ORDER
S. Balasubramanian, Vice Chairman
1. In this petition filed under Section 163 of the Companies Act, 1956 (the Act), the petitioner company has alleged that M/s Jaiprakash Industries Limited. (the company) have filed to supply copies of Register of Members in spite of repeated requests and as such sought for directions to the company to supply a certified copy of List of Members holding shares both in physical and de-mat segment in print form as well as in the magnetic media. In the reply, the company has taken a stand that there was no default on the part of the company to supply a copy of the Register of Members as the petitioner had not carried out inspection of the Register of Members before seeking a copy of the same and that the company is not required to supply the information in de-mat segment and in magnetic media.
2. This petition was originally heard by the then Member Shri C.R Das on 19th September 2002, when the counsel for both the sides argued the matter, but he demitted office on 30.9.2002 without pronouncing the judgment. In view of this, this petition was posted for hearing once again on 7.1.2003 when the advocate for the petitioner sought for adjournment. Accordingly the matter was adjourned 15.1.2003. On this day none from the petitioner’s side attended the hearing but it had sent a synopsis of arguments on its behalf with the prayer that the petition be allowed. In view of this, I did not hear the counsel for the company and took on record his written submissions. Accordingly, this order is based on the pleadings and the written submissions of the parties.
3. A summary of the arguments of the petitioner is as follows: By a letter dated 4.4.2001, the petitioner company sought for a copy of the List of Members of the company in terms of Section 163(3)(b) of the Act comprising of shares held in physical well as in de-mat form together with a copy in the magnetic media. Instead of complying with the legal obligation of complying with this request, by a letter dated 10th April, 2001, the company expressed its inability to provide a copy on the ground that the request is not in accordance with the provisions of Section 163 of the Act without indicating in what manner the request for a copy was not in accordance with the provisions of Section 163 of the Act. The petitioner again by a letter dated 16.4.2001 sought for a copy and also sent a draft for Rs. 15000/-. Once again by a letter dated 24.4.2001, the company informed the petitioner that there should be necessary compliance with the provisions of Section 163 of the Act, again without indicating the nature of compliance. Therefore, the act of the company is malafide. However, during an earlier hearing, it was pointed out that the petitioner should have carried out an inspection of the Register of Members before seeking a copy. A reading of Section 163 would indicate that the right of inspection and the right of seeking a copy of the Register of Members are independent of each other. While Section 163(1)(2) of the Act deals with right of a Member to inspect the Register of Members, Sub- section (3) deals with a right to have a copy of the same. In terms of Sub-section (4), the company is bound to supply a copy within a period of 10 days. Therefore, making inspection as a pre condition for supply for a copy of Register of members is not in accordance with the provisions of Section 163 of the Act. However, notwithstanding this legal position, the petitioner has carried out inspection subsequently on 22.5.2002 and immediately thereafter delivered a letter of request for a copy along with a D/D for Rs. 10,000. Even after this, the company failed to deliver a copy on the plea that the matter was sub-judice. Therefore now the company cannot deny the supply of a copy of the Register of Members on any ground. From the reply of the company, it is apparently clear that the inaction of the company to supply the copy is motivated the malafide as the company has brought in extraneous matters like the petitioner instituting various proceedings against the company etc. Therefore, the company should be directed to supply a copy of the Register of Members. The stand of the company that the details of the beneficial holders of demit shares cannot be furnished is also not sustainable in law. As per agreement with the depositories, the depositories periodically supply a list of beneficial owners of the shares and therefore the list of beneficial holders should also be supplied to the petitioner as it is a part of the register of members. For seeking a copy of the Register of Members, the petitioner is not obliged to disclose the reason as every member has a right to seek copies of the Register of Members. No member can be denied of this right on the ground that he has instituted certain other proceedings on different matters. By imputing mala fide on the part of the petitoner, it is the company which is acting in a mala fide manner refusing to comply with the statutory provisions. Therefore the company should be directed to supply a copy of the Register of the Members both in physical as well as in electronic mode. It has been held in SIL Imports USA v. Exim, Aides Silk Importers (1999 SC 1609) that in interpreting the provisions of law, technological advancement should also be taken into consideration. Therefore, when the company is maintaining the register of members in electronic form in addition to physical form, the company should be directed to supply copies in both the forms including a copy of the list of beneficial owners.
4. The submission of the company are as follows: This petition is not maintainable. While Sub-section (2) of Section 163 deals with the right of a member to inspect the Register of Members, Sub-section (3) gives the right to ask for a copy only to those members who have inspected the Register of Members as would be evident from the words in Sub-section (3) “any such member”. This Section may be compared with provisions of Section 196 in which the right to inspect and seek copy of the same are independent rights. Therefore, inspection is a pre condition to seek for a copy of the Register of Members. That is the reason why the company in both its letters to the petitioner advised compliance with the provisions of Section 163 of the Act. In Re Maknam Investment Ltd. and Ors. (87 CC 689 Cal.) the court has expressed a view that before asking for a copy of the list of members on payment of requisite fee, inspection should have been carried out. Therefore, since the petition was filed before carrying out the inspection, this petition itself is not maintainable and as such should be dismissed. Subsequent inspection gives a fresh cause of action and cannot relate back to the date of the present petition.
5. The company has further submitted that even assuming that since inspection has been subsequently completed, and therefor the company is bound to supply a copy, it is to be noted that the petitoner has not indicated as to copies of which of the pages of the Register of Members are to be supplied. A shareholder cannot ask for a copy of full Register of Members. Presently the company has over 1.18 lakhs active folios and about 3 lakhs folios of persons who have ceased to be members. Therefore, the petitioner should decide copies of which folios it desires to have. If the petitioner desires to have only copies of active folio, even then, it would take 6 to 7 months for the company to comply with its request. This request should be restricted only to the members who hold shares in physical form and the company is not legally bound to supply those held in demit form. About 78,000 beneficial owners hold shares in de-mat form with two depositories. The depositories supply a list of beneficial owners on a weekly basis. These lists do not contain the details of respective transferor and transferees and the name of persons who have ceased to be the beneficial owners. As per Section 150 of the Act, a company is required to maintain a Register of Members indicating therein the details specified in that section and there is no provision in that section for entering the data received from the depositories. In other words, the details of the beneficiary owner do not form part of the Register of Members maintained under Section 150 of the Act. Further, Section 152(A) of the Act also indicates that the Register and Index of beneficial owners maintained by a depository under Section 11 of the Depositories Act shall be deemed to be an index of the members for the purposes of the Companies Act. Therefore, the question of treating the list of beneficial owners as a part of the Register of Members in terms of Section 150 does not arise. In terms of Section 163(3) and (4) of the Act, a company is bound to give copies only in print from and not in magnetic form as sought for by the petitioner. The judgment of the Supreme Court in Exim Aides Silk Exporters relied on by the petitioner is not applicable in the facts of this case. There is no provision in the Act which requires the company to furnish a copy of the register of members in electronic media in addition to or in lieu of print media. Even otherwise, the observation of the Supreme Court that in view of evolving developments in Information Technology, the import of such technological development should also be taken into account in interpretation of a Statute is only an obiter dicta. In a number of cases, the Supreme Court has held that a court cannot add word to a Statute or read words into it which are not there. Since Section 163 of the Act does not stipulate supply of copies in electronic mode, the petitioner cannot demand the same.
6. The company has further submitted that when a person seeks a copy of the Register of Members, he should also indicate the purpose for which he requires the same. The petitioner has not come to this Board with clean hands and the principle that a person approaching the court should come with clean hands has been stressed in various cases like SP Singalvara Naidu v. Jaganath (AIR 1994 SC 853), Lourdu Mari David v. Louis Chinnaya (AIR 1996 SC 2814). In the present case, the Petitioner is constant litigant with the company as is evident from various details given in the reply and therefore it is seeking a copy of the Register of Members with an oblique motive which should not be encouraged by a court of equity like the Company Law Board. The petitioner has not disclosed to this Board the ongoing various proceedings initiated by it and as such has come to this Board without clean hands. Such multiplicity of proceedings including the present one would indicate that he is abusing the process of this Board and as such is not entitled for any equitable relief as held in Mahavir Prasad Jain v. Ganga Singh (1999 8 ACC 274). The petitioner could use this information to the detrimental tot he interest of the company by attempting to destabilise the management, misguiding the general public by manipulating the share price etc. Therefore, none of the reliefs sought for by the petitioner should be granted. However, If the Bench were inclined to direct supply of copies of the Register of Members, the petitoner should directed to indicate the Pages of the Register of which he desires to get copies and sufficient time should be given to the company to supply the same on payment of requisite fee as held in Fomento Resorts & Hotels Ltd. v. Mahendra G. Wadhwani (85 CC 1 Bom.).
7. First I shall deal with the contention of the company that the right to seek a copy of the register of members accrues only to a member who has carried out an inspection. Section 163 of the Act reads:
“(2) The registers, indexes, returns and copies of certificates and other documents referred to in Sub-section (1) shall, except when the register of members of debenture holders is closed under the provisions of this Act, be open during business hours (subject to such reasonable restrictions, as the company may impose, so that not less than two hours in each day are allowed for inspection) to the inspection-
(a) of any member or debenture holder, without fee; and
(b) of any other person, on payment of (such sum as may be prescribed) for each inspection.
(3) Any such member, debenture holder or other person may-
(a) make extracts from any register, index, or copy referred to in Sub-section (1) without fee or additional fee, as the case may be; or
(b) require a copy of any such register, index or copy or of any part thereof, on payment of (such sum as may be prescribed) for every one hundred words or fractional part thereof required to be copies.
(4) The company shall cause any copy required by any person under Clause (b) of Sub-section (3) to be sent to that person within a period of ten days exclusive of non-working days, commencing on the day next after the day on which the requirement is received by the company.
(5) If any inspection, or the making of any extract required under this section is refused, or if any copy required under this section is not sent within the period specified in Sub-section (4), the company, and every officer of the company who is in default, shall be punishable, in respect of each offence, with fine which may extend to fifty rupees for everyday of default.
8. Sub-section (2) deals with inspection while Sub-section (3) deals with making extract or seeking a copy. The issue for consideration is whether they are independent rights as claimed by the petitioner or the right to get a copy would be available only to a member/person who has inspected the Register as claimed by the company. To examine the counter claims of the parties a meaningful interpretation of the term “any such member…” used in Sub-section (3) is required. In doing so, beneficial reference may be made to the similar provisions of the English Act. Section 356 of the English Companies Act, reads
(1) Except when the register of members is closed under the provisions of this Act, the register and the index of members’ names shall be open to the inspection of any member of the company without charge, and of any other person on payment of such fee as may be prescribed.
(2)…..
(3) Any member of the company or other person may require a copy of the register, or any part of it, on payment of such fees as may be prescribed and the company shall cause any copy so required by a person be sent to him within 10 days beginning with the day next following that on which the requirement is received by the company
(4)—–
(5) If an inspection required under this Section is refused or if a copy so required is not sent within the proper period, the company and every officer of it who is in default is liable in respect of each offence to a fine.
(6) In the case of such refusal or default, the court may by order compel immediate inspection of the register and index or direct that the copies required be sent to the person requiring them”.
9. A comparison of the provisions of Section 163 of the Indian Act and Section 356 of the English Act would indicate similarities except that the term “any such member—–” is not found in English Act. A reading of Sub-section (1) and Sub-section (3) of that Act would reveal that the right to inspect and the right to seek a copy are independent rights. However, since in the Indian Act the term “any such member—” has been used in Sub-section (3), this Sub-section has to be read conjunctively with Sub-section (2) taking into consideration the well settled principle of law that that a literal meaning should be assigned to a statue unless the same leads to an anomaly or absurdity. The term “any such member—” should be assigned its plain meaning and if done so, it would refer to the person who has taken inspection in terms of Sub-section (2). It appears that our legislature has consciously used the term “any such member—” with the view go give the right to seek copies of the Register only to those who have carried out the inspection. The legislative intention is apparent from Sub-section (3)(a) which provides for taking extracts, which right is not provided under the English Act. To take an extract, obviously, one has to inspect the Register. In this connection, reference may also be made to the provisions of Section 196 to ascertain the legislative intent. This Section relates to inspection of minute books of General Meetings. As per Sub-section (1)(b) of this Section, the minute books shall be kept open for inspection by any member. Sub-section (2) of this Section further says any member shall be entitled for a copy of any minutes. In this Section, the words “any such member” is absent indicating very clearly that the right of inspection and the right for a copy are independent. Therefore, there is no element of doubt that for claiming the right to seek a copy of the Register of Members, the condition precedent is that the person seeking a copy should have inspected the Register.
10. The grievance of the petitioner is that the company has not furnished a copy of the Register. It is on record that before filing of this petition, the petitioner had not carried out an inspection and therefore, the company was not required to furnish a copy and as such the company is right in questioning the maintainability of the petition and seeking for dismissal of the petition. I also agree that subsequent inspection cannot relate back to the date of the petition. However, I do not propose to dismiss this petition, as during the pendency of the petition, the petitoner has taken inspection of the Register and has subsequently sent a request for a copy of the same and as such it is entitled to a copy of the Register of Members.
The company has raised a plea that the petitioner being a constant litigant has sought for a copy of the Register with a malafide intention and as such request for a copy of the Register should not be granted. It is to be noted that the Register of Members is a document which is available not only to the members of a company but also to any other person. In other words it is a public register. In terms of Section 159, every company has to file an Annual Return along with a list of members of the company has to be filed. Once a document is filed with the Registrar of Companies, it becomes a public document of which copies can be obtained by any one without the purpose being disclosed. Viewing this matte in this perspective, once a person inspects the Register, he is entitled to ask for a copy of the same, the purpose or motive being irrelevant. In this connection reference may be made to Mutter v. Eastern and Midlands Rly Co. (1988 38 Cj D 92 CA) and Bloam v. Metropolitan Rly Co. (1868 3 Ch App 337), wherein the Court has held the person seeking a copy is hostile to the company is no defence to deny his statutory right to the same. Thus the objection of the company that the purpose for seeking a copy being malafide cannot be sustained.
11. The petitioner, in addition to a copy of the Register in print media, has also sought for a copy in the magnetic media as also a copy of the beneficial owners of the shares held in the demit form on the ground that it forms part of the Register of Members. As far as a copy of the Register in print from is concerned, I have already held that the petitioner, having inspected the Register is entitled for the same. As far as a copy in the magnetic media is concerned, such a prayer cannot be entertained for two reasons. One is that, in terms of Section 163, a member is entitled to a copy of the Register. Once the petitioner has sought for a copy in the print form, he is not entitled for a second/another copy in the magnetic media. The second is that when a person exercises a statutory right, the same has to be within the frame work of that statutory right. In terms of Section 150 of the Act, every company is mandated to maintain a Register of Members in print form and there is no mandatory provision to maintain the same in a magnetic media. A company may, on its own, choose to maintain the same in a magnetic media, in addition to print form and not under any statutory provision. I am of the view that the observation of the Supreme Court in Exim Aides Silk Exporters case are not applicable in the present case, as the issue in that case was whether a notice sent by a fax could be considered to be a “notice in writing” by registered post. While considering this matter, the Court held that when the legislature contemplated that notice in writing should be given to the drawer of a cheque, the legislature must be presumed to have been aware of the modern devices and equipmentsd already in vogue and in store in future and therefore, the notice sent by the fax was a notice in writing. But in the present case, the petitioner is seeking to enforce a statutory right and as long as there is no mandatory provision to maintain the Register in magnetic media, the petitioner cannot demand a copy of the Register in magnetic media maintained optionally by a company as the same is outside the scope of Section 163.
12. Now relating to the prayer for a copy of a list of beneficial owners. This petition has been filed under Section 163 of the Act seeking for a
copy of the Register of Members. Register of Members is kept in terms of Section 150 of the Act which stipulates that the said Register should contain the following particulars:
(a) the name and address and the occupation, if any, of each member.
(b) in the case of a company having a share capital, the shares held by each member distinguishing each share by its number except where such shares are held with a depository and the amount paid or agreed to be paid on those shares
(c) the date at which each person was entered in the register as a member and
(d) the date at which any person ceased to be a member.
13. From the above, it is clear that the Register should contain the names of all members of a company, which would mean those registered as owners of the shares. In terms of Section 6(2) of the Depositories Act, the name of the Depository is entered in the Register of Members of a company as registered owner of the demit shares and once the name of the Depository is entered in the Register of Members, the said register is complete in respect of all the shares issued by the company fulfilling the requirements of Section 150 of the Act. “Beneficial owner” is define in the Depository Act as a person whose name is registered as such with a depository and the Register of beneficial owners is maintained only by the Depository in terms of Section 11 of that Act and not by the company and the company only receives a status list of the beneficial owners periodically. Neither Section 150 refers to the list of beneficial owners as a part of the Register of Members nor Section 163 refers to the same as to be made available for inspection and seeking a copy of the same. Under these circumstances, the question of directing the company to furnish a copy of list of beneficial owners in terms of Section 163 does not arise.
Having held that the petitioner is entitled to only a copy of he Register of members in print form, the question is, whether it has to specify the details of the pages of the Register as pleaded by the company, Section 163(3)(b) only says “require a copy of the Register—” to indicate that one can seek a copy of the entire Register without identifying specific pages. This being the position of law, the company cannot insist the petitioner to either identify or authenticate the pages of the Register required by it. However, considering the relationship between the petitioner and the company being what it is, to avoid any further grievance by the petitioner that the company has not given a copy of the complete Register, I feel that, in this case, it would be in the interest of the petitioner and the company that the petitioner should authenticate the pages of the Register. Accordingly I direct the company to furnish to the petitioner copies of all the pages in the Register authenticated by the petitioner on receipt of the prescribed fees. Since the number of folios is very large, even though the company has sought for a time of 6 to 7 months, for supply of copies of the active folios, I grant a period of 4 months form the date of receipt of the prescribed fees along with a list of authenticated active folios from the petitioner, for the company to supply copies of the same in print from. In case, the petitioner desires copies of dormant folios also, the company is at liberty to move this Bench for extension of time. However, the company should try to supply the copies at the earliest.
5. The petition is disposed of in the above terms without any order as to