9911796707
TMI Blog2019 (4) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... ch allegations, article 113 of the Schedule to the Limitation Act would apply and the period would be three years from the date when right to sue accrues. It was further held that section 5 of the Limitation Act with regard to condonation of delay would not apply to the proceedings before the Tribunal as it is the original court of jurisdiction and the petitions before it under sections 241 and 242 are in the nature of suits. The adjudication by the Tribunal would result into passing of a decree which is executable by virtue of sections 424 and 425. Tribunal rightly held that the decisions in the petition under sections 397 and 398 of the Act, are enforceable like decree and for all purposes, is suit within the meaning of Code of Civil Procedure. It was also affirmed that article 113 of the Limitation Act, providing a period of three years would be attracted. The petitioner has attached copy of notice of the extraordinary general meeting proposed to be held on June 30, 2009 annexure P10, for service to all the members of the company. The petitioner has simply alleged that he has not received any notice of the meeting after a period of 9 years when even the annual return or ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 100 each and at that time 20 shares of ₹ 100 each was the issued and subscribed share capital. These shares were subscribed by the first directors of the company, namely, late Hardev Singh and the petitioner and both of them were the shareholders to the extent of 50 per cent. in the total paid-up share capital. 3. The challenge by the petitioner is two folds. First that on April 3, 2002 Hardev Singh, the then director of the company in connivance with his son, respondent No. 3, filed Form 32 with the Registrar of Companies, showing that the petitioner resigned as director on March 18, 2002. It is denied that the petitioner ever tendered his resignation as director on March 18, 2002. When the petitioner came to know about the same, he filed a complaint dated February 18, 2010 with the Registrar of Companies, copy of which is at annexure P4. The Registrar of Companies, called the comments from the company and the reply, annexure P5, was sent. 4. A perusal of the reply would however, show that the company asserted that the petitioner had sent his resignation voluntarily and the Form was duly filed with the Registrar of Companies, vide Receipt No. 156 dated April 3, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. to gain control over the affairs of the company. While making allotment of the additional shares, no offer was made to the petitioner, which is against the settled principles of law that the offer should be made proportionately to the existing shareholders. Further that the directors owe a fiduciary relationship to the shareholders and they have to make full and honest disclosure to the shareholders regarding all the important matters. 9. It was further stated that in connivance with each other and to play fraud on the members of the company, the respondents altered the articles of association of the company in the extraordinary general meeting held on March 31, 2009. Copy of the minutes of the extraordinary general meeting, copy of resolutions passed in the extraordinary general meeting and copy of amended articles of association are at annexure P10, annexure P11 and annexure P12, respectively. Firstly, the original clause 11(3) of the articles of association was omitted, which provide notice of the general meeting at least three days to the members of the company and secondly, clause 29A has been inserted, providing a condition that the meeting of the members shall be held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. Form 20B filed with the Registrar of Companies in respect of the annual statement for the year 2008-09 is at page 145 of the paper book. The return for the year 2008-09 in which the date of annual general meeting is September 30, 2009 was digitally signed on September 30, 2009. It is not the version of the petitioner that this return was filed by any amount of delay in order to contend that the petitioner acquired knowledge of the additional allotment subsequently on the basis of the returns filed later on. The annual returns for the next year, i. e., 2009-10 starts from page 158 of the paper book and for which the annual general meeting was held on September 30, 2010. 16. It would be thus, quite strange for the petitioner to allege that he has not been receiving any notice of the meeting of the annual general meeting and in case he challenges his removal as a director and remained silent for a period of 9 years. The filing of the statutory documents with the Registrar of Companies comes within the public domain and would be considered a public notice to all and sundry for the purposes of counting the period of limitation for filing the petition. 17. Learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of members. The act of oppression being continuous till it is remedied or brought to an end, the petition cannot be dismissed at the threshold on ground of delay or laches. 19. We have given our thoughtful consideration to the above contention of learned counsel and are of the firm view that these judgments of Company Law Board passed under the provisions of the Companies Act, 1956, are of no help to the petitioner. 20. Section 433 of the Act says that provisions of the Limitation Act, 1963, shall as far as may be, apply to the proceedings or appeals, before the Tribunal or the Appellate Tribunal, as the case may be. 21. The hon'ble Principal Bench of the National Company Law Tribunal, New Delhi, in the case of C. P. No. 108/ND/2016 Esquire Electronics v. Netherlands India Communications Enterprises Ltd. decided on October 6, 2016 held that for the petitions based on such allegations, article 113 of the Schedule to the Limitation Act would apply and the period would be three years from the date when right to sue accrues. It was further held that section 5 of the Limitation Act with regard to condonation of delay would not apply to the proceedings before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposed to be held on June 30, 2009 annexure P10, for service to all the members of the company. The petitioner has simply alleged that he has not received any notice of the meeting after a period of 9 years when even the annual return or necessary Form was filed by the company in the same year with the portal of the Ministry of Corporate Affairs. 25. In Part III of the petition, it is stated that the instant petition is not barred by limitation or laches as the effect of oppression and mismanagement and other fraudulent acts are of continuous nature and this is occurring on the day-to-day basis. The petitioner did not specify in this paragraph as to when he acquired the knowledge of the allotment of additional shares or increase in the capital. In the absence thereof, it can be safely deduced that the petitioner was well aware of the increase in the share capital decided by respondent No. 1-company soon after it was resolved in the year 2009 itself. 26. The instant petition is found to be hopelessly time barred and therefore, deserved to be dismissed. 27. In view of the aforesaid finding, we also reject the prayer made by the petitioner in the application filed under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
