9911796707
TMI Blog2017 (10) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... istered 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. 3. It is submitted by the petitioner(s) that initially, a nursing home under the banner of the said Company was built at Circus Maidan, Katwa, P.O. Katwa, District-Burdwan on the land and building owned by the three shareholders/directors i.e. the petitioners and the respondent No.2. Since the Respondent No.2 is a resident of Katwa and has experience and knowledge in the medical profession, he used to look after the day-to-day business of the said nursing home. The petitioner No.2 also assisted him in running the day-to-day affairs of the company. The petitioner No. 1 was busy in expanding the business of the company by opening new nursing homes in various districts of West Bengal. For the purpose of promotion of the business activities of the company, marketing and expansion, the petitioner No. 1, mainly operated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and 28-04-2006. 7. The petitioner(s) alleged that the respondent No. 2, on 29-10-2006, broke the security of the nursing home and forcefully removed the petitioner No. l from the nursing home and again took control of the business of the company. The Respondent No. 2 also removed several papers, resolution and minute books, bills, vouchers, bank statements etc. from the registered Office situated at 14, Ultadanga Road, Kolkata - 700 004. The petitioners duly reported such event before the Burtolla Police Station. 8. It is allegation by the petitioner(s) that a purported board meeting was called on 31-07-2008, wherein 6,700 equity shares were issued and allotted to the respondent No. 2. Form 2 has been filed by the Respondent No. 2 behind the back of the petitioners. The petitioners were neither given notice of the said board meetin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, is the brother in law of the Respondent No. 2 who is a qualified medical practitioner practising in the District of Burdwan at Katwa. 13. The petitioner No. 1 is engaged in other business, mainly in manufacturing various types of batteries and plying of private buses and such business was carried on from the premises No. 14, Ultadanga Road, Kolkata -700 064. Since the business of the petitioner No. 1 was not fairing profitably, the petitioner No. 1 proposed to the Respondent No. 2 to engage in a business of dispensing medical services especially, since the respondent No. 2, himself is a reputed medical practitioner. The petitioners and the Respondent No. 2 contributed in equal shares in construction of the building for the nursing home. 14. The respondent(s) submitted that even though the registered office of the company was in Kolkata, the Nursing H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shares of Rs. 10/- each to 17,800 equity shares of Rs. 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 also submitted by the Respondent(s) that as a part of such amicable settlement between the parties, it was agreed that regarding the three flats situated on the second floor of the nursing home building which were reserved for practising doctors attached to the nursing home, the petitioners would get one each and one would be allotted to Respondent No.2. Accordingly, the petitioner Nos. 1 and 2 and the Respondent No. 2 are presently in possession of one flat each at the said premises. 20. It was also agreed that the petitioner(s) would be relieved of their duties in near future, and accordingly, the respondent No. 3 was inducted on the Board of Directors with the consent of the other Directors in a Board meeting held on 28-08-2008. It is further stated by the Respondent(s) that in an application for appointment of Receiver made by the petitioner(s) before the ld. City Civil Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ountant 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 the respondent No. 2 with regard to the dispute arising out of illegal occupation of the second floor of the Nursing Home building (the company). The said space was specifically reserved for the purpose of visiting doctors. Thereafter, another notice was sent on 15.11.2005 (Annexure-F) - Pages 102 - 105. 28. On perusal of the records it also reflects that during the relevant time the petitioner filed number of FIRs at Katwa, P.S. Katwa. Admittedly, the allotment of shares by R.2 to self was taken place on 31.07.2008 and appointment of R.3 was taken place on 28.08.2008. To that effect Form 2 and Form 32 (Page Nos. 135 and 141 of the petition) is filed with the ROC. The said fact is well within the knowledge of the petitioner as also admitted by the petitioner himself in the petition. But since then till 20.04.2014 i.e. till filing of the instant case, the petitioner was sitting idle and allowed the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed 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 words, the court would refuse to exercise their jurisdiction in favour of the party who moves them after considerable delay and is otherwise guilty of laches. The principle embodied in the Equites Maxim "delay defeats equity" and for the statute of the limitation is intended to discharge unreasonable delay for presentation of the claim and enforcement of right. Claims which have been delayed unreasonably in being brought forward may be rejected. In this regard, a reliance may be placed on seven judges' judgment rendered in the case of State of M.P. v. Bhailal Bhai AIR 1964 SC 106 where if the delay is more than the period prescribed by the Limitation Act, then it would be appropriate by the court to hold that it is unreasonable, the court ought not ordinarily to lend its aid to a party guilty of delay. A similar view is also taken in MTNL v. State of Maharashtra [2013] 9 SCC 92 - Hon'ble Supreme Court observed that in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 based on equitable consideration and depends on general principle of justice and fairplay. Therefore, on the point of delay and laches, the petition is also liable to be dismissed. In this regard, it is pertinent to mention the case of Beladore Silk Ltd. [1965] - on Re 667 it has been held as under at page 672 : "A petition which is lodged not with the genuine object of obtaining relief prayed but with the object of exerting pressure in order to achieve co-lateral purpose is that, in my judgment, an abuse of process of the court and it is primarily on that ground that I would dismiss this petition." 34. As discussed above, I find that the petition filed by the petitioner is not maintainable though attempt has been taken to rake up the issues bifurcating the civil courts on the self same cause of action. Even otherwise, the petition is not only tenable for delay and laches but it is also bereft of merit and C.P. No 179/2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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