JUDGMENT The judgment of the Court was as follows :–– 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 deceased, 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 materially change the nature and character of the plaint as his clients have already challenged the other transfer of share holding 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, 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. 4. Mr. 3. It is not too late to entertain and allow this proposed amendment inasmuch as the defendants are yet to file written statement. 4. Mr. Das, the learned Senior Counsel, appearing for the defendants while opposing this application contends that during life time of late Gajendra Kumar Mitra and long before filing of the suit on or about 1990, his shareholdings were transferred from his individual name to the joint names of himself, Sabitendru Nath Roy and Manish Chandra Chatterjee by a letter dated 22nd June, 1990 as far as 243 shares are concerned. Then again on or about 2nd December, 1992 the said late Gajendra Kumar Mitra transferred his 16 shares in the joint names of himself, Prodosh Kumar Paul and Sm. Pratima Paul his Widow and this transfer was effected to the notice and acknowledgment of one of the defendants, namely Arati Sarkar, and this fact of transfer of shares in 1990 has also been shown in the Annual Returns of 30th September, 1991. Similarly, transfer of shareholding of Gajendra Kumar Mitra in December, 1992 has also been shown in the Annual Returns dated 29th September, 1993. 5. In similar way the shareholdings of plaintiffs and also the heirs and legal representatives of the Subrata Ghosh were transferred. In support of his contention he has shown me the annual returns of the aforesaid two years as well as the extract of the register of members. 6. He contends further that it is no gainsaying that the aforesaid transfer of shares during the lifetime of Gajendra Kumar Mitra was not within the Knowledge of the plaintiffs. The aforesaid belated action of the plaintiffs challenging transfer of shares that took place in 1990 and 1992 are hopelessly barred by limitation as the same were sought to be incorporated on 4th July, 1997. During pendency of the suit no transfer of shares can be made, in view of the prohibitory order of injunction. 7. In support of his submission he has relied on the following decisions (1) AIR 1998 SC 3153 , (2) AIR 1995 SC 1768 , (3) AIR 1996 SC 2338. 8. He urges that the claim and contention that is sought to be made by way of amendment will alter and/or change the basic character of the suit, therefore this amendment should not be allowed. 8. He urges that the claim and contention that is sought to be made by way of amendment will alter and/or change the basic character of the suit, therefore this amendment should not be allowed. He further contends that this Court is stripped of its jurisdiction to grant reliefs, which are sought to be incorporated by proposed amendment in view of formation of Company Law Board. He has drawn my attention to Section 111 of the Companies Act as amended and submits that relief of rectification of register of members can only be granted by Company Law Board and while doing so the issues relating thereto and/or involving and/or associated therewith are also required to be adjudicated and can only be decided by the Company Law Board. The proposed prayer for declaration of transferring shares being illegal is nothing but a first step and/or preliminary question as regard the issue of rectification of register. His further contention is that when the law requires a thing is to be done, in a particular manner, the same shall be done in that manner and not at all. In support of his submission he has relied on the decision of the Supreme Court reported in (4) AIR 1976 SC 789 , (5) 1995 (Supp.) SCC 81. 9. Having heard the Learned Counsels and considering rival submission of the parties I think no decision is required to be rendered on the question of jurisdiction of this Court in relation to the relief of rectification of shares, as Mr. Mitra has conceded to this position of the law that this Court has no jurisdiction in view of pronouncement of the Supreme Court as cited by Mr. Das to grant relief for rectification of shares. Thus, when this Court is incompetent to grant final relief, it is of absolute futility to allow such amendment. 10. Therefore, I am to examine whether this Court can grant declaratory relief in relation to the transfer of the shares or not, in view of Section 111 of the Companies Act, 1956 (as amended) in this connection, I feel Section 111 of the Companies Act is required to be reproduced :–– "S.111. 10. Therefore, I am to examine whether this Court can grant declaratory relief in relation to the transfer of the shares or not, in view of Section 111 of the Companies Act, 1956 (as amended) in this connection, I feel Section 111 of the Companies Act is required to be reproduced :–– "S.111. Power to refuse registration and appeal against refusal : (1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of, the company, it shall, within two months from the date on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal. (2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may appeal to the Company Law Board against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same. (3) An appeal under sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company. (4) If–– (a) the name of any person–– (i) is without sufficient cause, entered in the register of members of a company, or (ii) after having been entered in the register, is, without sufficient cause, omitted therefrom or (b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to be, a member including a refusal under sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Company Law Board for rectification of the register. (5) The Company Law Board, while dealing with an appeal preferred under sub-section (2) or an application made under sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order–– (a) direct that the transfer or transmission shall be registered by the company and the company shall comply with such order within ten days for the receipt of the order, or (b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved. (6) The Company Law Board, while acting under sub-section (5), may, at its discretion, make–– (a) such interim orders, including any orders as to injunction or stay, as it may deem fit and just; (b) such orders as to costs as it thinks fit; and (c) incidental or consequential orders regarding payment of dividend or the allotment of bonus or rights shares. (7) On any application under this section, the Company Law Board–– (a) may decide any question relating to the title of any person who is a party to the application to have his name entered in, or omitted from, the register; (b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification. (8) The provisions of sub-sections (4) to (7) shall apply in relation to the rectification of the register of debenture-holders as they apply in relation to the rectification of the register of members. (9) If default is made in giving effect to the orders of the Company Law Board under this section, the company and every officer of the company who is in default shall be punishable with fine which may extend to one thousand rupees, and with a further fine which may extend to one hundred rupees for every day after the first day after which the default continues. (10) Every appeal or application to the Company Law Board under sub-section (2) or sub-section (4) shall be made by a petition in writing and shall be accompanied by such fee as may be prescribed. (10) Every appeal or application to the Company Law Board under sub-section (2) or sub-section (4) shall be made by a petition in writing and shall be accompanied by such fee as may be prescribed. (11) In the case of a private company which is not a subsidiary of a public company, where the right to any shares or interest of a member in, or debentures of, the company is transmitted by a sale thereof held by a Court or other public authority, the provisions of sub-sections (4) to (7) shall apply as if the company were a public company: Provided that the Company Law Board may, in lieu of an order under sub-section (5), pass an order directing the company to register the transmission of the right unless any member or members of the company specified in the order acquire the right aforesaid within such time as may be allowed for the purpose by the order, on payment to the purchaser of the price paid by him therefor or such other sum as the Company Law Board may determine to be a reasonable compensation for the right in all the circumstances of the case. (12) If default is made in complying with any of the provisions of this section, the company and every officer of the company who is in default, shall be punishable with fine which may extend to fifty rupees for every day during which the default continues. (13) Nothing in this section and Sections 108, 109 or 110 shall prejudice any power of a private company under its articles to enforce the restrictions contained therein against the right to transfer the shares of such company. (14) In this section 'company' means a private company and includes a private company which had become a public company by virtue of Section 43A of this Act." 11. Upon careful reading of the said section it appears to me that the Company Law Board is invested with jurisdiction to entertain appeal against the decision of a company to refuse to register, transfer or transmission by operation of law, of the right to any shares or interest of a member in the company. Unless there is a refusal on part of the company, the Company Law Board cannot have any jurisdiction to decide the issue. Unless there is a refusal on part of the company, the Company Law Board cannot have any jurisdiction to decide the issue. I do not find from language of the aforesaid section that a Company Law Board has jurisdiction to rectify the register of member, in ordinary course, nor do I find the Law Board has any jurisdiction to grant any declaratory relief. In my view, in this respect jurisdiction of the Civil Court has not been ousted either expressly or by necessary implication. Particularly in this case transfer of shares has already been effected, rectification of share register will be necessary only upon declaration that such transfer being illegal. In case of this nature rectification of Register of Members will be warranted after declaratory relief being granted. Jurisdiction of the Civil Court is still retained by the Legislature to grant declaratory relief. Therefore, I am unable to accept the argument of Mr. Das in this respect. The decisions cited by Mr. Das in this context are wholly inappropriate. 12. It is now to be examined as to whether the reliefs and allegation, excluding those for rectification of register of members can be allowed to be incorporated in the plaint by way of amendment or not. It appears from the documents produced before this Court, which are the extract of the register, as well as the annual returns filed with the Registrar of the Companies, that even before institution of the suit, during his lifetime, Gajendra Kumar Mitra, since deceased, transferred his shareholding to himself jointly with other persons. This amendment application was taken out on or about 4th July, 1997. Ordinarily, filing of the suit or initiating appropriate proceedings asking for the relief for declaration and other consequential reliefs are barred by the limitation. Article 58 of the Schedule of the Limitation Act, 1963 provides for period of limitation for the declaratory reliefs. The said Article is quoted hereunder :–– "58. To obtain any other Three years. When the right to sue declaration first accrues." 13. In this case ordinarily the right to sue accrues on the date of transfer of the shares so a suit should have been filed within three years from the date of transfer. Mr. The said Article is quoted hereunder :–– "58. To obtain any other Three years. When the right to sue declaration first accrues." 13. In this case ordinarily the right to sue accrues on the date of transfer of the shares so a suit should have been filed within three years from the date of transfer. Mr. Mitra contends that under Section 17 of the Limitation Act, 1963 the aforesaid prescribed period of three years may not be applicable strictly in this case as his clients were ignorant about the aforesaid transfer because of fraudulent concealment until an affidavit-in-opposition was filed in the year 1995, which is the point of discovery. This action has been brought by his clients within the period of limitation, as it shall begin to run from 1995, under Section 17 of the said Act. So, it is apposite to quote the said Section 17 of the Limitation Act. "17. Effect of fraud or mistake. This action has been brought by his clients within the period of limitation, as it shall begin to run from 1995, under Section 17 of the said Act. So, it is apposite to quote the said Section 17 of the Limitation Act. "17. Effect of fraud or mistake. (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,–– (a) the suit or application is based upon fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him; the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production : Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which–– (i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or (ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or (iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and did not at the time of purchase know, or have reason to believe, that the document had been concealed. (2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the Court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order : Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be." 14. The argument advanced by Mr. Mitra is acceptable in principle and he is absolutely right in saying so, but then whether this can be accepted on the facts and circumstances of this case is another question. 15. It would appear from Section 17 sub-section 1 Clause (d) of the Limitation Act that the period of limitation shall not begin to run until the plaintiff (in this case) discovered the fraud or mistake or could, with reasonable diligence have discovered it; or in the case of concealed document, until the plaintiff or the applicant has his means of producing concealed document or compelling its production. 16. In this case in my view the plaintiff could have discovered the aforesaid alleged concealed fact of transfer of shares by Gajendra Kumar Mitra (since deceased) not only from Office of the Registrar of Companies but also having inspection of the register of member of the company itself. The plaintiff No.2 himself has stated that he was employed as the Chief Executive of the Company so he could discover in course of his employment in the year 1990, along with the other fraud or misappropriation of funds of the company. It is absurd to suggest that, he could not discover this fact of transfer of shares of Gajendra Kumar Mitra, which is sought to be challenged herein. So I hold that the advantage of Section 17 of the Limitation Act in this case cannot be extended. 17. Lastly Mr. Mitra submits that the question of limitation as regard granting relief on merit is concerned the same can be subject-matter of final hearing of the suit and at this stage this Court will not look into the question of limitation and should leave this matter for trial. There were divergent views on this question as to whether question of limitation at the time of the amendment should be decided or not. Mr. There were divergent views on this question as to whether question of limitation at the time of the amendment should be decided or not. Mr. Das has rightly submitted the aforesaid transfer took place long before filing of the suit and such transfer has not only been acted upon and the same has been acquiesced in by the predecessor-in-interest, of the plaintiff if not by the plaintiff themselves. Therefore, valuable of right over the years has accrued in favour of his client, such a right cannot be clouded bringing the same within the controversy of the present suit. I cannot accept the argument of Mr. Mitra in, view of the position of the law that amendment cannot be allowed seeking to incorporate a barred claim under the law. The Supreme Court decision in case of (6) Radhika Devi v. Ragranghi Singh and Ors. reported in AIR 1996 SC 2358 as cited by Mr. Das has observed in paragraph 6 that......... "Thereby accrued right in favour of the respondents would be defeated by permitting amendment of the plaint. The High Court, therefore, was right in refusing to grant permission to amend the claim." 18. In that case in a partition suit an amendment was sought to be made, challenging deed of gift, which was executed long before filing of the suit, such application for amendment was not allowed not only by the High Court but also by the Supreme Court. 19. In another decision reported in AIR 1995 SC 1768 the similar view was taken by the Supreme Court. 20. In such circumstances following the aforesaid decisions of the Supreme Court I hold that this application for proposed amendment should not be allowed if done then a barred claim will be allowed to be put in this lis. In another decision of the Supreme Court reported in (7) AIR 1997 SC 2421 , the Apex Court encouraged merit less litigation is nipped in the bud. I feel this one is one of such cases, which in my view, is frivolous, as the plaintiffs allowed the transfer to be acted upon not having challenged it despite knowledge within the period of limitation. So, relying on the decisions of the above Supreme Court it would be travesty of Justice if I allow this amendment. 21. This application is dismissed. 22. There will be no order as to costs. So, relying on the decisions of the above Supreme Court it would be travesty of Justice if I allow this amendment. 21. This application is dismissed. 22. There will be no order as to costs. Xerox copy of the judgment will be made available to the parties in accordance with law as quickly as possible.