9911796707
TMI Blog2017 (10) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent : Ritobroto Mitra, Sayantan Das and Dwidhiti Bhaduri, Advs. ORDER The instant Company Petition No. 179/2014 has been filed by the petitioner(s) on 12-11-2014 under Sections 58, 59 of the Companies Act, 2013 and under Sections 237, 397, 398, 399, 402, 403 and 406 of the Companies Act, 1956. The brief fact of the case is: 1. The Respondent No. l, Company, M/s. Matrikalyan Nursing Home Pvt. Ltd., was incorporated on 29th of October, 1990 on partnership principles having its registered Office at 14, Ultadanga Road, Kolkata but the Respondent(s) have wrongfully shifted to Kachhari Road, Kalna, Burdwan as alleged. But in the reply, the respondent(s) admitted that some typographical error occurred while giving the list of share of the Respondent No. 1, Company, wherein the address of the registered Office has been wrongly shown as Kachhari Road, Kalna, Burdwan. As on date, i.e. on July 31, 2008 the registered office of the Company was at Ultadanga Road, Kolkata. 2. The petitioner(s) and the respondent No.2, who are known to each other, as family friends, are the promotor directors of the Company and they hold equal number of shares of and in the company. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors. 5. It is submitted that the petitioner(s) issued a notice dated 30-09-2005 to the said respondent(s) to vacate the said premises. Despite repeated notices, the respondent No. 2 neither gave vacant possession of the said flat premises nor paid occupation charges to the tune of ₹ 4000/- per month to the company. Moreover, the respondent No. 2 was siphoning off the revenue earned from the said nursing home situated at Katwa. 6. The petitioner(s) alleged that when the petitioner No. 1 protested regarding such misappropriation of funds of the company by the Respondent No. 2, the said respondent became furious and brought some local hooligans, who have physically assaulted the petitioner No. 1, as well as the staff working at the said nursing home on 19-01-2006. Then on 22-01-2006, the said respondent broke open the padlock of the chamber of the petitioner No. l and stole several valuable title deeds, minute books and other documents of the company. The petitioner No. l reported these incidents to the local police station at Katwa. The respondent No. 2, had collected the case payments made by the patients at the time of their discharge from the nursing home on 26-04-2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s). 11. It is further alleged by the petitioner(s) that the respondent(s), by illegal practice, stopped operation of the main bank account of the Respondent No. 1, Company vide Current Account with the State Bank of India, Katwa Branch since 26-10-2006 and instead of operating the principal bank account, the Respondent No. l, Company has opened an account in the Central Bank of India, Katwa branch wrongfully and in violation of the Articles of Association of the Company and also attempted to open account with the Axis Bank, Katwa Branch without reflecting those account in the balance sheet and thereby siphoning of company s earnings for their wrongful gain. The petitioner(s) further alleged that M/s. Arup Associates, is the statutory auditor of the Respondent No. l, Company but the Respondent(s) without having any resolution and without any consent of the petitioner(s), who are the Directors in the Company, and without removing M/s. Arup Associates, wrongfully and illegally appointed the Respondent No. 5 as the Auditor of the Company. 12. The Respondents have denied all the allegations made by the petitioner(s) in the Company Petition and submitted that the petitioner No. 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eupon the petitioner(s) represented that the same could not be done, since the files had been shifted to the registered office and were meant to be kept at the registered office. The Respondent(s) stated that the petitioners had also all of a sudden alleged the Respondent No. 2 of collecting monies from his private patients and not depositing the same with the Respondent No. 1, Company which is nothing but a concocted frivolous allegation. 18. Under the circumstances, the petitioner(s) informed the Respondent No. 2 that they wanted to part ways and filed a Civil Suit in the City Civil Court at Calcutta being T.S. No.3322 of 2007. It is further submitted by the Respondent(s) that in the process of parting ways, the petitioners had agreed in a Board meeting held on 31-07-2008 that the paid up share capital of the Company would be further increased from 11,100 equity shares of ₹ 10/- each to 17,800 equity shares of ₹ 10/- each and it was specifically agreed that further shares to such extent would be allotted in favour of the Respondent No. 2. Accordingly, 6,700 shares were allotted in favour of respondent No.2 with the consent of the petitioner(s). 19. It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent(s) have denied of having any oppression or mismanagement of the Respondent No. 1, Company by them. On the contrary, they submitted that the petitioner(s) have been forum shopping by filing the Civil Suits being TS No. 3322 of 2007 before the City Civil Court at Calcutta on the self same cause of action, wherein the Respondent No. 2 has been appointed as Receiver to look after and manage the affairs of the Respondent No. l, Company. 26. Heard both sides at length. Perused the petition, reply and relied upon documents. On meticulous perusal of the records, it is found that the main dispute as alleged by the petitioner are: (i) Respondent has wrongfully increased its share from 33.33% to 58.43% on or before 31.07.2008. (ii) Respondent No. 3 has been illegally appointed as director of the company with effect from 28.08.2008. (iii) R.4, R.5 and R.6 Company Secretary and Chartered Accountant are wrongfully appointed in the company. 27. Before proceeding into details/merits of the case, I find it expedient to deal with the points of delay and laches. Admittedly in paragraph No. 6(f) of the petition, for the first-time petitioner issued notice on 30.09.2005 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... City Civil Court. However, the fact remains that there has been a civil suit filed in the City Civil Court by the petitioner on the same set of cause of action. 31. I may like to add that from the perusal of the decision in the case of Sardar Iqbal Singh v. Sardar Gurbux Singh [2000] 24 SCL 526 (CLB) it was observed by the then Company Law Board, (now National Company Law Tribunal) has been taking a consistent stand to avoid conflicting decisions on common issues that, if a proceeding has been initiated in civil court before filing petition before the NCLT, on issues covered in the petition, CLB (Now NCLT) would either stay proceedings or dismiss the proceeding, unless earlier proceedings are withdrawn. Same view is taken in Raghubir Singh v. Sikri Multiplex [2009] 93 SCL 188 (Punj. Har.) High Court. It appears that the petitioner has adopted forum shopping and while filing the petition before this bench has suppressed the material fact with regard to the pendency of the civil suit. 32. While dealing with delay and laches it is a fundamental principle of administration of justice that the court will aid those who are vigilant and who do not sleep on their right. In other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1956, Act he is necessarily.... Equitable jurisdiction to the Tribunal Section 402 of the Act expressly provided that the Tribunal is empowered to pass any order which it considers as just and equitable. Similar provision has been made under Section 403 of the Act empowering the tribunal with the power to pass any interim order as it deems just and equitable. Similar provision has now been made under Section 242(2) of 2013 Act. Therefore, from that point of view also his petition is liable to be dismissed as barred by delay and laches. 33. In the instant case, admittedly the dispute arose some time in 2005 i.e. 9 years back and in between the petitioner upheld his grievances before the civil court as well as also in the Hon ble High Court and then filed the instant application under Sections 397 and 398 of the Companies Act, 2013 and thereby has adopted a forum shopping. However, otherwise also the instant petition is hopelessly barred by limitation as per the provisions of Limitation Act. The delay and laches do apply which started from the date of knowledge. Admittedly, the date of knowledge is from the year 2005 as reflected in the petition. The doctrine of laches is base ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
