Act/Law wise: Judgment of Supreme Court of Bangladesh

ALL A B C D E F G H I J K L M N O P Q R S T U V W X Y Z



Companies Act, 1994
Section/Order/Article/Rule/Regulation Head Note
Section 11

It is undisputed that the writ petitioner Company and respondent No.3 started business jointly in 1979 under the name and style of Rangs Rental Services Ltd. and with the passage of time their busi­ness flourished and several other com­panies were also established with the Trade Marks "Rangs". Subsequently as dispute arose between them over the business matter, a Memorandum of Un­derstanding was signed on 14.04.1992 between the parties and as per terms of Memorandum of Understanding, the companies were divided into 2(two) groups namely, 'Ka' and 'Kha" group and pursuant to the Memorandum of Understanding dated 14.04.1992 two arbitrators were appointed and the arbi­trators made an unanimous 'Award' on 16.09.1992 making the division of the companies and the said 'Award' was made Rule of the Court and decreed ac­cordingly by the Subordinate Judge(now Joint District Judge),3rd Court, Dhaka in title Suit No.273 of 1992. Accordingly Rangs Rental Serv­ices Ltd. fell in the share of the writ pe­titioner. Abdur Roiif Chowdhury vs. Rangs Medicine Ltd (M. M. RuhulAmin J) (Civil) 9 ADC 979 ....View Full Judgment

Section 11(2)

No Director or Directors are or shall be allowed to form any company with the word "Rangs" either as a prefix or as a suffix except that owners/shareholders of Rangs Limited shall be entitled to float a company under the name and style of "Rangs" etc. Only owners/shareholders of a company are entitled to float a company under the name that company, no Director or Directors are or allowed to the same.The Registrar of Joint Stock Companies Firms can ask any company to change the name and object of that company as the name of the company has similarly and resemblance with the name and object of another company which was earlier incorporated.
Abdur Rouf Chowdhury-Vs.-Rangs Medicine Ltd. & others. 4 ALR (AD) 2014 (2) 209 ....View Full Judgment

Section 38

Discretion as to registration of any transfer of shares implies just and proper consideration of the proposal in the facts and circumstances of the case. Giasuddin Ahmed vs Green Delta Insurance Company Ltd and another 56 DLR (AD) 31. ....View Full Judgment

Section 38

Section 38 of the Companies Act gives the Court a wide discretion to scrutinize any fraud, error or undue influence or misrepresentation in the matter of transfer of any share and grant relief commensurating with the appropriate possible relief. Ahmed lmpex (Private) Ltd & others vs Moqbul Ahmed and others 56 DLR (AD) 92. ....View Full Judgment

Section 38

The Court has a wide power to scrutinize any fraud and other matters in transferring shares.
The provision of section 38 of the Companies Act gives the Court a wide discretion to scrutinize any fraud, error or undue influence or misrepresentation in the matter of transfer of any share and grant relief commensurating with the appropriate possible relief contemplated under the said section. Aggrieved person have the right to apply to the Court for rectification of the register of members where the name of a person is fraudulently or without sufficient cause entered in or omitted from that register.
Ahmed Impex (Private) Ltd. -Vs.- Moqbul Ahmed. 3 ALR (2014)(1)(AD) 158 ....View Full Judgment

Section 43

The Companies Act 1994
Section 43 read with
The Evidence Act
Section 73
We note from the impugned judgement that the learned Judge of the Company Bench compared the signature of the petitioner (respondent No.1 herein) appearing on Form-117 dated 8.10.2007 with those of his signatures appearing on other documents on record, including the Memorandum of Association. This is well within the jurisdiction of the learned Judge under the provisions of section 73 of the Evidence Act.
In such circumstances, we cannot but hold that the claim of the present respondent No.1 is established and that the Company Bench of the High Court Division came to a correct finding in allowing the petition for rectification of shares. …Reza Bin Rahman =VS= A.T.G. Mortaza, (Civil), 2019 (2) [7 LM (AD) 8] ....View Full Judgment

Sections 81, 85(3) read with 91(l)(b) & 36

Without holding and completion of 9th AGM by electing its Directors of the Board of Directors should not be de­clared to be illegally done and irh-practible to call the 10th AGM of respondent No. 1 bank, namely, Export-Import Bank of Bangladesh Limited vide "Price Sensitive Information" pub­lished in the Daily "Samakal" on 24.04.2009 (Annexure-'H') and Notice of the AGM dated 15.07.2009 (Annexure-'C-2'). Md. Mazakat Ali Harun vs. Export Import Bank (Md. Abdul Wah­hab Miah J)(Civil) 9 ADC 779. ....View Full Judgment

Section 81(2) and 85(3)

In terms of section 81(2) of the Companies Act the High Court Division while directing the calling of a general meeting of the company may give such ancillary or consequential direction as the Court thinks expedient in relation to the calling, holding and conducting of the meeting and in terms of Section 85(3) the High Court Division while giving an order of calling the meeting may also give such ancillary or consequential direction as it thinks expedient. Bangladesh Bank Vs. Sk. Abul Hossain & Ors 16 BLT (AD)110 ....View Full Judgment

Section 81(2) and 85(3)

Power of High Court Division to give direction for holding Annual General Meeting (AGM.)—
The High Court Division in exercise of its power under section 81(2) and 85(3) of The Companies Act, 1994 can direct holding of AGM and in so directing can also give ancillary and consequential direction as it may seem fit. Bangladesh Bank Vs. Sk. Abul Hossain and others 12 MLR (2007) (AD) 292. ....View Full Judgment

Section 81(2) and 85(3)

A company is a juristic person comprised of its members/share holders, governed by its own Article of Association through the Board of Directors selected/appointed by the Members for taking decisions in the formal meeting in accordance with the Article of Association as well as in accordance with law. So the members/shareholders of a company, whose combined effort, expressed through the Board of Directors is the key stone in running the company. It is the shareholder who can take any decision in respect of management of company through different types of meetings. The appellant company being one of the oldest company of the country, incorporated on 18.11.1959 and being run smoothly since then upon holding all its meetings in accordance with law. Thus it is held that the supreme power being in the hands of the shareholders they can take any decision in respect of running of the company in its meetings and when upon holding the 33rd annual general meeting and all subsequent meetings thereafter, the company took several resolutions approved by all subsequent meetings and the copies of those resolutions upto 38th meeting having already been submitted with the Registrar of Joint Stock Companies now no shareholder can have any grievance against any of such resolutions. .....Mirpur Ceramic Works Limited =VS= Yousuf Ariff Tabani, (Civil), 2018 (2) [5 LM (AD) 77] ....View Full Judgment

Section 85(2)(3)

If for any reason it is impracticable to call, hold and conduct a meeting on the happening of any circumstance the Court being satisfied to that effect to call a meeting in the manner such a meeting is to be called, could pass an order for holding the meetings to be conducted by a neutral Chairman even in the absence of an application.
United Commercial Bank Ltd vs Jahangir Alam Khan and others 56 DLR (AD) 76. ....View Full Judgment

Section 85(2)(3)

If for any reason it is impracticable to call, hold and conduct a meeting on the happening of any. circumstance the Court being satisfied to that effect to call a meeting in the manner such a meeting is to be called, could pass an order for holding the meetings to be conducted by .a neutral Chairman even in the absence of an application. United Commercial Bank Ltd vs Jahangir Alam Khan and others 56 DLR (AD) 76. ....View Full Judgment

Section 85(2) read with Section 85(3)

Meetings to be conducted by a neutral Chairman.
We are of the view that under the circumstances, if for any reason it is impracticable to call, hold and conduct a meeting on the happing of any circumstances the Court being satisfied to that effect to call a meeting in the manner such a meeting is to be called, could pass an order for holding the meetings to be conducted by a neutral Chairman even in the absence of an application under section 85(3) of the Companies Act invoking the provision of section 85(2) of the Companies Act in the facts and circumstances of the case. United Commercial Bank Ltd Vs. Jahangir Alam Khan & Ors 12BLT(AD)213 ....View Full Judgment

Section 85(3)

Power of the Company Bench of the High Court Division to give directions in ancillary matters—
Law is well settled that the Company Bench of the High Court Division can not interfere with the internal management of the company. In the instant case the Company Bench directed in certain ancillary matters such as the fixing of record date, preparation of fresh balance sheet and fixing the date of AGM. The apex court having found nothing wrong affirmed the impugned order and dismissed the appeals. Reazaul Karim (Mohd.) and others Vs. ABM Khalecjiizzaman and others 15 MLR (2010) (AD) 369. ....View Full Judgment

Section 85(3)

read with
Companies Rule, 2009
Rule 8 —Section 85 is very much clear that the provisions provided in this section are with respect to all meetings, namely, annual general meeting, board meeting and other meeting. The learned Counsel for the respondent-leave petitioners has mainly argued that the High Court Division committed wrong in giving this direction for holding board meetings under section 85(3) of the Companies Act, 1994. The learned Counsel has contained that sub-section 3 of section 85 of the Companies Act is not applicable in respect of board meetings of a company, but it is applicable for annual general meeting only of a company. But Appellate Division does not find this argument of the learned Counsel acceptable at all. Section 85 is regarding provisions as to meetings and votes. The title of this section 85 is “Provision as to meeting and votes”.
The Appellate Division also held that this very section 85 is very much clear that the provisions provided in this section are with respect to all meetings, namely, annual general meeting, board meeting and other meeting. So, this argument of the learned counsel is not acceptable at all that sub-section 3 of section 85 is applicable in respect of board meetings only of a company.
Md. Rafiqul Islam and others -Vs.- Mostafa Jamal Mohiuddin and others. (Civil) 10 ALR (AD) 300-302 ....View Full Judgment

Section 91(1)(b)

Under the garb of recommendation Board of Directors cannot reject the candidature of any person for the election to the office of the director of the Bank.
The word “recommended” means power of the Board to point out defects, if any, in the candidature of a person for the office of direct. tor for consideration in the Annual General Meeting to avoid complications in such meeting and not the power to reject any candidature on the ground of defect real or fanciful, Per Kazi Ebadul Hoque, J.]
ASF Rahman and another Vs A M Agha Yousuf and others, 20 BLD (AD) 205. ....View Full Judgment

Section 91

Appellants representing majority shares having contested the written objection filed by the respondent No.1 challenging election of Mr A Matin Khan before the Company Judge have locus standi to file the appeal. ASF Rahman and another vs AM Agha Yousuf and others 52 DLR (AD) 127. ....View Full Judgment

Section 91(1)(b)

Under the garb of recommendation Board of Directors cannot reject the candidature of any person for the election to the office of the director of the Bank. ASF Rahman and another vs AM Agha Yousuf and others 52 DLR (AD) 127. ....View Full Judgment

Section 95

Temporary Injunction
The courts are generally reluctant to interfere with the decisions taken at company meetings unless there is almost a manifest breach of the Articles or the statute, because it is the company and not the Court which is responsible for its management. [Para- 121
Moharnmad Mohibul Ahsan(Shawart) & Ors. Vs. Ittefaq Group of Publications Ltd. 7 BLT (AD)-14 ....View Full Judgment

Section 95

It is now a well-defined principle that the Courts are generally reluctant to interfere with the decisions taken at Company meetings unless there is almost a manifest breach of Articles or the statutes, because it is the Company and not the court which is responsible for its management. The High Court Division was well aware of the legal position and having found that there was an apparent breach of section 95 of the Act in holding the meeting on 7.1.1995 granted temporary injunction. The said order of injunction was found to be inappropriate but the same cannot be a routine matter to be followed under all circumstances:
Mohammad Mohibul Ahsan (Shawan), Director, Ittefaq Group of Publications Ltd. Vs Ittefaq Group of Publications lid, represented by Mainul Hossain, Executive Director-I and others, 18 BLD (AD) 207. ....View Full Judgment

Section 95

Dispute relating to matters as contemplated under section 95 being of civil nature are to be decided by the civil court—
Section 2(g) of the Companies Act, 1994 confers jurisdiction upon the civil court to decide disputes under section 95 and as such the Company Court of the x High Court Division can not decide such dispute. Abdul Mohit and others Vs. Social Investment Bank Ltd. and others 13 MLR (2008) (AD) 35. ....View Full Judgment

Section 108 (1)(f)

The High Court Division correctly held that the Board meetings which could not be called to order due to lack of quorum were 'meetings' in the eye of law and the petitioner's deliberate absence without leave must be treated as 'absence' in those meetings and will attract the mischief of section 108(1)(f) of the Act and his office would fall vacant by operation of law, for which no resolution need be taken, save to record the fact of vacation of the office of the absentee in the minutes and to submit a Form XII to the RJSC and, thereafter, that director will not be entitled to receive any notice of Board meeting or to attend the meeting of the Board. The High Court Division further held that although the impugned Board resolution dated 16.02.2017 has become infructuous because of the order of stay and the subsequent EGM decision dated 17.05.2017, however, the conduct of the petitioner in deliberately absenting himself from three consecutive Board meetings, so that quorum could not be formed and the meetings could not be called to order, amounts to absence without leave in the said Board meetings, within the meaning and for the purpose of section 108 (1)(f) of the Act and the impugned Board resolution dated 16.02.2017 was valid. Such conduct of the petitioner also amounts to breach of his statutory duties and it was clearly prejudicial to the interest of the company inasmuch as a director, by resorting to any tactics or measures whatsoever, cannot lead the company to a situation in which it will become impracticable for the company to call or hold its Board meeting or any other meetings permitted or required by law. We do not find any illegality or infirmity in the impugned judgement and order of the High Court Division. ...Mobarak Hossain(Md.) =VS= SBS Cables Limited, (Civil), 2019 (1) [6 LM (AD) 194] ....View Full Judgment

Section 185(2)

Upon hearing both sides, by the im­pugned judgment, the High Court Divi­sion made the Rule absolute upon finding that BCIC is selling urea fertil­izer at Tk. 10,000/- per metric ton and showing in the balance sheet sale price of Tk.8,000/- per metric ton; that the balance sheet, therefore, does not reflect the true and correct picture of the profit and/or of loss of the company and sec­tion 185(2) of the Companies Act is being violated at the time of preparation of the balance sheet; that if the BCIC prepares an untrue and unfair balance sheet of ZFCL, the workers would be deprived of getting their due share from the profit of the workers participatory fund. BCIC vs. Zia Fertilizer Company Limited (Muhammad Imman AH J)(Civil) 8 ADC 567 ....View Full Judgment

Section 193

Nowhere in section 193 of the Act any power has been given to the Registrar to resort to a procedure of hearing of the parties on the application of a person be it a Director or the Managing Director to investigate as to whether he/she was removed lawfully or in violation of sec­tion 106 of the Act as the Director or the Managing Director of the company or for that matter to re-instate him/her in his/her said position in the company. A statutory functionary cannot assume a jurisdiction which is not vested in it by the statute. Ms. Ok-Kyang Oh vs. TeaHung Packaging (BD) Ltd (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 500. ....View Full Judgment

Section 193

Now, we are to see as to whether the Registrar had any authority to entertain the application and assume the jurisdic­tion to conduct a hearing on the same within the meaning of sub-section (6) of section 193 of the Act or whether any burden was explicitly put on the Regis­trar to afford the company concerned a right to be heard if the affairs of the company were not being managed in ac­cordance with the provisions of the Act and whether the Registrar was author­ized to investigate as to whether the ap­pellant was removed from the office of the Director lawfully or in contravention of section 106 of the Act as formulated in point Nos. 1 and 2 of the leave grant­ing order; to decide the above points we feel it necessary to consider section 193 of the Act in its entirety which reads as follows. Ms. Ok-Kyung Oh vs. TeaHung Packaging (BD) (Md. Abdul Wahhah Miah J)(Civil) 9 ADC 472. ....View Full Judgment

Section 193

In exercising power under section 193 of the Act in certain matters the Registrar is required to perform quasi-judicial function and is authorized to make some investigation as may be found neces­sary for discharging his duties including the right of hearing before imposing fine to negligent or defaulting companies, also by engaging section 397, read with section 393 of the Act, to lodge complaints in appropriate Court against those who make false state­ments through documents required by or for the purpose of any provision of the Act, but such quasi-judicial power in no way can be stretched to conduct a hearing as to the managing directorship of the Company which is the domain only of a competent Court.
Ok-Kyung Oh vs Tae-Hung Packaging (BD) Ltd 17 BLC (AD) 1. ....View Full Judgment

Section 193

The Appellate Division held that in exercising power under section 193 of the Act in certain matters the Registrar is required to perform quasi-judicial function and is authorized to make some investigation as may be found necessary for discharging his duties including the right of hearing before imposing fine to negligent or defaulting companies, also by engaging section 397 read with section 393 of the Act, to lodge complaints in appropriate Court against those who make false statements through documents required by or for the purpose of any provision of the Act, but such quasi-judicial power in no way can be stretched to conduct a hearing as to the managing directorship of the Company which is the domain only of a competent Court, so the Registrar acted beyond his statutory power in issuing the impugned notice vide annexure-'K' to the writ petition asking the writ petitioners to participate in the hearing on the re-instatement of the appellant as Managing Director of the Company.
Ms. Ok-Kyung Oh, Dhaka. -Vs.-TeaHung Packaging (BD) Ltd and others. 4 ALR (AD) 2014 (2) 13 ....View Full Judgment

Sections 210(7) & 233

The provisions of appointing auditors in the Annual General Meeting is for prospective auditing of a Company when the minority share–holders apply under section 233 of the Companies Act, the Court has inherent power to make alternative arrangements for appointment of Auditors for past years, if no auditing has taken place.
Faruk (Md) vs Abdul Hamid and others 51 DLR (AD) 48 ....View Full Judgment

Section 233

It was stated that following the signing of the said shareholders' agreement af­fairs of the company was run by respon­dent No.4 as majority shareholder and was also holding the post of Managing Director of the company. H.B.M. Iqbal vs. Md. Shirajul Islam (Md. Abdul Matin J) (Civil) 6 ADC 565 ....View Full Judgment

Section 233

The High Court Division, after hearing the applications analogously, by com­mon judgment, allowed the applications and cancelled the respective debentures as being void holding, amongst others, that (a) A member has an interest in maintaining the value of his share and he may bring himself within section 233 if he can show that the value of is share­holding is seriously diminished or jeop­ardized by reason of conduct of those having defact control of the company which is unfair to the member con­cerned. A member has an interest in competent management of a company, its profitability, dividend policy which will have effect on his financial interest as a shareholder and on the value of his shares. People's Republic vs. Dr. A.B.M. Safdar (Md. Tafazzul Islam J) (Civil) 9 ADC 901. ....View Full Judgment

Section 233

A minority share holder can petition the Court for relief if there has been fundamental breach of the rules and where the majority endeavoring directly or indirectly to appropriate to themselves money, property or advantages which belonged to the company.
Syed Al Nesar Ahmed, MD, United Food Complex Ltd vs Nafisa Choudhury and others 5 DLR (AD) 83. ....View Full Judgment

Section 233

A remedy under section 233 can be given only if the directors have acted in breach of duty or if the company has breached any of its articles or any relevant agreement. Nahar Shipping Lines Ltd and anr vs Homera Ahmed and others 56 DLR (AD) 36. ....View Full Judgment

Section 233

In the instant case the respondent No.l, who was a director as well as a joint signatory for operating the bank accounts of the company, also had a legitimate expectation to remain as such and moreover, his investment in the Company has been struck off because of his removal from directorship of the company and no opportunity at all was given to the respondent No.l to remove his capital upon reasonable terms and, as under section 233, the Court in a fit case may pass appropriate order and accordingly, the High Court Division gave direction upon the appellant Nos. 2 and 3 to purchase the shares of the respondent No.l.
HBS Association (Pvt) Ltd vs Professor Shahabuddin Khaled Chowdhury 11 BLC (AD)67. ....View Full Judgment

Sections 241, 242 and 331

The contention that decree obtained by the respondent No. l was not capable to execution and the process of realisation of the debt has become barred by law and 33 such order of winding up and liquidation of the company was not legally maintainable is of no substance since no such contention was taken before the High Court Division nor any particulars has been placed before the Appellate Division to substantiate the aforesaid contention.
Dockyard and Engineers Ltd vs Bangladesh Shilpa Rin Sangstha and others 10 BLC (AD) 131. ....View Full Judgment

Section 241

The High Court Division was very much conscious of the broad fact of huge loan liabilities of the Company and was on the view that the same has to be put at halt and also considering the provision of Section 241(v)(vi) of the Companies Act deemed it just and equitable that the Company should be ordered to be wound up. Accordingly, allowed the application for winding up of the Company and appointed official receiver as the liquidator and passed other incidental orders.
Prime Finance and Investment Ltd vs Delwar H Khan 15 BLC (AD) 170. ....View Full Judgment

Section 397

On the face of such statement made in the petition of complaint it cannot be said at this stage before recording evidence of the parties that the proceeding is an abuse of the process of the court or is, therefore, liable to be quashed under section 561A of the Code of Criminal Procedure. In such premises the High Court Division passed the impugned judgment and order and discharged the rule. Mahabubul Goni vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 660 ....View Full Judgment