsel for the petitioner has produced a copy of the order that came to be passed by the Special Judge, SPE/CBI-II, Ernakulam dated May 9, 2017 in Crl. M.P. No. 289 of 2017 in C.C. No. 6 of 2002, wherein the order of attachment passed by the court on the shares held by Dr. T.M. Paul has been lifted. Now, after the order passed by the CBI court, there appears to be no hurdle for the respondent-company to accede to the request of the petitioner.
(2.) However, counsel for the respondent has submitted one judgment of the hon'ble High Court of Kerala passed in Crl. Rev. Pet. No. 1015 of 2004(B) titled Moideen v. Sub-Inspector of Police that came to be passed on August 13, 2010 wherein it has been observed that the trial court has no powers to lift the attachment order unless certain conditions are met with. Based on this, counsel for the respondent has submitted that the order passed by the CBI Court dated May 9, 2017 is wrong. The arguments of counsel for the respondent are not tenable in the eye of law because the trial court itself has passed an order for lifting of the attachment relating to the shares held by Dr. T.M. Paul. The same judgment is based on the ruling of hon'ble High Court of Kerala given in Kumaran v. Muriyad Service Co-operative Bank, 2010 2 KerLT 97. Therefore, counsel for the respondent cannot question the order passed by the CBI court on May 9, 2017 and this forum has no jurisdiction to make any observation on the order passed by the CBI Court. In case, the respondent is aggrieved by the order dated May 9, 2017 passed by the CBI Court, Ernakulam, he is at liberty to file criminal revision petition before the hon'ble High Court of Kerala against the order dated May 9, 2017. However, counsel has apparently tried to impress upon this Bench forcefully that based on the judgment of the Kerala High Court given in Mohan Paul v. Central Bureau of Investigation, this Bench cannot pass an order on the petition for transmission of shares.
(3.) It is on record that the petitioner had presented a copy of the death certificate of Dr. T.M. Paul along with order document for transmission of shares in the name of the petitioner before the respondent-company through counsel on October 13, 2014 as mentioned in the company petition. It is settled law that with the death of the accused person, the attachment if any ordered under section 83 of the Code of Criminal Procedure, 1973, would not survive as has been held by the apex court in Mrs. V.G. Peterson v. O.V. Forbes, 1963 AIR(SC) 692, wherein it has clearly been held that the attachment could subsist so long as the contemnor was alive and that on the death of the contemnor, the attachment could not survive either in law or in equity or the rightful owner of the property would be entitled to restoration of the property on the death of the contemnor. There is no reason why the said principle cannot apply in the case of the death of an absconding accused whose property was under an order of attachment under section 83 of the Code of Criminal Procedure on the date of the death of such absconding accused. The law laid down by the hon'ble Supreme Court in the said case is the law of the land under article 141 of the Constitution of India. The plea that has been taken by the respondent-company was wrong and contrary to law laid down by the apex court. It appears that the respondent-company has deliberately not transmitted the shares of the petitioner in spite of the request made through his counsel. The application for transmission of the shares was made on October 13, 2014 but the matter was kept pending for more than two and a half-years without a valid reason/cause by the respondent-company. Therefore, we reject all the objections of the respondent-company.;