Act/Law wise: Judgment of Supreme Court of Bangladesh (HCD)



Companies Act, 1994
Section/Order/ Article/Rule/ Regulation Head Note Parties Name Reference/Citation
Section 2(1)(d), 3(1), 43 and 233

Let it be known to all, if it is not already known, that civil Courts of our country are well-competent, and in fact better equipped, to deal with all the provisions of the Companies Act; it would be a misconstruction of Section 2(1)(d) and Section 3(1) of the Companies Act to hold that the civil Court’s door would be available only for those cases for which the Companies Act does not specifically mandate the Company Court to entertain an application. The basis of the above proposition is that there is no expression in Sections 2(1)(d) and 3(1) of the Companies Act by which the jurisdiction of the civil Court has been taken away. And, that is why, this Court on some occasion, but not on regular basis, suggests a petitioner under Section 43 or Section 233 of the Companies Act to approach the civil Court where serious complicated question of facts are involved necessitating recording of testimonies of a number of witnesses. This Court very seldom adopts the aforesaid path only in the rarest of rare cases on the ground of its overwhelmingly over-burdenness of cases; not on the ground that this Court is powerless/incompetent to record oral evidence. ...Engr. Md. Anwar Hossen Vs. Chittagong Club Ltd & ors., (Civil), 15 SCOB [2021] HCD 60 ....View Full Judgment

Engr. Md. Anwar Hossen Vs. Chittagong Club Ltd & ors. 15 SCOB [2021] HCD 60
Section 20 & 87(2)

It is also found that attempts at the EGM held on 20.11.2013 to introduce changes in Article 14, thereby, facilitating the induction of the Respondent No.3 as a director, were equally unwarranted in law and irregular in form. Notably further, this EGM was held upon notice on 10.11.2013 to adopt a special resolution, thereby, falling far short of the statutory twenty-one days’ notice requirement mandated under Section 87(2) of the Act. That in turn exposes the Company to violation of Section 20 of the Act that authorizes alteration of the Articles by special resolution but only by necessary adherence to the notice period requirement of Section 87(2). ...Shamsur Rahman Vs. Zhang Yu & ors, (Civil), 4 SCOB [2015] HCD 12
Relationship between the Articles and the law:
The Articles, as a negotiated constituent document of the Company, in turn must correspond to a higher authority which is the law itself. Indeed, it is this indivisible relationship between the Articles and the law and the fact of such Articles being the outcome of careful negotiation by free will and for business expediency executed by subscribers of the memorandum that clothes the Articles with an essential binding nature. ...Shamsur Rahman Vs. Zhang Yu & ors, (Civil), 4 SCOB [2015] HCD 12 ....View Full Judgment

Shamsur Rahman Vs. Zhang Yu & ors 4 SCOB [2015] HCD 12
Section 43 and 44

In this case, if the meaning of the word ‘omitted’ is taken as ‘suspended’, then, it shall create a chaos and confusion for the persons who would approach this Court for striking down/deleting the name of a person from the Register of the Members of the company in that the respondent would have the scope to make out a case for suspending the name instead of omitting it, which this Court cannot do and, in fact, has never made any order in that direction making the operation, application and use of the provisions of Section 44 of the Companies Act nugatory. This Court, in the aforesaid type of scenario, either has rejected the petitioner’s application for omitting a person’s name from the Members’ Register or has ordered the company for rectification of the Members’ Register by omitting the name-in-question from the Members’ Register. So, it is apparent that the facts and circumstances of the petitioner’s case do not attract the provisions of Section 43 of the Companies Act. ...Engr. Md. Anwar Hossen Vs. Chittagong Club Ltd & ors., (Civil), 15 SCOB [2021] HCD 60
Court cannot be adventurous for expansions of its jurisdiction going beyond the scope of the law:
Since this Court now-a-days shows its inclination to receive and dispose of a case wherein a complaint about dereliction/violation of any provisions of law is made, in spite of absence of an enabling provision permitting a petitioner to approach this Court, the present case could have been entertained by this Court had there been an apparent non-compliance/violation of any provision of the Companies Act. But the present case merely involves adjudication of a grievance as to non-compliance with the provisions of Memorandum of Association and Articles of Association of the club; no provision of the Companies Act directly is resorted to for disposal of the petitioner’s case. It is for information of all the concerned that this Court is always in favour of remedying a petitioner ignoring the technical issues of a case even in a roundabout manner; but the Court cannot be adventurous for expansions of its jurisdiction going beyond the scope of the law. Therefore, when this Court finds that it has not been empowered to try a case/suit/proceedings, this Court becomes helpless to extend its hands to be petitioner. ...Engr. Md. Anwar Hossen Vs. Chittagong Club Ltd & ors., (Civil), 15 SCOB [2021] HCD 60 ....View Full Judgment

Engr. Md. Anwar Hossen Vs. Chittagong Club Ltd & ors. 15 SCOB [2021] HCD 60
Sections 95 and 233

Companies Act [XVIII of 1994]
Sections 95 and 233 read with
Company Rules, 2009
Rule 8
The High Court Division is of the opinion that reading section 233 with section 95 of the Act and rule 8 of the company Rules, 2009 this court has jurisdiction to decide about the validity of a meeting held without complying with the provisions of section 95 and to cancel any resolution taken in such a meeting under section 233 as well as for ends of justice. Mr. Mohd. Abdul Wadud -Vs.- The Heaven Homes Private Limited represented by its Chairman Mr. Kohd. Abdus Salam and others. (Spl.Original) 2019 ALR (HCD) Online 382 ....View Full Judgment

Mr. Mohd. Abdul Wadud -Vs.- The Heaven Homes Private Limited represented by its Chairman Mr. Kohd. Abdus Salam and others 2019 ALR (HCD) Online 382
Section 233

The High Court Division has also considered the submission, as advanced by the learned Advocate for the respondent that, section 233 of the Act protects the interest quo member. But, the question whether such interest shall refer only to the direct interest of a member or to ultimate interest to see that the company is being managed properly and as per law was neither agitated nor decided in the aforesaid decisions referred to by the learned advocate for the respondent. A Member’s interest, in my considered opinion, is not confined only to his individual interest. But shall extend to his ultimate interest as well and in his inter-est to ensure that the company is being managed and run properly, profitably and in compliance with the provisions of law. Once the complaining share holder is able to show mismanagement of the affairs of the company, resulted either from non-compliance of law or otherwise, a petition under section 233 of the Act is maintainable and the court may pass appropriate order to undo the wrong resulting from non-compliance of the provisions of the Act or of the Articles of Association. Otherwise, the purport and the legislative intent in incorporating section 233, in the Companies Act, will be frustrated. The sprit of section 233 is to be considered to ensure corporate governments as well and to require fairness in managing the affairs of the company by the Board of Directors or majority share-holders. Mr. Mohd. Abdul Wadud -Vs.- The Heaven Homes Private Limited represented by its Chairman Mr. Kohd. Abdus Salam and others. (Spl.Original) 2019 ALR (HCD) Online 382 ....View Full Judgment

Mr. Mohd. Abdul Wadud -Vs.- The Heaven Homes Private Limited represented by its Chairman Mr. Kohd. Abdus Salam and others 2019 ALR (HCD) Online 382