The advantage of one forum over the other may lie, amongst others, by the fact that one forum deals with the disputes within a shorter time. Thus, a party which knows that it is in the wrong may seek to avoid this forum and if a case has been filed there, it will vehemently object to the jurisdiction of the forum and have a round of fight over this issue only.

Thisissue is relevant for shareholders and, indeed, to all persons dealing with a company. Any person seeking legal action against a company may have to inquire whether it should file the case with the company court which, in many circumstances and for various reasons, resolves the matters speedily, particularly when the matter is to be decided summarily. However, a party seeking that the matter be unduly prolonged would attempt to have the matter decided by a civil court. He knows the true meaning of the proverb - justice delayed is justice denied! This is not to put any of the judicial forums in any negative light. The point is only to highlight that in many cases, parties seek to avoid a particular forum solely to unduly delay the matter.

Take the case of Bipin K Jain v Savik Vijay Engg Pvt Ltd (1997) 91 Comp Cas 835 decided by the Company Law Board. In this case, the petitioners alleged that they had acquired 100 per cent shares of the respondent company. They had allegedly paid the money to acquire theshares by cheque, obtained proper receipt for it, obtained certified board resolution for transfer of the shares in their favour, etc. However, they alleged, the company did not finally transfer the shares. The respondents simply argued that the shares were not sold at all and the payment represented a mere loan. All other documents in possession of the acquirers were said to be forged! The Company Law Board has powers to order transfer of shares. The question is, to what extent will it inquire into the minute facts of the case to determine who is right? Should it inquire into every allegation made by the party or every defence made by the other party? The respondents in this case argued that the facts were seriously disputed by them and the matter should be relegated to a civil court which could decide on the facts.

In this case, particularly for another reason that the transfer documents were found to be understamped, the Company Law Board upheld the refusal to transfer and also asked the parties to getthe matter decided by a civil court.

Of course, we do not know who was right in the above case and, hence, we cannot make any comments. But let us assume for one moment that the acquirers were right. Let us also assume that other defects such as understamping did not exist. If a party has genuinely acquired the shares and has substantial documents to prove it, should the matter still be relegated to a civil court merely because the other party disputes every fact and raises other allegations such as fraud, etc.? One way to look at the aforesaid decision of the Company Law Board is that where there are complicated questions of facts, the matter should be decided by a civil court. In fact, many parties in other cases are arguing that this is what the Company Law Board has decided and, therefore, it is argued vehemently that the matter should be dealt with by a civil court.

It is respectfully submitted that the decision of the Company Law Board should not be applied generally and should be said to be basedon the peculiar facts. In any case, it is respectfully submitted that the ratio of this decision is substantially diluted by a subsequent decision of the Supreme Court in the Ammonia Supplies case. In this case, the Supreme Court said that though the powers of the Company Court are to deal with the matter summarily, the court should look at the facts before it and decide whether it can resolve the issue from them.

Merely because one party disputes the facts, the court should not ask the parties to get the facts resolved in a civil suit. This decision, it is respectfully submitted, dilutes the impact, if any, of the aforesaid decision of the Company Law Board. Nevertheless, since the court has said that the court shall exercise discretion in the matter, it is likely that one or more parties would still argue, by making various allegations, that complex issues of facts arise which the Company Law Board cannot deal with.

In conclusion, it can be stated that so-called "forum-shopping" is nothing new inlitigation. However, it will be up to parties to present as detailed facts before the court as possible to enable it to determine that no serious disputes of facts exist and the decision be rendered by the court itself. Though the Supreme Court has left the matter to the discretion of the Company Court to be decided on the facts of each case, clearly, it is submitted, the onus is on the party alleging that complexities of facts exist to substantially demonstrate it. Mere allegations will not be enough. To this extent, the decision of the Supreme Court is very helpful to persons seeking legal recourse to get speedy justice against wrongful acts by the company or involving the company.

The author is a chartered accountant