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2009 DIGILAW 130 (CAL)

Asiatic Oxygen Ltd. v. Bihar Air Products Ltd.

2009-02-19

BISWANATH SOMADDER

body2009
JUDGMENT : Biswanath Somadder, J. 1. This application, styled as an application under section 115 of the Code of Civil Procedure, 1908, has been filed in respect of an order bearing No. 15 dated 06th August, 2007, passed by the learned Judge, 7th Bench, City Civil Court at Calcutta in Title Suit No. 1177 of 2006, seeking a reversal and/or setting-aside thereof. 2. The petitioners in the instant application are the defendant nos. 1 to 5 in the Title Suit pending before the learned court below. The opposite party nos. 1 to 7 are the plaintiffs, whereas opposite party nos. 8 to 13 are the defendant nos. 6 to 11 and opposite party nos. 14 to 16 are the proforma defendant nos. 12 to 14 in the said Title Suit. The present application has been principally contested before this Court by the petitioner no.1, being the defendant no.1 in the suit, and the opposite party no.1, being the plaintiff no.1 in the suit. 3. At the very outset, a point of maintainability of the instant application under section 115 of the Code of Civil Procedure, 1908 was raised by the learned advocate appearing on behalf of the opposite parties/plaintiffs. It was submitted that the impugned order, having been passed on an application under Order 7, Rule 11 of the Code of Civil Procedure, 1908, cannot be said to be an order "finally disposing of" the "suit" or "other proceedings" and, therefore, not amenable to revision by the High Court, in exercise of its jurisdiction under section 115 of the Code of Civil Procedure, 1908. Much arguments have been advanced by the learned advocates appearing on behalf of the parties on this score. However, I do not consider it necessary to enter into the realms of controversy in respect of this particular issue or unnecessarily dilate it any further, since this Court also has necessary determination to entertain a revisional application under Article 227 of the Constitution of India, and, in any event, it is no ones case that the impugned order cannot be subjected to judicial review under the said constitutional provision. I, therefore, proceed to consider the present application on its merit. 4. The plaintiffs instituted the aforementioned learned Title Suit before the City Civil Court at Calcutta praying, inter alia, for the following reliefs: - ".. .. I, therefore, proceed to consider the present application on its merit. 4. The plaintiffs instituted the aforementioned learned Title Suit before the City Civil Court at Calcutta praying, inter alia, for the following reliefs: - ".. .. (d) A decree for declaration that the purported agreement dated 19th July, 2006 between Bihar State Industrial Development Corporation Ltd. (BSIDC) the defendant No.6 and Asiatic Oxygen Ltd. (AOL) the defendant No.1 is illegal, null and void and be cancelled and set aside. (e) A decree for declaration that Mr. Surjit Singh Malik the plaintiff No.2 is still the Managing Director of (BAPL) the plaintiff No.1 and the Board of Directors as on 1st August, 2006 are still the Board of Directors of the plaintiff No.1. (f) Decree for declaration that the purported reconstitution of the Board of Directors of (BAPL) the plaintiff company as mentioned in the notice dated 17th August, 2006, is illegal null and void and be set aside and cancelled. (g) A decree for declaration that the purported resolution dated 7th August, 2006 and all other resolutions passed by the defendant Nos. 2, 3, 4, 5, 7, 8, 9 and 10 as the alleged directors be adjudged null and void and be set aside and cancelled. (h) A decree for declaration that the defendant Nos. 2, 3, 4, 5, 7, 8, 9 and 10 have not been appointed as Directors of the Bihar Air Products Limited at any Lawful Board Meeting or General Meeting of the said company and are not lawful directors of the said company. (i) A decree for declaration that the purported notice dated 17th August, 2006 as well as purported Board Meeting for appointment of the defendant Nos. 2, 3, 4, 5, 7, 8, 9 and 10 as alleged directors of the plaintiff No.1, is illegal, bad, null and void and be set aside and cancelled. (j) Perpetual injunction restraining the defendant Nos. (i) A decree for declaration that the purported notice dated 17th August, 2006 as well as purported Board Meeting for appointment of the defendant Nos. 2, 3, 4, 5, 7, 8, 9 and 10 as alleged directors of the plaintiff No.1, is illegal, bad, null and void and be set aside and cancelled. (j) Perpetual injunction restraining the defendant Nos. 2, 3, 4, 5, 7, 8, 9, 10 from acting as the Directors and/or its Chairman, Vice-Chairman, Managing Director, Executive Director and Director & Company Secretary in any way whatsoever as mentioned in the notice dated 17th August, 2006 issued by the defendant No.3 as the purported Managing Director of the Bihar Air Products Ltd., the plaintiff no.1; (k) Perpetual injunction restraining the defendants their servants and agents to convene any meeting of the Board of Directors and/or General Meeting and/or extra ordinary General Meeting and/or Annual General Meeting of Bihar Air Products Ltd. the plaintiff No.1; (l) Perpetual injunction restraining the defendants their servants and agents from taking resolution for withdrawal of any of the cases filed by the plaintiff No.1 in several Courts; (m) Perpetual injunction restraining the defendants their servants and agents from operating of the Bank account with the State Bank of India Bistupur Main Branch at Jamshedpur or any other Banks on behalf of the Bihar Air Products Ltd., the plaintiff No.1 in the said suit in the manner as indicated in the purported resolution passed at the alleged meeting of the Board of Directors of Bihar Air Products Ltd. held on Monday the 7th August, 2006 and as mentioned a copy thereof forwarded to the General Manager, State Bank of India Main Branch, Bistupur, Jamshedpur annexure to the plaint; (n) Perpetual injunction restraining the defendant Nos. 2, 3, 4, 5, 7, 8, 9 and 10 and from giving any effect or further effect to their purported resolution dated 7th August, 2006 and all other resolutions allegedly passed by them and further restraining them from asking the State Bank of India, Main Branch, Bistupur, Jamshedpur and in any other Bank or Banks for giving effect of the said purported resolutions; (o) Perpetual injunction restraining the defendants their servants and agents from interfering with the day to day business of the plaintiff No.1 from preventing operation of any Bank Account with the State Bank of India, Main Branch, Bistupur, Jamshedpur and in any other Bank or Banks by the duly authorised officers of the plaintiff No.1 in accordance with law; (p) Perpetual injunction restraining the defendant Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 from making any obstruction or obstructions to plaintiff No.2 to act as the Managing Director of the plaintiff No.1 and to discharge his duties and further restraining them from making any obstruction of running the day to day business of the plaintiff No.1 in any manner whatsoever; (q) Mandatory injunction directing (AOL) the defendant No.1 and BSIDC the defendant No.6 and servants and agents, assigns and nominees to concur the appointment of Mr. S.S.Malik the plaintiff No.2 as the Managing Director of the plaintiff No.1 in accordance with law; ............................................. ............................................." 5. Consequently, the present petitioners filed an application under Order 7, Rule 11 of the Code of Civil Procedure, 1908, before the learned court below stating therein, inter alia, that the suit was not maintainable in its present form and that the learned City Civil Court at Calcutta had no jurisdiction to entertain the suit. Amongst the many averments made in the application, the following may be taken note of: - "5. (c) The Suit has been filed in the name of Bihar Air Products Limited which was established in terms of a collaboration agreement executed on 25.1.1975 by and between Asiatic Oxygen Limited (AOL), Defendant No.1 herein, & Others and Bihar State Industrial Development Corporation Limited (BSIDC), Defendant No.6 herein. BAPL being a company incorporated under the provisions of the Companies Act, 1956 and run by the Board of Directors in accordance with its Memorandum and Articles of Association. BAPL being a company incorporated under the provisions of the Companies Act, 1956 and run by the Board of Directors in accordance with its Memorandum and Articles of Association. The Board of Directors of BAPL in none of its meeting resolved to institute a Suit against the Defendants. Hence, the Suit cannot be filed in the name of BAPL, Plaintiff No.1 herein, and therefore, the instant Title Suit is not maintainable in its present form. (d) Plaintiff No. 2 viz. Mr. Surjit Singh Malik who was earlier nominee of Defendant No.1 purported to claim as Managing Director ceased to be so for the following reasons: - (i) Pursuant to the provisions of Articles of Association of BAPL Managing Director inter alia would be the Nominee of Defendant No.1. By virtue of the Articles of Association Defendant No.1 nominated Plaintiff No.2 to act as Managing Director of BAPL. Dissatisfied with the functioning of Plaintiff No.2 Defendant No.1 formally withdrawn the nomination of Plaintiff No.2 vide letter No. HO:AOL:BLB:1687 dated 18.7.1992. Hence, Plaintiff No.2 in no circumstances represent himself as Managing Director of BAPL. (ii) BAPL in its Board Meeting held on 25.3.1991 lastly appointed Plaintiff No.2 as Managing Director for Five years with effect from 1.11.1990 which was to expire on 31.10.1995. Plaintiff No.2 before expiry of his tenure at own accord tendered his resignation on 23.4.1992 and in his resignation letter he further requested for waiver of notice period since for personal reason it was not possible for him to attend office after 31.5.1992. Presuming but not admitting that the said resignation of Plaintiff No.2 was withdrawn subsequently but in no stretch of imagination Plaintiff No.2 can hold office of Managing Director after 31.10.1995 when his term as Managing Directed expired. (iii) Plaintiff No.2 subsequently in his own letter dated 25.6.1996 addressed to Trustees, Bihar Air Products Limited Employees Gratuity Fund of BAPL reconfirmed having expiry of his terms as Managing Director of BAPL with effect from 31.10.1995. (iv) Moreover, Part I(c) of Schedule XIII of the Companies Act, 1956 as amended prescribes that no person shall be eligible for appointment as a Managing or whole time Director of a Company unless he has completed the age of 25 years and has not attained the age of 70 years. As per the information provided by Plaintiff No.2 to BAPL the date of birth of Plaintiff No.2 is 10.10.1930. As per the information provided by Plaintiff No.2 to BAPL the date of birth of Plaintiff No.2 is 10.10.1930. Even otherwise, since Plaintiff No.2 has already crossed 70 years of age, he cannot claim the office of Managing Director of BAPL. .................................................. ................................................... .......................................... 7. Under the amended Articles of Association of BAPL, the Defendant No.1 and Defendant No.6 each shall have the right to appoint not more than 4 Directors on the Board of BAPL. Out of the 4 Directors Managing Director, Vice Chairman and two Directors would be nominees of Defendant No.1. Further, out of the 4 Directors Executive Director, Chairman and two Directors would be nominees of Defendant No.6. 8. The Affidavit sworn by the Plaintiffs are defective, misleading, false and frivolous on the face of it and therefore, inadmissible in the Court of Law. Mr. Surjit Singh Malik who declared himself as Managing Director of BAPL is totally contradictory to his own letter dated 25.6.1996 addressed to the Trustees, Bihar Air Products Ltd. Employees Gratuity Fund wherein he himself stated to have completed his term as Managing Director of BAPL on 31.10.1995 and therefore, asked for payment of Gratuity dues. Hence, from his own statement it reveals that he is no longer Managing Director. Thus the present suit cannot be allowed to be maintained as a representative suit. Presuming but not admitting that the instant Title Suit is filed under representative capacity but the Affidavit does not disclose on whose behalf and on what authority/power the Suit/Injunction Application has been filed. The authorization/attorney by M/s. S. Salauddin, Plaintiff No.4, Phul Kant Jha, Plaintiff No.5, Dhanaraj Agarwal, Plaintiff No.6, given in whose favour for instituting the instant Title Suit is vague. Hence, the instant Title Suit is not maintainable in its present form and therefore, liable to be rejected for non-joinder and/or misjoinder of Plaintiffs/parties. .................................................................... ...................................................." 6. The learned court below, by the impugned order dated 06th August, 2007, rejected the contention of the defendant nos. Hence, the instant Title Suit is not maintainable in its present form and therefore, liable to be rejected for non-joinder and/or misjoinder of Plaintiffs/parties. .................................................................... ...................................................." 6. The learned court below, by the impugned order dated 06th August, 2007, rejected the contention of the defendant nos. 1, 2, 4 and 5 and dismissed their application under Order 7, Rule 11 of the Code of Civil Procedure, 1908 with the following observations: - "Now as I find from the plaint and its prayer portion that the plaintiffs have filed the instant suit against the defendants, inter alia, for decree for declaration that the purported agreement dated 19th July, 2006 between the defendant no.6 and the defendant no.1 is illegal, null and void and be cancelled and set aside and rest of the prayers are declaration for perpetual injunction and consequential reliefs arising out of the said agreement dated 19th July, 2006. So, on a bare reading of the plaint it appears that the plaintiffs have every cause for concern that their rights may be affected by such agreement dated 19th July, 2006. Therefore it cannot be said that the plaint discloses prima facie that the present suit is in relation to the constitution and management of M/s. Bihar Air Products Limited, the plaintiff no.1. In this connection I would like to observe that the City Civil Court has jurisdiction to entertain and try any suit if it is not hit by the provisions of sub-section 4 of section 5 of the City Civil Court Act and its First Schedule, clause 10 sub-clause (ii) as mentioned therein. Therefore the first line of argument as put forward by the ld. Lawyers for the defendants is not tenable .......................................................................... ......................................................................... ........................................................ The question raised by the ld. Lawyers of the defendants that the plaintiff no.2 has got no authority to file the instant suit as he has ceased to be Managing Director of the plaintiff no.1 is a question that cannot be decided at this stage of hearing without taking any evidence on behalf of both sides. Apart from that the ld. Lawyers for defendants have not been able to indicate any provisions of the Companies Act, 1956 under which any relief can be granted by the company court in respect of any of the prayers made in the plaint in the instant suit. Apart from that the ld. Lawyers for defendants have not been able to indicate any provisions of the Companies Act, 1956 under which any relief can be granted by the company court in respect of any of the prayers made in the plaint in the instant suit. The case reported in AIR Patna (NOC) page 338 cited by the ld. Advocate of the defendants has no application at all as the same relates to a claim of an employee against his employer for recovery of money by way of compensation for one and half year on termination of his service in Punjab in a suit filed in Patna where no cause of action arose and moreover. So having regard to the facts and circumstances of the case the foregoing discussions, as stated above, I am of the view that the instant application is devoid of merit and the same is liable to be rejected with cost. ..............................................................." 7. The specific contention of the present petitioners is that the learned City Civil Court at Calcutta has no jurisdiction to entertain, try and determine the suit in view of the same falling within the description specified in the First Schedule referred to in sub-section (4) of section 5 of the City Civil Court Act, 1953. Learned advocate appearing on behalf of the petitioners submitted that from a bare perusal of the plaint, it would be manifestly clear that the suit arises out of any or all of the issues relating to constitution, incorporation or management of Bihar Air Products Ltd., the plaintiff no.1, being a company incorporated under the Indian Companies Act, 1956; thus, being barred under the aforementioned provision of the City Civil Court Act, 1953. Learned advocate for the petitioners has submitted, while extensively relying on the plaint and the agreement dated 19th July, 2006, that the suit is nothing but for control and management of the affairs of the plaintiff-company. In this regard, the learned advocate for the petitioners submitted that the prayers in the suit would palpably demonstrate the purpose of institution of the suit by the plaintiffs. 8. The learned advocate for the petitioners submitted that the agreement dated 19th July, 2006 between M/s. Bihar State Industrial Development Corporation Ltd., being the defendant no. In this regard, the learned advocate for the petitioners submitted that the prayers in the suit would palpably demonstrate the purpose of institution of the suit by the plaintiffs. 8. The learned advocate for the petitioners submitted that the agreement dated 19th July, 2006 between M/s. Bihar State Industrial Development Corporation Ltd., being the defendant no. 6, and M/s Asiatic Oxygen Ltd., being the defendant no.1, which the plaintiffs seek to be declared as illegal, null and void states, inter alia, as follows: - "(1) The parties agree to resolve all their disputes and differences mutually with regard to control and management of BAPL on the terms hereinafter stated. (2) The very basis of formation and incorporation of BAPL is the Collaboration Agreement dated 25th January 1975 and the Articles of Association of BAPL is in consonance with the Collaboration Agreement. It is agreed that the Collaboration Agreement is reflected in the Articles of Association of BAPL and AOL is the Collaborator as defined and/or stated in the Articles of Association of BAPL. (3) The parties agree that all past and present claims that they have again each other or that BAPL have against AOL and its associates each be withdrawn forthwith, however, the accounts prepared and passed at the instance employees of BAPL, upto the year 2000 shall not be redrawn by AOL but any admitted mistake found in respect of the accounts of previous years since 1991-92 after reconstitution of Board of Directors BAPL etc. shall be reflected in the books of A/c. of BAPL from the year 2000-01. (4) In order to implement this Agreement the parties shall apply for and obtain appropriate order by mutual consent of the parties in C.S.No. 485 of 2000 (Asiatic Oxygen Ltd. & Ors. v. Bihar Air Products Ltd. & Ors.) pending before the Hon'ble Calcutta High Court to the following effect in the interest of BAPL, Promoters and its shareholders.: (a) The Board of Directors of BAPL be reconstituted in the following manner: (i) Four nominees of the Collaborators /AOL out of which one nominee shall be the Managing Director of BAPL. (ii) Four nominees of BSIDC out of which one nominee director shall be the Chairman of the Board of Directors of BAPL. (ii) Four nominees of BSIDC out of which one nominee director shall be the Chairman of the Board of Directors of BAPL. (iii) One of the Nominee Directors of AOL shall be appointed as Vice Chairman (VC) of BAPL till such time as is mutually agreed between BSIDC and AOL. (iv) One of the Nominee Directors of BSIDC shall be appointed as Executive Director (ED) of BAPL till such time as is mutually agreed between BSIDC and AOL. The Board will continue to be so constituted till such time as BSIDC together with its associates and AOL together with its associates continue to hold not less than 26% and 25% respectively of BAPL. Such reconstituted Board shall be lawful and proper notwithstanding anything to the contrary contained in the Articles of Association of BAPL and AOL and BSDIC shall take appropriate steps for amendment of the Articles of Association of BAPL having retrospective effect from the date of such reconstitution. (5) The parties including BAPL shall be withdrawing all cases in terms of clause (6) below, shall withdraw all civil and criminal cases filed against each other in any Court of Law save and except C.S.No. 29 of 1993 and C.S.No. 217 of 1997 filed by AOL which may be withdrawn when the current shareholding matter is determined and resolved mutually between the parties. (6) The reconstituted Board of BAPL shall unconditionally withdraw all claims BAPL may have till upto against AOL and its associates, as well as withdraw all civil cases and withdraw or compound all criminal cases pending before any Court of law and filed in the name of BAPL against AOL and its associates and/or their officers or employees. In case of non-compoundable offences, BAPL shall proceed with the same with an intention to accrue acquittal of the AOL and associates and/or their officers or employees. The same will apply to the cases if any filed by AOL against BAPL BSIDC and its representatives, Associates etc. (7) AOL has raised certain doubts over the final accounts of BAPL for the period 1991-92 to 1999- 2000. It has been agreed that any admitted mistake found shall be reflected in the accounts for the year 2000-01 onwards. (8) This Agreement will remain in force till it is rescinded or replaced by mutual consent." 9. (7) AOL has raised certain doubts over the final accounts of BAPL for the period 1991-92 to 1999- 2000. It has been agreed that any admitted mistake found shall be reflected in the accounts for the year 2000-01 onwards. (8) This Agreement will remain in force till it is rescinded or replaced by mutual consent." 9. According to the learned advocate for the petitioners, the learned court below did not even take note of the above-mentioned clauses of the agreement, which is sought to be declared as null and void by the plaintiffs in the pending Title Suit. He submitted that the jurisdiction of the learned City Civil Court at Calcutta was specifically excluded to hear suits, such as the present one, in view of the express bar under the aforementioned provision of the City Civil Court Act, 1953. 10. The learned advocate for the petitioners has relied on the following judgments to substantiate the points raised in the present application: - (1). 1978 CHN 669 (The Mining, Geological & Metallurgical Institute of India & Ors. v. Shyam Nath Bhadury & Ors.) and (2). 2004 (I) CHN 498 (Calcutta Cosmopolitan Club Ltd. v. Bhanwarlal Bhandari & Ors.). 11. On the other hand, the learned advocate appearing on behalf of the opposite parties/plaintiffs submitted that the suit did not, in any way, relate to or arise out of the management and control of the plaintiff no.1. Learned advocate appearing on behalf of the opposite parties/plaintiffs also relied extensively on the pleadings made in the plaint and submitted that the learned court below had rightly observed that the application under Order 7, Rule 11 of the Code of Civil Procedure, 1908 was not maintainable and was liable to be rejected since on a bare reading of the plaint it appeared to the learned judge that the plaintiffs had every cause for concern that their rights could be affected by the agreement dated 19th July, 2006. The learned judge, therefore, had rightly held that it could not be said that the plaint disclosed, prima facie, that the suit was in relation to the constitution and management of Bihar Air Products Ltd., being the plaintiff no.1. The learned judge, therefore, had rightly held that it could not be said that the plaint disclosed, prima facie, that the suit was in relation to the constitution and management of Bihar Air Products Ltd., being the plaintiff no.1. The learned advocate appearing on behalf of the opposite parties/plaintiffs, thus, submitted that the prayers in the plaint for declaration, perpetual injunction and consequential reliefs arising out of the agreement dated 19th July, 2006 could not be said to be hit by the provision of sub-section (4) of section 5 of the City Civil Court Act, 1953. According to the learned advocate for the opposite parties/plaintiffs, Item 10 sub-item (i) and (ii) of the First Schedule under sub-section (4) of section 5 of the City Civil Court Act, 1953 was not attracted in respect of pending Title Suit and therefore the learned City Civil Court had jurisdiction to entertain, try and determine the suit. 12. Learned advocate appearing on behalf of the opposite parties/plaintiffs relied on the judgment of a Division Bench of this Hon'ble Court in the case of Indo- Swiss Trading Co. & Ors. v. Ghatal Steam Navigation Co. & Ors. reported in 82 CWN 419 and submitted for the purpose of rejecting a plaint under Order 7, Rule 11 of the Code of Civil Procedure, 1908, the court cannot look into in any other document, including a plaint in an earlier suit, but can only look into the statements made in the plaint itself. He relied on the case of Janki Narayan Bhoir v. Narayan Namdeo Kadam reported in AIR 2003 SC 761 and submitted that for the purpose of deciding an application under clauses (a) and (d) of Order 7, Rule 11 of the Code of Civil Procedure, 1908, the averments in the plaint are germane. The learned advocate also relied on the judgment of the Hon'ble Supreme Court in the case of Sopan Sukhdeo Sable & Ors. v. Assistant Charity Commissioner & Ors. reported in AIR 2004 SC 1801 and submitted that the learned court below had rightly rejected the application under Order 7, Rule 11 of the Code of Civil Procedure, since the same was not hit by any of the infirmities provided in the four clauses under Rule 11 Order 7. v. Assistant Charity Commissioner & Ors. reported in AIR 2004 SC 1801 and submitted that the learned court below had rightly rejected the application under Order 7, Rule 11 of the Code of Civil Procedure, since the same was not hit by any of the infirmities provided in the four clauses under Rule 11 Order 7. The learned advocate further relied on a judgment of the Kerala High Court in the case of R. Prakasam v. Sree Narayana Dharma Paripalana Yogam reported in Vol.50 Company Cases 611 and submitted that except in cases where the Companies Act, 1956 confers jurisdiction on the Company Court or some other authority like the Central Government or the Company Law Board, either expressly or by implication, all other disputes pertaining to a company were to be resolved through the forum of civil courts, when the disputes were capable of being resolved by them. He also relied on the judgment of the Punjab and Haryana High Court in the case of Ravinder Kumar Jain v. Punjab Registered (Iron and Steel) Stockholders Association Ltd. reported in Vol. 48 Company Cases 401 and submitted that in the facts and circumstances of the instant case, the only remedy of the plaintiffs was to file a civil suit. 13. After considering the submissions made by the learned advocates appearing on behalf of the respective parties and upon perusing the order impugned, it appears that the only issue in the present application is whether the jurisdiction of the learned City Civil Court at Calcutta to entertain, try and determine the Title Suit in question was excluded and/or barred under the description specified against Item No. 10(i) & (ii) of the First Schedule provided under sub-section (4) of section 5 of the City Civil Court Act 1953. In order to decide the same, it is necessary at first to advert to some of the relevant pleadings and prayers of the plaint. From the prayers of the plaint, as reproduced hereinbefore, it appears that the plaintiffs are, inter alia, seeking a decree for declaration that the agreement dated 19th July, 2006, between Bihar State Industrial Development Corporation Ltd., being the defendant no.6, and the Asiatic Oxygen Ltd., being the defendant no.1, was illegal, null and void and therefore the same be cancelled and/or set aside. If one simply turns to the agreement dated 19th July, 2006, which forms part of the pleadings, being annexure A to the plaint, and looks at some of the clauses of the agreement, which have also been reproduced hereinbefore, it would be patently clear that the subject-matter of the agreement was with regard to control and management of the plaintiff no.1, which was formed and incorporated on the basis of a collaboration agreement dated 25th January, 1975 where Asiatic Oxygen Ltd., being the defendant no.1, has been described as one of the principal promoter and collaborator or stated as such in the Articles of Association of the plaintiff no.1. Another clause of the agreement, being clause (4), which has also been reproduced hereinbefore, indicates the reconstitution of the Board of directors of the plaintiff no.1 in the manner as set out therein, wherefrom it appears that Asiatic Oxygen Ltd., being the defendant no.1, shall have nominees in the Board, out of which one nominee was to be the managing director of the plaintiff no.1. 14. For the purpose of determining the present application, I am of the view that it is not necessary for this Court to look much further beyond what has been observed above. The learned court below, while deciding the fate of the application of the petitioners, as it appears, has taken note of the agreement dated 19th July, 2006, and the prayer in the plaint seeking a decree for declaration against the defendants that the said agreement was illegal, null and void and was required to be cancelled and/or set aside. From the impugned order it further appears that the learned court below also took note of the rest of the prayers, which were for other declarations, perpetual injunction and consequential reliefs, all arising out of the agreement dated 19th July, 2006. The learned court below also held that on a bare reading of the plaint it appeared that the plaintiffs had every cause for concern that their rights could be affected by the agreement dated 19th July, 2006. 15. The learned court below also held that on a bare reading of the plaint it appeared that the plaintiffs had every cause for concern that their rights could be affected by the agreement dated 19th July, 2006. 15. In spite of taking note of the prayers in the suit and the agreement dated 19th July, 2006, the learned court below in the impugned order held that it could not be said that the plaint disclosed, prima facie, that the present suit was in relation to the constitution and management of Bihar Air Products Ltd., being the plaintiff no.1. The learned court below, in the impugned order held that the City Civil Court had jurisdiction to entertain, try and determine any suit if it was not hit by the provision of sub-section (4) of section 5 of the City Civil Court Act, 1953. 16. It may be worthwhile, at this stage, to look into the relevant provision of law: Sub-section (4) of section 5 of the City Civil Court Act, 1953 reads as follows: - "(4) The City Civil Court shall not have jurisdiction to try suits and proceedings of the description specified in the First Schedule." 17. From the above, it is clear that the City Civil Court shall not have jurisdiction to try suits and proceedings of the descriptions specified in the First Schedule. In the facts of the instant case, the relevant item of the First Schedule under sub-section (4) of section 5 of the City Civil Court Act, 1953, is Item no. 10, which is reproduced hereinbelow: - "10. Suits and proceedings- (i) under the Indian Companies Act, 1913 (VII of 1913), or the Banking Companies Act, 1949 (X of 1949), or (ii) relating to or arising out of the constitution, incorporation, management or winding up of corporations." 18. On a bare perusal of the above, it appears that suits and proceedings under the Indian Companies Act, or the Banking Companies Act, or relating to or arising out of the constitution, incorporation, management or winding up of corporations were expressly barred for adjudication by the City Civil Court at Calcutta. 19. On a bare perusal of the above, it appears that suits and proceedings under the Indian Companies Act, or the Banking Companies Act, or relating to or arising out of the constitution, incorporation, management or winding up of corporations were expressly barred for adjudication by the City Civil Court at Calcutta. 19. It is not understood as to why, even upon perusing the agreement dated 19th July, 2006, the learned court below observed that it could not be said that the plaint disclosed, prima facie, that the suit in question was in relation to the constitution and management of M/s Bihar Air Products Ltd., being the plaintiff no.1. In fact, a plain reading of the pleadings, including the prayers and the agreement dated 19th July, 2006, would disclose, without an iota of doubt, that the Title Suit pending before the learned court below was with regard to the management and control of the plaintiff no.1, being a company incorporated under the Companies Act. 20. The judgment of the Division Bench of this Hon'ble Court in the case of Indo-Swiss Trading Co. & Ors. v. Ghatal Steam Navigation Co. & Ors., relied on by the learned advocate for the opposite parties/plaintiffs, was rendered in a fact situation, where the learned trial court committed a fundamental error in referring to the statements made in a previous Title Suit while dealing with an application under Order 7, Rule 11 of the Code of Civil Procedure. The court, in that case held, inter alia, that for the purpose of considering whether a plaint was to be rejected under Order 7, Rule 11 of the Code of Civil Procedure, it could not go into other matters not available in the plaint itself. I am, therefore, unable to understand as to how the ratio of the decision of the Hon'ble Division Bench of this Court in the case of Indo-Swiss Trading Co. & Ors. v. Ghatal Steam Navigation Co. & Ors. is applicable in the facts and circumstances of the instant case, where, from the pleadings and the documents annexed to the plaint it was clear and evident that the subject-matter of controversy in the suit was with regard to management and control of the plaintiff no.1, being a company incorporated under the provisions of Companies Act. 21. & Ors. is applicable in the facts and circumstances of the instant case, where, from the pleadings and the documents annexed to the plaint it was clear and evident that the subject-matter of controversy in the suit was with regard to management and control of the plaintiff no.1, being a company incorporated under the provisions of Companies Act. 21. The proposition of law laid down by the Hon'ble Supreme Court in the case of Sopan Sukhdeo Sable & Ors. v. Assistant Charity Commissioner & Ors., relied on by the learned advocate for the opposite parties/plaintiffs, clearly states that for the purpose of deciding an application under clauses (a) and (d) of Rule 11 Order 7 of the Code of Civil Procedure, the averments in the plaint are germane and the pleas taken by the defendants in the written statement would be wholly irrelevant and unnecessary. The Hon'ble Supreme Court, in the case of Sopan Sukhdeo Sable, also reiterated the principles of law laid down in the earlier decision of the Hon'ble Supreme Court in Saleem Bhai & Ors. v. State of Maharashtra (supra). In Saleem Bhai it was also held, with reference to Order 7, Rule 11 of the Code of Civil Procedure, 1908, that the relevant facts which are needed to be looked into for an application thereunder, are the averments in the plaint. In my opinion, such proposition of law is unquestionable. In the facts of the instant case, the averments in the plaint were germane, to the extent it disclosed the purpose for which the suit was instituted before the learned court below and such disclosure gave rise to an express bar of the City Civil Courts jurisdiction to entertain, try and determine the Title Suit. 22. In my view, the judgment of the Kerala High Court in the case of R. Prakasam v. Sree Narayana Dharma Paripalana Yogam (supra) has no manner of application at all in the facts of the instant case, since the City Civil Court at Calcutta is incapable of adjudicating the disputes raised in the present suit, as the courts jurisdiction to entertain, try and determine the pending Title Suit is expressly barred, since it falls squarely under Item no. 10 of the First Schedule under the provision of sub-section (4) of section 5 of the City Civil Court Act, 1953. 23. 10 of the First Schedule under the provision of sub-section (4) of section 5 of the City Civil Court Act, 1953. 23. The judgment of the Punjab and Haryana High Court in Ravinder Kumar Jain v. Punjab Registered (Iron and Steel) Stockholders Association Ltd. (supra) was rendered when the petitioner moved an application under section 166 read with section 171 of the Companies Act seeking primary relief that the meeting of the company held on a particular date be declared illegal and void. The question that arose for consideration was whether the said petition was maintainable before the High Court in the form it was presented and the Punjab and Haryana High Court following an earlier decision of that Court held that the petition was not maintainable and the only remedy of the petitioner was to file a Civil Suit. The facts of the present case, as enumerated in detail above, are wholly and fundamentally distinct from the facts of the case before the Punjab and Haryana High Court and as such the ratio of the decision rendered by that court is inapplicable. 24. In the judgment of the Hon'ble Division Bench of this Court in the Calcutta Cosmopolitan Club Ltd.s case (supra), relied on by the learned advocate for the petitioners, the Court had an occasion to consider the relevant provisions of the City Civil Court Act, which are also applicable in the facts of the instant case. The Division Bench, while taking note of the admitted position that the defendant no.1 was a limited liability company, incorporated under the provision of the Companies Act, 1956, also took into consideration that the relief which was sought for in the plaint related to holding of the Annual General Meeting and Extra-ordinary General Meeting, which necessarily related to management of the corporation/company. Relying on an earlier judgment of a Single Bench of this Hon'ble Court, in the case of The Mining, Geological & Metallurgical Institute of India & Ors. v. Shyamalesh Nath Bhadury & Ors. (supra), which has also been relied on by the learned advocate for the petitioners herein, the Division Bench, held, inter alia, that the City Civil Court at Calcutta had no jurisdiction in respect of a suit "relating to" or "arising out of" affairs relating to management of a company incorporated under the provision of the Companies Act. (supra), which has also been relied on by the learned advocate for the petitioners herein, the Division Bench, held, inter alia, that the City Civil Court at Calcutta had no jurisdiction in respect of a suit "relating to" or "arising out of" affairs relating to management of a company incorporated under the provision of the Companies Act. In the facts of the present case, as discussed before, it is obvious that the Title Suit had been instituted by the plaintiff-company and others against the defendant no.1-company and others for control and management of the affairs of the plaintiff-company and therefore, the views expressed by the Division Bench in Calcutta Cosmopolitan Club Ltd.s case, adopting the earlier view of the Single Bench in The Mining, Geological & Metallurgical Institute of India & Ors. v. Shyamalesh Nath Bhadury & Ors., is squarely applicable. 25. For reasons stated above, the order impugned is liable to be set aside and is hereby set aside and the application filed by the petitioners before the learned court below under Order 7, Rule 11 of the Code of Civil Procedure, 1908, stands allowed accordingly. Urgent xerox certified copy of this order, if applied for be given to the parties.