9911796707
TMI Blog2001 (9) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... e directors, viz Mrs. Munera Khatoon (wife of late Nasir Ahmed); Mr. Shahnawaz Akhtar (son o late Nasir Ahmed) and Mr. Seraj Ahmed (brother of late Nasir Ahmed). Nasir Ahmed died in 1994. Late Enamul Haque, a Mohammedan, who was the owner of 697 shares of the respondent company died on 23.6.1984 and left a will. By his late will and testament dated 5 January, 1983, late Enamul Haque, inter alia, bequeathed the said 697 shares of the respondent company in favour of his second son, viz., Mr. Khurshid Alam, the petitioner herein. Late Haque died leaving behind his wife, Hasina Begum (since deceased), five sons (Mr. Masood Alam, Mr. Khurshad Alam, Mr. Jamshed Alam, Mr. Jahangir Alam and Mr. Mahmood Alam), and one daughters (Ms. Shagufta Yasmin) who was married to Mr. Iqbal Ahmed, and thereafter she became Mrs. Shagufta Iqbal. In the last will and testament dated 5.1.1983 of late Enamul Haque, it has been mentioned, inter alia, that: .....I direct that after my death, my son Khurshid Alam shall get my entire share absolutely and for ever, which are 697 shares in numbers standing in my name in the said P. Pagnon Company (P) Ltd. which constitute about 49.71 per cent of the total subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the petitioner to take recourse to appropriate provisions of law for seeking redress from a competent legal forum. Along with the said letter, the General Seceretary of the society forwarded a copy of the recommendation of Haji Mohammed Mustafa, Chairman, Social Justice sub-Committee in the subject arbitration case. The petitioner instituted a civil suit being titled suit No. 34 of 1994 before the second court of the Civil Judge (Sr. Division) at Alipore, sometime in 1994, against Mr. Masood Alam (elder brother of the petitioner) and others for partition of metes and bounds in respect of the property and accounts of late Enamul Haque (father of the petitioner). In course of the said proceedings, the petitioner (the plaintiff of the said suit) had filed an application dated 26.11.1998, stating, inter alia, that: (i) It has been discovered that the petitioner's father had executed his last will and testamount dated 5.1.1983 prior to his death with consent of all his heirs and deposited the same with his advocate, Mr. Mumtazuddin, who had since delivered the same to the petitioner's elder brother, the defendant No.1. (ii) At the request of the defendant No. 1 the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt company and finally, the Regional Director, by his letter dated 6.12.1999, advised the petitioner that the respondent company had not accepted the will and testament of late Enamul Haque, as genuine and as a result, the said Directorate could not do anything to redress the petitioner's grievances for non-transmission of 697 equity shares of late Enamul Haque is the name of petitioner. The said directorate had also closed the matter. The petitioner then approached the Company Law Board ('CLB') for rectification of register of members of the respondent company to include his name in respect of the said block of shares now standing in the name of his father, late Enamul Haque. 2. The respondent Nos. 1, 2 and 3 filed an affidavit opposing the grant of the relief prayed for and the respondent No. 4 also filed separate affidavit adopting the same stand taken by the respondent Nos. 1, 2 and 3. The petitioner filed rejoinder to the said affidavits-in-opposition. The respondents while refuting all the allegations of the petitioner, have stated that the petitioner has deliberately suppressed material facts and has made misleading allegations in the petition. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esolved that the will seemed to be not genuine, and the company had reasons to believe that the same must have been brought into existence with an attempt to practice fraud on the company and on all concerned, and as such, it was decided that mere production of purported will was not enough but the complainant should be requested to produce proper documents for consideration of the company. Moreover, the petition is hopelessly barred by the law of limitation, particularly, when question of declaration and consequent transfer of shares of involved. The respondents have denied that Enamul Haque, a Mohammedan, by his last will and testament dated 5.1.1983, inter alia, bequeathed the said 697 shares of the company in favour of his second son, the petitioner. The respondents have also alleged that the death certificate of late Enamul Haque is not a geninue one, inasmuch the said Enamul Haque died at his residence at 31/7, Miazen Ostagur Lane, Kolkata 700 017 and his late rites were performed at the Iraqi Burial Ground in Kankurgachi, Kolkata, where as the death certificate shows that at the time of death the said Enamul Haque was at Hazi Muhammed Mohasin Road, Budge. The respondents' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents, submitted that the petition is barred by the law of limitation, particularly, when the question of declaration and consequent transfer of shares is involved. The purported will and testament dated 5.1.1983 of late Enamul Haque is not a genuine one as it was brought into existence subsequent to the notice dated 5.3.1986, and even the said notice did not disclose that the petitioner and his brothers had a sister and their mother was alive at that time. While the company is duty bound to act in accordance with law, but it is not duty bound to register the transmission of 697 shares in favour of the petitioner, particularly, when the petitioner did not approach the company with clean hands, and the purported will of late Enamual Haque relied on by the petitioner in connection with such transmission, was not prima facie genuine. Moreover, other legal heirs and representatives of late Enamul Haque have not been made parties to the instant proceedings. The Company Law Board cannot compel the company to register the transmission of 697 shares of late Enamul Haque in favour of the petitioner, particularly when the Department of Company Affairs, to whom the petitioner lodged compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such, the prayer of the respondents' counsel to relegate the parties to a civil suit in inappropriate and inapplicable. Learned counsel further argued that there is no time limit for approaching the company by the heirs and legal representatives of the deceased member. He further argued that no limitation in applicable in the instant case as the Company Law Board is not a 'court' within the meaning of the Limitation Act. It transpired from record that for the first time the Board of directors of the respondent company had decided in their meeting held on 22.9.1999 that the will was not genuine one and, as such, no transmission of shares need be effected. Before approaching the Company Law Board, the petitioner, being a Muslim sect, referred his case of non-transmission of shares to a religious society established under Mohammedan Law, Known as 'Iraqi Welfare Society', registered under the West Bengal Societies Registration Act, 1961, for settlement of his disputes, and also pursued his case with the Registrar of Companies, West Bengal, and the Regional Directorate at Kolkata for redressal of his grievances. Furthermore, when all the legatees, heirs and legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout there being any such material, that the will was not genuine and calling for probate or letters of administration when the same was not required to be obtained in respect of a will executed by a Mahanaden which after due proof could be admitted in evidence. 9. There is another aspect of the matter. Enamul Haque died in June, 1984, and the will was alleged to have been executed on 5.1.1983 and kept with his lawyer. Though almost 15 years have gone by, yet there was no other claimant for the shares or any counter claim made by anyone else over the shares in question. Under the circumstances, there was no need for the respondent company to insist on filing succession certificate and or letters of administration/probate. The Company Law Board had taken a similar view in the case of Kailash Narain Bhangadia v V.S.T. Industries Ltd. (1997) 2 Comp LJ 254 (CLB) : (1997) 25 CLA 86. 10. On a consideration of the matter, and in the facts of the instant case, we are of the opinion that the respondent company was not justified in refusing transmission of shares in favour of the petitioner by raising doubt about the genuineness of the will as well as the death certificate by raising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany Law Board. If so, then the application for condonation of delay can be considered under Section 5 of the Limitation Act. In regard to the application of the Section, the settled law as propounded by the Supreme court in a number of cases is that the term 'sufficient cause' in Section 5 must receive liberal construction so as to advance substantial justice, and generally delays in bringing the appeal are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fide in imputable to the parties seeking condonation of delay (see G. Ramagauda v Land Acquisition Officer AIR 1988 SC 897). It may not be out of place of mention that in the case of Smt. Nupur Mitra's case, supra, the petition under Section 111 of the Act was filed nearly 50 years after the allotment of shares and the Company Law Board [had] dismissed the petition as time barred, [but] the order was set aside by the Division Bench of the Calcutta High court which decision was confirmed by the Supreme Court, and the matter was remanded back to Company Law Board for consideration afresh. Learned counsel for the respondent has, however, placed reliance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should always be relegated to suit, the very objective of the legislature in conferring jurisdiction to the Company Law Board under Section 11 and providing such wide powers would be defeated making the same purposeless and nugatory. In most cases, under this section, one or more complicated issues always arise and the jurisdiction of the Board can be sought to be outsted by the conduct of the parties by setting up the plea of involvement of complex questions of law and/or facts. Therefore, considering the facts that the Company Law Board is the specified forum to exercise jursidction under Section 111, it would not be in order to find itself with any specific provisions. Whether an issue -- be it a fact or a point of law -- is complicated or not itself is a matter to be established. In this case -- we do not find the issue so complicated that they cannot be decided in a summary manner. No doubt, the conduct of the petitioner is a very relevant factor to be taken into account, but taking into account the materials on record, we have not considered the conduct of the petitioner to be such that we cannot use the discretionary powers to entertain this petition and adjudicate upon the ..... 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