Judgment : Introduction: Whether a suit filed by a party to an Agreement to restrain the other party from enforcing the provisions of the Agreement can be rejected at the threshold without approaching the trail Court by invoking Order 7 Rule 11 C.P.C., and that too at the instance of the other party to the contract, who himself filed another suit to enforce the provisions of the very same Agreement, is the core issue to be decided in this civil revision.’ 2. The Civil Revision Petition in C.R.P.No.3162 of 2008 is directed against the suit in O.S.No.235 of 2008 on the file of the learned District Judge, Coimbatore and the relief is to reject the plaint. 3. In C.R.P.No.3161 of 2008, challenge is to the very maintainability of the suit in O.S.Ho.1232 of 2008 on the ground that there was no cause of action to file the said suit and as such, it was a clear case of abuse of process of law. 4. The issues raised in both these revision petitions are identical and as such, the factual matrix as projected in C.R.P.No.3161 of 2008 is taken to narrate the background facts. 5. For the sake of convenience, the parties are referred to in the same order in which they were referred to before the trial Court. The facts C.R.P.No.3161 of 2008: 6. The suit in O.S.No.1232 of 2008 was instituted by the first respondent/plaintiff against the revision petitioner and respondents 2 to 7/defendants 2 to 7 praying for a judgment and Decree of permanent injunction restraining the defendants therein or their men and agents, nominees and servants from seeking transfers of the suit schedule shares to the name of the defendants or their nominees in the Register of members of the Company. 7. In the plaint in O.S.No.1232 of 2008, the plaintiff would contend thus: (a) M/s. Akshaya Textiles Ltd., the plaintiff became a sick industrial Company and a reference was made to BIFR in case no.177 of 1989. As per order dated 30.8.2001, BIFR recommended winding up of the Company. The order of BIFR was challenged in appeal before the AAIFR in appeal No.321 of 2001 and the appeal was dismissed vide order dated 25. 2002 by confirming the order of BIFR. The order passed by the AAIFR dated 25. 2002 was challenged before this Court in W.P.No.19548 and 19611 of 2002. The order of BIFR was challenged in appeal before the AAIFR in appeal No.321 of 2001 and the appeal was dismissed vide order dated 25. 2002 by confirming the order of BIFR. The order passed by the AAIFR dated 25. 2002 was challenged before this Court in W.P.No.19548 and 19611 of 2002. During the pendency of the Writ Petition, there was a positive development in the matter of rehabilitating the Company as the Company was able to discharge the entire liability to the Indian Bank who was the sole secured creditor of the Company. By taking note of the subsequent developments, this Court as per order dated 111. 2005, quashed the order of BIFR and AAIFR recommending winding up of the Company and the matter was remanded back to BIFR directing them to dispose of the reference in accordance with law and with a further direction to keep the winding up order in abeyance till the disposal of the proceedings before the BIFR. As per order dated 12. 2006, BIFR directed the Company not to transfer the shares or alienating the assets of the Company without their consent. .(b) While the matters stood thus, the first defendant and their nominees being the defendants 2 to 7 have lodged with the Company instruments of transfer and share certificates pertaining to the schedule mentioned shares on 23. 2008 under cover of their letters dated 23. 2008 requesting for transfer of the shares. The plaintiff Company in their Board meeting held on 24. 2008 considered the issue of transfer of shares and by taking into account the Order by BIFR regarding transfer of shares, resolved to seek legal advice. In the meantime, the plaintiff was served with an interim order dated 24. 2008 in I.A.No.355 of 2008 in O.S.No.235 of 2008, restraining them from transferring shares and therefore, the share transfers have not so far been effected. The Company was advised that notwithstanding the inter se dispute between the transferor and the transferees, the Company ought not to recognize the transfer of shares in view of the order of BIFR. However, defendants have been threatening the plaintiff and the Directors with physical assault in the event of non transfer of shares which made them to institute the suit. 8. However, defendants have been threatening the plaintiff and the Directors with physical assault in the event of non transfer of shares which made them to institute the suit. 8. C.R.P.No.3162 of 2008: .(a) The suit in O.S.No.235 of 2008 was instituted by the plaintiff against Akshaya Textiles Ltd., plaintiff in O.S.No.1232 of 2008 and other defendants praying for a judgment and Decree of Permanent Injunction restraining the first defendant Company from effecting transfer of the plaint schedule shares in the name of the second defendant or his nominees in the register of members of the Company or in any manner recognizing the second defendant or his nominee as shareholders or Directors of the Company. .(b) In the plaint in O.S.No.235 of 2008, it was the contention of the plaintiff that there was a proceeding before the BIFR which was confirmed in appeal by AAIFR as per order dated 25. 2002, which culminated in filing Writ Petition before this Court in W.P.Nos.19548 and 19611 of 2002. As per the orders of this Court dated 111. 2005, the matter was remanded to BIFR for fresh consideration with a further direction to keep the winding up proceedings in abeyance. Subsequently, BIFR passed an order restraining the first defendant from alienating or transferring the assets of the Company during the pendency of the proceedings. .(c) The first defendant was in the look out of necessary funds to discharge the unsecured loan, sundry creditors, statutory liabilities, workers’ dues etc. of the Company. In the said circumstances, the promoters of the Company approached the second defendant who was a financier and trader for financial assistance. During the course of the transactions, realizing the legal bar in creating mortgage in respect of the assets of the Company, it was decided to create a pledge of shareholding of the promoters of the Company so as to treat it as security for the amount to be advanced by the second defendant. The discussion continued for months together between March to November 2005 and ultimately, an Agreement was entered into on 111. 2005. It was styled as a Memorandum of Understanding and Another Agreement in the nomenclature of a sale agreement was entered into on 111. 2005. The discussion continued for months together between March to November 2005 and ultimately, an Agreement was entered into on 111. 2005. It was styled as a Memorandum of Understanding and Another Agreement in the nomenclature of a sale agreement was entered into on 111. 2005. The plaintiff being the Managing Director of the Company, signed the Memorandum of Understanding as well as the Agreement drafted by the second defendant in good faith and in clear understanding that those documents were executed only to facilitate the pledge of shares and was not to be construed as an Agreement for transfer of shares/Management. The Memorandum of Understanding was executed in duplicate and one original was retained by the plaintiff. However, the sale Agreement was prepared only in one original and the same was retained by the second defendant. Simultaneous to the execution of the Memorandum of Understanding as well as Agreement, share transfer forms signed in blank, together with the original share certificate were deposited with the second defendant relating to the 90% of the share capital of the Company so as to create a pledge on the shares. The second defendant pursuant to the Agreement advanced a sum of Rs.10,55,00,568/- to the company and a sum of Rs.6,50,00,000/- to the promoters as loan. These payments so received by the first defendant was entered in the account as loan amount. Subsequently, part of the amount advanced by the second defendant was repaid. Since the instrument of transfer of share certificates were given only as a pledge, the second defendant did not lodge the documents for transfer with the Company. In the meantime, proceedings before BIFR progressed to a great extent and as per order dated 12. 2006, BIFR directed the Company not to transfer the shares or alienate the assets of the Company except with their consent. The Company also submitted a draft rehabilitation scheme to BIFR and in the said scheme, the amount due to the second defendant was shown as liability. .(d) While so, to the utter shock and surprise of the Company and its promoters, the second defendant, filed written submissions before the BIFR dated 11. The Company also submitted a draft rehabilitation scheme to BIFR and in the said scheme, the amount due to the second defendant was shown as liability. .(d) While so, to the utter shock and surprise of the Company and its promoters, the second defendant, filed written submissions before the BIFR dated 11. 2007 wherein he had claimed that in the Memorandum of Understanding as well as the Agreement the promoters have agreed to sell him their independent share holding in the Company along with the property of the Company in the very same condition on total consideration of Rs.15 Cores. However, the Company failed to transfer the shares. The second defendant also submitted a draft rehabilitation scheme on his own to the BIFR and as per the draft scheme, he claimed that a sum of Rs.209 lakhs was advanced towards purchase of shares and a sum of Rs.855 lakhs to the Company. The second defendant has also claimed that he has invested Rs.16.95 crores in the Company. According to the plaintiff, the value of the Company as on November, 2005 was not less than Rs.60 crores and as such, there was no question of selling the Company with its property for a paltry sum of Rs.15 crores. The plaintiff also detailed as many as 23 reasons in support of his contention that Memorandum of Understanding and the sale Agreement was given only as a security and it was not an outright sale of the first defendant Company. Since the second defendant has lodged the instrument of transfer by filling it up together with the share certificates relating to the schedule shares for transfers with the Company, the plaintiff was constrained to file the suit for Permanent Injunction restraining the first defendant Company from effecting transfer of the schedule mentioned shares to the name of the second defendant or his nominees in the Register of Companies. 9. The suit field by the Managing Director Mr. S.A. Narahari Setty in O.S.No.235 of 2008 was the first suit and it was filed on 24. 2008. along with the said suit, plaintiff also filed an application for interlocutory injunction in I.A.No.355 of 2008 and the learned Trail Judge as per order dated 24. 2008 granted an order of ex parte Interim Injunction. The said order is challenged in C.R.P.No.3162 of 2008. 10. 2008. along with the said suit, plaintiff also filed an application for interlocutory injunction in I.A.No.355 of 2008 and the learned Trail Judge as per order dated 24. 2008 granted an order of ex parte Interim Injunction. The said order is challenged in C.R.P.No.3162 of 2008. 10. The suit in O.S.No.1232 of 2008 was filed by M/s. Akshaya Textiles Ltd. On 35. 2008. No interim order was granted in the said suit. The first suit in O.S. No.235 of 2008 was filed by the Managing Director of M/s. Akshaya Textiles Ltd. Rep. by its Power of Attorney Holder Mr. Veerendrappa. Since the suit was impliedly barred under the Companies Act and as it takes way the jurisdiction of the Company Law Board in deciding in the inter se dispute between the shareholders and the Company, the second defendant has filed the revision petition with a prayer to reject the plaint. The prayer in C.R.P.No.3162 of 2008 was also for the purpose of rejecting the plaint. 11. The petitioner in C.R.P.No.3161 of 2008 filed a suit before the learned District Judge, Coimbatore against the plaintiff in O.S.No.1232 of 2008 with a prayer to enforce the obligations under the Agreement dated 111. 2005 and for other incidental reliefs. The said suit is also pending consideration. 12. Contentions: The learned counsel for the revision petitioner contended that both the suits in O.S.No.235 of 2008 and 1232 of 2008 are clear abuse of process of law and the plaint do not disclose any cause of action and as such, the suits are liable to be struck off from file. The learned counsel for the revision petitioner has taken me through the Memorandum of Understanding, sale Agreement as well as the related proceedings and would contend thus,: .(a) The plaintiff in O.S.No.1232 of 2008 entered into an Agreement with the revision petitioner being the first defendant whereby, the revision petitioner agreed to invest in the Company for the purpose of its rehabilitation. Revision petitioner also agreed to purchase 20% of the shares of the Company at the rate of Rs.44.11 per equity share of Rs.10/- each and the Plaintiff Company has agreed to induct the revision petitioner in the Board of Directors of the Company. As per the sale Agreement dated 111. Revision petitioner also agreed to purchase 20% of the shares of the Company at the rate of Rs.44.11 per equity share of Rs.10/- each and the Plaintiff Company has agreed to induct the revision petitioner in the Board of Directors of the Company. As per the sale Agreement dated 111. 2005, the first defendant has agreed to purchase the entire equity shares of the plaintiff Company along with movable and immovable properties of the Company on ‘as is where is condition’ without any liabilities for a total consideration of Rs.15 crores. Simultaneous to the execution of the sale Agreement a sum of Rs.10 crores was paid as advance in the name of the plaintiff Company along with its Directors. As per Clause 2 of the Agreement, Company acknowledged the receipt of Demand Draft and handed over 20% of equity shares in the name of the purchaser and 70% equity shares along with blank share transfer certificates. The vendor has also agreed to pass a resolution in the Board Meeting to be held on or before 212. 2005 for name transfer of 20% of the shares in the name of the Purchaser. It was also resolved that the balance 10% of the equity shares would be transferred in favour of the Purchaser before the final payment as agreed to in Memorandum of Understanding dated 111. 2005. .(b) The entire amount of Rs. 10 Crores was paid to the individual Directors as well as to the Company as evident by the details of the Demand Draft found mentioned in the sale Agreement. It was only when the first defendant was apprised of the fact that the amount paid by him as per the sale Agreement was shown only as a liability in the books of accounts of the plaintiff Company, he become suspicious of the conduct of the plaintiff and accordingly, the share transfer applications were submitted before the plaintiff Company for transfer. As per the provisions of the Companies Act, share transfer has to be approved by the Company and as such, meeting of the Board of Directors of the Company was held at Bangalore on 24. 2008. The main agenda for the meeting was consideration of the transfer of share application received by the Company. In the said meeting, the sixth defendant in O.S.No.235 of 2008 submitted his no objection for transfer of the shares. 2008. The main agenda for the meeting was consideration of the transfer of share application received by the Company. In the said meeting, the sixth defendant in O.S.No.235 of 2008 submitted his no objection for transfer of the shares. The sixth defendant as per letter dated 24. 2008 confirmed the factum of his consent to transfer the share in favour of the first defendant and his associates. The plaintiff Company on the other hand informed the sixth defendant as per communication dated 5. 2008 that the Company was restrained as per order in I.A.No.355 of 2008 in O.S.No.235 of 2008 on the file of the District Subordinate Judge, Coimbatore from transferring their shares in favour of the first defendant. .(c) As per Section 111-A of the Companies Act, read with sub Sections 5, 7, 9, 10 and 12 of Section 111, shares or debentures and any interest therein of a Company shall be freely transferable and in case a Company without sufficient cause refuses to register transfer of shares within two months from the date on which the instrument of transfer was delivered to the Company, it would enable the applicant to file an appeal before the Company Law Board. It was only for the purpose of preventing the revision petitioner/first defendant from filing an appeal before the Company Law Board the plaintiff has filed the suit as otherwise, they have to furnish reasons for refusal of transfer; which would enable the first defendant to approach the Company Law Board. .(d) The learned counsel further contended that the both suits O.S.No.235 of 2008 as well as O.S.No.1232 of 2008 were filed with ulterior motives. According to the learned counsel, the Companies Act is a self contained code and the jurisdiction of the Civil Court is impliedly barred in respect of matters to be dealt with by the authorities named in the said Act. The suit directly interferes with the jurisdiction of the Company Law Board inasmuch as the dispute in the matter of transfer of shares between the shareholder or a prospective shareholder of the Company has to be decided only by the Company Law Board. The learned counsel also placed reliance on the judgment of the Supreme Court in Canara Bank v. Nuclear Power Corpn. Of India Ltd., (1995) Supp 3 SCC 81; Ammonia Supplies Corpn. The learned counsel also placed reliance on the judgment of the Supreme Court in Canara Bank v. Nuclear Power Corpn. Of India Ltd., (1995) Supp 3 SCC 81; Ammonia Supplies Corpn. (P) Ltd. V. Modern Plastic Containers (P) Ltd., AIR 1998 SC 3153 : (1998) 7 SCC 105 ; NDMC v. Satish Chand, AIR 2003 SC 3187 : (2003) 10 SCC 38 in support of his contention that though there was no express provision ousting the jurisdiction of Civil Courts it was impliedly barred. 13. The learned counsel appearing for the plaintiff in both the suits contended that the issue raised in O.S.No.235 of 2008 cannot be decided by the authorities under the Companies Act and the Civil Court alone has got jurisdiction to entertain such disputes. According to the learned counsel, the plaintiff has detailed as many as 23 reasons in support of the contention that the Memorandum of Understanding as well as sale Agreement executed by the revision petitioner and the Company was not intended to be acted upon as it was only a pledge of shares for the purpose of advancing money. The learned counsel also relied on the judgment of the Supreme Court in Raja Ram Kumar Bhargava v. Union of India, AIR 1988 SC 752 : (1988) 1 SCC 681 ; Dwarka Prasad Agarwal (D) by L.Rs. and Another v. Ramesh Chandra Agarwala and Others, AIR 2003 SC 2696 : (2003) 6 SCC 220 as well as judgment of the Division Bench of the Bombay High Court in Shrish finance and Investment P. Ltd v. M. Sreenivasulu Reddy and Others (2002) 109 Company Cases 913. Discussion: .14. The plaintiff in O.S.No.1232 of 2008 has entered into Memorandum of Understanding as well as sale Agreement with the first defendant whereby and whereunder he has agreed to purchase the Company on a total sale consideration of Rs. 15 crores. There was a recital in the sale Agreement to the effect that the Company has handed over 20% of the equity shares in the name of the revision petitioner and 70% equity shares along with blank share transfer certificates. It was on the basis of the share certificates issued to the revision petitioner along with blank share forms, the first defendant lodged transfer applications with the Company. It was on the basis of the share certificates issued to the revision petitioner along with blank share forms, the first defendant lodged transfer applications with the Company. On the other hand, the Company as well as the Managing Director denied the factum of sale, as according to them, the sale Agreement was only a security deed and it was never intended to be acted upon as an Agreement of sale. In support of their contention, the learned counsel appearing for the Company also brought to my notice the averments in the sale Agreement to the effect that the Company has agreed to pass resolution in the Board Meeting only in respect of transfer of 20% shares in the name of the purchaser which was indicative of the fact that the other 70% of the equity shares were not intended to be sold. They have also contended that shares were not sold at the rate at which it was stated to have been sold and the revision petitioner has filled up the rate in the Memorandum of Understanding and as such, there were interpolations in the Agreement itself. The Law: .15. The Companies Act deals with the constitution and functions of the Company both private and public starting from its initial constitution and all other matters in connection with the affairs of the Company and matters incidental thereto. Before the amendment made to the Companies Act, rectification proceedings were governed under Section 155 Companies Act. Section 111 of the Act permits an appeal to be filed in the event of failure to register shares or to apply to the Court or invoke the jurisdiction under Section 155 to apply for rectification of the share register. Therefore, an aggrieved person was entitled to invoke either of the two remedies available to him. After the amendment, Section 155 was taken away and Section 111 in the present form was introduced. 16. Section 111 and Section 111-A deals with transfer of shares. Section 111-A deals with public limited Company. As per Section 111-A (2) shares or debentures and any interest therein of a company shall be freely transferable. The provision mandates that the Company has to take a decision within two months from the date on which the instrument of transfer or intimation of transfer was received by them in the matter of transfer of shares. As per Section 111-A (2) shares or debentures and any interest therein of a company shall be freely transferable. The provision mandates that the Company has to take a decision within two months from the date on which the instrument of transfer or intimation of transfer was received by them in the matter of transfer of shares. In case the Company refuses to register the transfer or failed to pass any orders within the outer time limit of two months, it would give a cause of action to the purchaser of the shares to file an appeal before the Company Law Board. 17. In Canara Bank v. Nuclear Power Corp. of India. Ltd. (supra), the Hon’ble Supreme Court considered the powers vested with the Statutory Authority under Section 155 as it stood before 35. 1991 and which is now assimilated and provided under Section 111 of the Act as under: “15. Section 155, as it read before 35. 1991, entitled a person aggrieved or any member of a company or a company to apply to the Court for rectification of the Company’s register of members if the name of any person was, without sufficient cause, entered in it or, after having been entered in it, was, without sufficient cause, omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become, or ceased to be, a member. The Court was entitled to order rectification of the register and to direct the company to pay the damages, if any, sustained by a party aggrieved. The Court was entitled to decide any question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the Court was provided for. 16. It will be seen that the CLB now exercises the powers that were exercisable by the Court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to 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 and to decide any question which it is necessary or expedient to decide in this connection. It is entitled to 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 and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High court against any decision or order of the CLB on a question of law is available to any person aggrieved, thereby under the provisions of Section 10-F.” 18. In Ammonia supplies Corp. (P) Ltd. V. Modern Plastic Containers (P) Ltd. (supra), the Hon’ble Supreme Court indicated that there is nothing in the Companies Act expressly barring the jurisdiction of the Civil Court, but the jurisdiction of the ‘Court’ as defined under the Act exercising its power under various Sections, where it has been invested with exclusive jurisdiction, the jurisdiction of the Civil Court is impliedly barred. The following observation as found in the said judgment would make the position clear: “31. Sub-section (1)(a) of Section 155 refers to a case where the name of any person is without sufficient cause entered or omitted in the Register of Members of a company. The word sufficient cause is to be tested in relation to the Act and the Rules. Without sufficient cause entered or omitted to be entered means done or omitted to do in contradiction of the Act and the Rules or what ought to have been done under the Act and the Rules but not done. Reading of this sub-clause spells out the limitations under which the Court has to exercise its jurisdiction. It cannot be doubted that in spite of exclusiveness to decide all matters pertaining to the rectification it has to act within the said four corners and adjudication of such matters cannot be doubted to be summary in nature. So, whenever a question is raised the Court has to adjudicate on the facts and circumstances of each case. If it truly is rectification, all matters raised in that connection should be decided by the Court, under Section 155 and if it finds adjudication of any matter not falling under it, it may direct a party to get his right adjudicated by a civil Court. Unless jurisdiction is expressly or implicitly barred under a statute, for violation or redress of any such right the civil Court would have jurisdiction. Unless jurisdiction is expressly or implicitly barred under a statute, for violation or redress of any such right the civil Court would have jurisdiction. There is nothing under the Companies Act expressly barring the jurisdiction of the civil Court, but the jurisdiction of the Court as defined under the Act exercising its powers under various Sections where it has been invested with exclusive jurisdiction, the jurisdiction of the civil Court is impliedly barred. We have already held above the jurisdiction of the Court under Section 155, to the extent it has is exclusive, the jurisdiction of the civil Court is impliedly barred. For what is not covered as aforesaid the civil Court would have jurisdiction. Similarly we find even under Section 446(1), its words itself indicate the jurisdiction of the civil court is not excluded. This sub-section states, …. no suit or legal proceedings shall be commenced…. Or proceed with ….. except by leave of the Court. The words except by leave of the Court itself indicate on leave being given the civil Court would have jurisdiction to adjudicate one’s right. Of course discretion to exercise such power is with the Court. Similarly under Section 446 (2), Court is vested with powers to entertain or dispose of any suit or proceedings by or against the company. Once this discretion is exercised to have it decided by it, it by virtue of the language therein excludes the jurisdiction of the civil Court. So we conclude that the principle of law as decided by the High Court that the jurisdiction of the Court under Section 155 is summary in nature cannot be faulted. 19. In Shrish finance and Investment P. Ltd. V. M. Sreenivasulu Reddy and Others (supra) Division Bench of the Bomaby High Court speaking though His Lordship Mr. Justice B.P. Singh (as His Lordship then was) considered Section 111-A in extenso and observed thus: “We find nothing in Section 111-A which has the effect of taking away the common law right of a member of a Company to seek rectification of the register of members. At best, it can be said that after the insertion of Section 111-A with effect from 20.9.1995, a member of a Company has no statutory right under the Companies Act to seek rectification of register of members. At best, it can be said that after the insertion of Section 111-A with effect from 20.9.1995, a member of a Company has no statutory right under the Companies Act to seek rectification of register of members. His common law right, however, remains intact and he can assert that right by filing a suit before a Court of competent jurisdiction. A learned Judge of this Court in Gopal Krishna Baliga v. Poona Industrial Hotel Ltd. (1992) 102 Comp Cas 375: (1999) 34 CLA 177 (Bom.) has taken the same view. In this context, it is also worth noticing that till 11. 1997, when Section 111-A was amended, no one could, in a proceeding under Section 111-A, challenge a transfer which was in violation of any law in force, other than the SEBI Act and Regulations, and the Sick Industrial Companies (Special Provisions) Act, 1985. It would, therefore, be difficult to contended that Section 111-A took as well as the common law right of a member to seek rectification on account of the transfer being in violation of law in force. The jurisdiction of Courts was not expressly excluded, nor Section 111-A as originally enacted or even after its amendment, provided an adequate alternative remedy, or a machinery for the enforcement of the pre-existing right of a member recognized at common law, a test to determine whether exclusion of jurisdiction of Courts was contended.” Exclusion of Civil Court jurisdiction: 20. Part I of the Code of Civil Procedure deals with the jurisdiction of the civil Courts. Section 9 of C.P.C. provides that the Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. When there is a provision in a particular statute ousting the jurisdiction of the Civil Court expressly, there would be no difficulty. However, there would be situations where the jurisdiction would be impliedly barred. While considering the issue as to whether the jurisdiction of a Civil Court was barred impliedly so many factors have to be taken into consideration. The hierarchy of the authorities under a particular act to resolve the disputes, finality given to the orders to be passed by such authorities are all indicative of the ouster of jurisdiction of civil Court. 21. The hierarchy of the authorities under a particular act to resolve the disputes, finality given to the orders to be passed by such authorities are all indicative of the ouster of jurisdiction of civil Court. 21. In Raja Ram Kumar Bhargava v. Union of India (supra), the Supreme Court considered the exclusionary clause in the statute ousting the jurisdiction of civil Court and observed thus: “Generally speaking, the broad guiding consideration are that wherever a right, not preexisting in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the civil Court’s jurisdiction is impliedly barred. If, however, a right pre-existing in common law is recognized by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the civil Court’s jurisdiction, then both the common law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence. To what extent, and on what areas and under what circumstances and conditions, the civil Court’s jurisdiction is preserved even where there is an express clause excluding their jurisdiction, are considered in Dhulabhai v. State of M.P. AIR 1969 SC 78 .” 22. In NDMC v. Satish Chand (supra), the Supreme Court extracted the principles laid down in Dhulabhai v. State of M.P. AIR 1969 SC 78 with respect to the situation where the Civil Court jurisdiction is ousted: “5. The opening words of the Section give a very wide jurisdiction to the civil Courts to try all suits of a civil nature, however, this wide power is qualified by providing an exception i.e. excepting suits of which their cognizance is either expressly or impliedly barred. Dhulabhai v. State of M.P. (supra) is a celebrated judgment on the point which still holds the field. It lays down the following principles: .(1) Where the statute gives a finality to the orders of the Special Tribunals the civil Court’s jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Court would normally do in a suit. It lays down the following principles: .(1) Where the statute gives a finality to the orders of the Special Tribunals the civil Court’s jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the Court, an examination of, the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not. .(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under the Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. .(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act it is not a compulsory remedy to replace a suit. .(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies. .(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. .(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. .(7) An exclusion of the jurisdiction of the civil Court is not readily to be inferred unless the conditions above set down apply. 6. It will be noticed from the provisions contained in Section 9 of the Code of Civil Procedure that a bar to file a civil suit may be express or implied. An express bar is where a statute itself contains a provision that the jurisdiction of a civil Court is barred e.g. the bar contained in Section 293 of the Income Tax Act, 1961. An implied, bar may arise when a statute provides a special remedy to an aggrieved party like a right of appeal as contained in the Punjab Municipal Act which is the subject-matter of the present case. Rejection of Plaint: 23. Order 7 Rule 11 C.P.C. provides for rejection plaint. The said provision enables the Court to reject plaint on account of certain specified contingencies. 24. Order 7 Rule 11 would read thus: “11. Rejection of Plaint: 23. Order 7 Rule 11 C.P.C. provides for rejection plaint. The said provision enables the Court to reject plaint on account of certain specified contingencies. 24. Order 7 Rule 11 would read thus: “11. Rejection of plaint: The plaint shall be rejected in the following cases: .(a) where it does not disclose a cause of action; .(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; .(c) Where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; .(d) Where the suit appears from the statement in the plaint to be barred by any law; .(e) Where it is not filed in duplicate; .(f) where the plaintiff fails to comply with the provisions of Rule 9); Provided that, the time fixed by the Count for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. 25. the provisions as contained in Order 7 Rule 11 C.P.C. gives authority to the Trail Court to reject the plaint at the threshold in case the Court was convinced on a perusal of the plaint that there was nothing to be tried in the suit as it was inherently impossible to proceed with the suit. 26. The question as to whether the Court has to decide the rejection of the plaint on the basis of the plaint averments or as to whether it has to call upon the defendant to file his Written Statement for the purpose of deciding the issue was considered by the Supreme Court in Saleem Bhai v. State of Maharashtra, AIR 2003 SC 759 : (2003) 1 SCC 557 , wherein it was held thus: “9. A perusal of Order 7 Rule 11 C.P.C makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trail Court can exercise the power under Order 7 Rule 11 C.P.C. at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trail. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 C.P.C., the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 C.P.C. cannot but be procedural irregularity touching the exercise of the jurisdiction by the trial Court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the Court as well as procedural irregularity. The High Court, however, did not advert to these aspects.” 27. In Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7 SCC 510 , the Supreme Court reiterated the legal position that the provisions of Order 7 Rule 11 C.P.C. could be involved at any stage of the proceeding and observed thus: “23. Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to consent the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word shall is used clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.” Supervisory Jurisdiction: 28. The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India without approaching the trail Court. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.” Supervisory Jurisdiction: 28. The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India without approaching the trail Court. In fact, the petitioner has also filed a suit before the learned District Judge, Coimbatore with a prayer to enforce the Agreement dated 111. 2005 by granting a Decree of specific performance of the Agreement. The said suit is also now pending. .29. The question is as to whether this Court has to exercise the jurisdiction under Article 227 of the Constitution of India to reject the plaint without directing the petitioner to approach the trail Court. .30. In A. Venkatasubbiah Naidu v. S. Chelappan, AIR 2000 SC 3032 : (2000) 7 SCC 695 , the issue before the Supreme Court was as to whether the High Court was justified in invoking the jurisdiction under Article 227 of the Constitution of India when there was an equally efficacious remedy available to the petitioner. The Supreme Court held that the party should be directed to avail themselves of the statutory remedies before approaching the High Court to exercise the jurisdiction vested under Article 227 of the Constitution of India. The relevant observation reads thus: .“20. How what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well-recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy.” 31. The Hon’ble Supreme Court in Estralla Rubber v. Dass Estate (P) Ltd., AIR 2001 SC 3295 : (2001) 8 SCC 97 has enumerated the scope and ambit of exercise of power by a High Court under Article 227 of the Constitution of India thus: “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article, 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The scope and ambit of exercise of power and jurisdiction by a High Court under Article, 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior Courts and Tribunals within the bounds of their authority and to see that they do the duty expected or required of then in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate Courts or Tribunals. Exercise of this power and interfering with the orders of the Courts or Tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate Court or substitute its own judgment in place of that of the subordinate Court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior Court or Tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the Court or Tribunal has come to. 7. This Court in Ahmedabad Mfg. & Calico Ptg. Co. Ltd. V. Ram Tahel Ramnand in AIR para 12 has stated that the power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate Courts and Tribunals within the bounds of their authority and, not for correcting mere errors. Reference also has been made in this regard to the case in Waryam Singh v. Amarnath. Reference also has been made in this regard to the case in Waryam Singh v. Amarnath. This Court in Bathutmal Raichand Ostwal v. Laxmibai R. Tarte has observed that the power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as a Court of appeal and that the High Court in exercising its jurisdiction under Article 227 cannot convert itself into a Court of appeal when the legislature has not conferred a right of appeal. Judged by these pronounced principles, the High Court clearly exceeded its jurisdiction under Article 227 in passing the impugned order.” 32. The Supreme Court in Sneh Gupta v. Devi Sarup and Others 2009 (2) Scale 765, observed thus: “33. The High Court moreover was exercising its jurisdiction under Article 227 of the Constitution of India. While exercising the said jurisdiction, the High Court had a limited role to play. It is not the function of the High Court while exercising its supervisory jurisdiction to enter into the disputed question of fact.” 33. In Radhey Shyam and Another v. Chhabi Nath and Others 2009 (3) LW 309, the Supreme Court in the context of exercise of power under Article 227 of the Constitution of India observed thus: “28. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep Tribunals and Courts within the bounds of their authority. Under Article 227, orders of both Civil and Criminal Courts, can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law.” Effective remedy: 34. The remedy as provided under Order 7 Rule 11 C.P.C. is an effective remedy to axe the civil suits at the threshold in case of satisfying the ingredients of the said provision. The trail Court is given the exclusively jurisdiction to decide the fate of a litigation in its initial stage itself. Unless the trail Court was apprised of the inherent defects in the suit, it would be impossible for the Court to consider the maintainability of the suit. The trail Court is given the exclusively jurisdiction to decide the fate of a litigation in its initial stage itself. Unless the trail Court was apprised of the inherent defects in the suit, it would be impossible for the Court to consider the maintainability of the suit. The jurisdiction of the trail Court cannot be bypassed in a routine manner. 35. The jurisdiction under Article 227 is a discretionary jurisdiction. The primary object of this provision is to keep the subordinate Courts and Tribunals within the limits of the authority. This power cannot be exercised like an appellate jurisdiction. It is not permissible to exercise the supervisory jurisdiction in matters wherein the trail Court was not having the opportunity to examine the issues. The superintendence of the High Court over the Courts and Tribunals cannot be construed to be an original jurisdiction in the High Court to entertain matters which should be considered ordinarily by the Civil Court. Normally, parties should be directed to pursue the alternative remedy available to them instead of availing the constitutional remedy. However, in extraordinary circumstances, when it was demonstrated that there was flagrant violation of the principles of law or justice, or the Court was accused of dereliction of duty of grave nature parties could invoke this jurisdiction. The extraordinary remedy would be losing its significance in case the jurisdiction was exercised even in ordinary circumstances. 36. By approaching this Court with a revision petition under Article 227 of the Constitution of India to reject the plaint, the trail Court is deprived of the opportunity to test the plaint in exercise of its power under Order 7 Rule 11 C.P.C. While registering a suit, the Court was only concerned with the compliance of the provisions relating to institution of suit. Because of clever drafting, it would be difficult for the trail Court to find out the inherent defects in the plaint. The provision regarding rejection of plaint is intended to rectify such defects. The jurisdiction under Order 7 Rule 11 is available to the Civil Court at any stage of the litigation. Therefore, the Superior Courts should exercise the jurisdiction only sparingly and not for mere asking. The jurisdiction is conferred on the trail Court to reject the plaint and as such, by passing this remedy should be in exceptional circumstances only. 37. It would be appropriate to quote the observation of Mr. Therefore, the Superior Courts should exercise the jurisdiction only sparingly and not for mere asking. The jurisdiction is conferred on the trail Court to reject the plaint and as such, by passing this remedy should be in exceptional circumstances only. 37. It would be appropriate to quote the observation of Mr. Justice V.S. Krishna Iyer in T. Arivandandam v. T.V. Satyal, AIR 1977 SC 2421 : (1977)4 SCC 467 , which reads thus: “5…. The learned Munsif must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 C.P.C. taking care to see that the ground mentioned. Therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under. Order 10, C.P.C. An activist Judge is the answer to irresponsible law suits. The trail Courts would insists imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr.XI) and must be triggered against them. In this case, the learned Judge to his cost realized what George Bernard Shaw remarked on the assassination of Mahatma Gandhi: “It is dangerous to be too good.” 6. The trail Court in this case will remind itself of Section 35-A C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned.” 38. Even though the learned counsel appearing for the petitioner has taken me through the entire pleadings to substantiate his contention that both the suits are liable to be struck off as there was an implied bar on account of the scheme of the Company Law, I am not inclined to consider the matter on merits in the present revision petition as it would prejudice the case of both the parties before the trail Court. It is not as if the petitioner was not having an opportunity to approach the trail Court with an application under Order 7 Rule 11 C.P.C. Admittedly, with respect to the very same transaction the petitioner has also filed a suit before the learned District Judge, Coimbatore. In the said suit, the petitioner seeks to enforce the very same Memorandum of Understanding which was referred to in these two suits. The two suits in respect of which these two revisions have been filed by the revision petitioner are now pending before the Sub Court as well as District Munsif Court, Coimbatore. The petitioner could have very well taken steps to get these two suits also to be posted before the learned District Judge for the purpose of taking up the matter along with the suit filed by him for specific performance. 39. therefore, I am of the view the petitioner should be relegated to the alternative remedy by filing an application before the trail Court under Order 7 Rule 11 C.P.C. Accordingly, the petitioner is granted liberty to file appropriate application before the trail Court to reject the plaint invoking Order 7 Rule 11 C.P.C. IN case of filing an application under Order 7 Rule 11 C.P.C., such application has to be decided as expeditiously as possible on merits and in the light of the legal position indicated above. It should also be the endeavor of the trail Court to dispose of the interlocutory application for injunction within four weeks from the date of receipt of a copy of this Order. 40. The Civil Revision Petitions are disposed of with the above observation. No costs. Consequently, M.P.Nos.1 of 2008 are closed. Petitions disposed of.