IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 Co.Appeal.No. 18 of 2011() ---------------------------------- (AGAINST THE ORDER DATED 10.11.2010) IN COMPANY APPLICATION NO.699 OF 2010 IN COMPANY APPLICATION NO.551 OF 2010 COMPANY APPLICATION NO.440 OF 2005 IN C.P.NO.43/2003 CONNECTED WITH M.C.A.73/2002 ....................................................................... APPELLANTS ---------------------- 1. VISHNAVI, S.T.R. BUILDING, KUMBALATHU PURAYIDOM, STR COMPOUND, MAIN ROAD,KOLLAM. (APPLICANT IN CA 551/2010 & 699/2010) 2. SUJATHA MENON, S.T.R., BUILDING KUMBALATHU PURAYIDOM, STR COMPOUND, MAIN ROAD, KOLLAM. (APPLICANT IN CA 551/2010 & 699/2010). BY ADV. SRI.P.R.PREMACHANDREN RESPONDENT(S): ----------------------- 1. STR EDUCATIONAL & CHARITABLE TRUST, REG.NO.14/1985,REP.BY ITS SECRETARY,P.GOPINATHAN NAIR,RESIDING AT KADUKKARA HOUSE, AYATHIL KOLLAM-17 (APPLICANT IN CA 440/2005 & RESPONDENT IN CA 551/ 2010 & 699/2010) (BY ADV.SRI.K.SUBASH CHANDRA BOSE) 2. S.T.REDDIAR & SONS(QUILON) PVT.LTD., REG.OFFICE AT MINI TOWERS, S.R.M. ROAD, KOCHI-18 REP. BY ITS CHAIRMAN & DIRECTOR D.ASHOKAN, RESIDING AT PRAKASH HOME, KADAPPAKKADA, KOLLAM-8 (RESPONDENT IN CA 440/2005 & ORIGINAL PETITIONER IN CP 43/2003) (BY ADV.SRI.K.GOPALAKRISHNA KURUP) ADV. SRI.NIRMAL V NAIR FOR R1 SRI.SURAJ.S FOR R1 SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE FOR R2 THIS COMPANY APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- Company Appeal No.18 of 2011 ----------------------------------------------- Dated 5th August, 2011. J U D G M E N T Joseph, J. This appeal is filed against the order passed by the learned Company Judge, by which he stayed O.S.296/02 on the file of the Sub Court, Kollam. 2. We heard the learned counsel for the parties on a few occasions. 3. The substance of the argument of the learned counsel for the appellants is that O.S.296/02 is filed by the appellants on the basis that property belonging to them came to be transferred during the time they were minors, and they seek to avoid the transfers. There is no dispute that they are share holders of M/s.S.T.Reddiar and Sons (Quilon) Private Limited. The plaint schedule property extends to 21.5 cents. Allegations have been raised before us essentially against one Sri.D.Ashokan. There is reference to number of litigations and orders passed. There is no dispute that there is a petition under Section 391 of the Companies Act. According to him, the Co.Appeal 18/11 2 plaint schedule property is part of the scheme. He would further submit that under Section 8 of the Hindu Minority and Guardianship Act, the right is conferred on the minors to avoid a transaction. He relied on Section 5 of the Hindu Minority and Guardianship Act and contended that the provisions in Section 391 of the Companies Act being contained in the Companies Act, which must be treated as an existing law and since Section 391 of the Companies Act is in conflict with Section 8 of the Hindu Minority and Guardianship Act, the right under Section 8 will prevail. He also contends for the supremacy of Section (8) also on account of the non-obstante clause and it is also a later Act. 4. Of course, learned counsel for the respondents would point out that there is power under Section 391(6). They would even contend that appeal itself is not maintainable. They would further contend that there is no merit at all in the suit and they would otherwise support the order. 5. According to the respondents, there is nobody to present the correct facts before the civil court as the company Co.Appeal 18/11 3 is sought to be represented by the father of the minors. [Learned counsel for the appellants would counter this by saying that Finance Director is also on the party array]. 6. We noted that there is no provision akin to Section 446(2) in Section 391 of the Companies Act, empowering the company court to call for the suit and to decide it. It is the complaint of the appellant that if the scheme were to be approved, it would have a very serious impact on the rights being canvassed in the civil suit. 7. Today, when the matter came up, learned counsel for the respondents would submit that provided the appellants implead Sri.D.Ashokan as an additional defendant in the suit, they have no objection in the stay being vacated. Learned counsel for the appellants would submit that he will implead D.Ashokan as a share holder. In view of this stand taken, we dispose of the appeal as follows : On condition that the appellants will take steps within a period of ten days from today to implead Sri.D.Ashokan referred to in the appeal memorandum, in the suit O.S.296/02 Co.Appeal 18/11 4 pending before the Sub Court, Kollam, so that the version of Sri.D.Ashokan also is projected and considered by the civil court, the impugned order passed by this Court will stand vacated. We further direct that the suit will be disposed of finally, before the closure of the court for summer vacation, 2012. If the appellants do not seek to apply for impleading D.Ashokan as aforesaid, the appeal will stand dismissed. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.