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TMI Blog2020 (8) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petition and the crucial date of cause of action is when the alleged shareholding of the Applicant has been brought down below 1/10th of the total shareholding of the Company. In this case the Appellants have alleged that on 11.12.2002 without any notice or board meeting. The Respondent No. 2 allotted shares to Respondent No. 3 and 4 and thereby shareholding of Late Mr. Bipin Chandra brought down from 50% to 1% and subsequently, by increasing paid up capital from time to time the shareholding of Mr. Bipin Chandra brought down 50% to 1% of the total paid up capital and 1/50th of the total membership. In the impugned order Learned Tribunal has considered the question of maintainability on the date of filing of the Petition which is not correct and question of maintainability in the case is a mixed question of fact and law. Therefore, it should have been decided at the time of final hearing of the Petition. It is interesting fact the Respondents have restricted its arguments on the question of limitation only. It means that the Respondents are not convinced or not in a position to justify the findings of the Tribunal in regard to maintainability of the Petition in view of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Sushil Kumar Bhageria,Mr. Ramavtar Hamirwasia,Mr. Vikas Agarwal,Mr. Ramesh Hamirwasia,Mr. Suresh Kumar Gupta,Ms. Pooja Bhageria,Mrs. Rajni Bhageria,Mr. Yash Bhageria,Mrs. Santosh Devi Bhageria,Mrs. Shakuntalla Devi Gupta,Mrs. Shashi Bhageria,Mr. Ankur Bhageria (Justice Jarat Kumar Jain) Member (Judicial) , (Mr. Balvinder Singh) Member (Technical) And (Dr. Ashok Kumar Mishra) Member (Technical) For the Appellant : Mr. Anirwan with Mr. Varun Singh, Mr.Gaurav Nair, Ms Pranati Bhatnagar, Advocates For the Respondent : Mr Rakesh Kumar with Mr. Aashish Khattar, Mr.Ankit Sharma, Advocates JUDGMENT JARAT KUMAR JAIN, J. The Appellants being legal heirs of founder shareholder Late Mr. Bipin Chandra Shah filed this Appeal against the order dated 26.03.2018 passed by National Company Law Tribunal, Mumbai Bench (In short Tribunal). Whereby, allowed the Application (CA No. 314/2013) filed Respondents and dismissed the Company Petition CP NO. 108/2013 as not maintainable. 2. Brief facts of this Appeal are that M/s Trimbak Estates Pvt. Ltd. (In brief Target Company) was incorporated on 30.08.1995 having authorized share capital of ₹ 1 Lakhs divided into 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motive to bring down the shareholding of Late Mr. Bipin Chandra Shah from its original to 1/50th of total numbers. 4. The Appellants alleged that aforesaid mismanagement and oppression is ex-facie illegal on the face of it and is in contravention of the Articles of Association. On these allegations the Appellants being legal heir of founder shareholder Late Mr. Bipin Chandra Shah filed Company Petition under Sections 397, 398, 402, 406 and 407 of Companies Act, 1956 and Section 59 of the Companies Act, 2013 before the Company Law Board in Mumbai Bench, against the Respondents in September, 2013. On 04.10.2016 Company Petition transferred to Tribunal Mumbai Bench. 5. During the pendency of the Petition the Respondents herein filed an Application (CA No. 314 of 2013) for dismissal of Company Petition in limine, on the ground that the Appellants do not qualify/fulfilled the criteria under Section 399 of the Companies Act, 1956. It is also stated that the Appellants have also filed suit in City Civil Court Mumbai, being short causes suit No. 942 of 2007 on 23.02.2007 against the Respondent Nos. 1 to 4 herein as a remedy against the oppressive conduct and sought various reliefs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etal Ispat Pvt. Ltd. Vs. Surjit Singh (Company Appeal (AT) No. 31 of 2016) decided on 20.02.2017. 9. Learned Counsel for the Appellants contended that six instances of oppression and mismanagement by the Respondents as stated in the Petition are as under: - (i) On 11.12.2002 the Respondent No. 2 without any notice or board meeting allotted 9,800/- shares to Respondent No. 3 and 4. (ii) On 10.02.2004 the Respondent No.2 had appointed his wife Respondent NO. 8 as Director of the Company. (iii) On 30.09.2004 the name of Mr. Bipin Chandra Shah was removed from the list of shareholders. (iv) On 19.05.2006 the Respondent No. 2 deliberately, gave false statement that no share stood in the name of Mr. Bipin Chandra Shah. (v) The Authorized Share Capital increased from 1 lakh to 9.58 lakhs and number of Shareholders increased to six. (vi) On 15.03.3012, 10,800 shares allotted to Respondent No. 8 to 50. 10. Learned Counsel for the Appellants further submitted that without any notice or board meeting illegally the shares were allotted and authorized share capital was increased. In this Case, the question of maintainability is mixed question of fact an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afresh suit, therefore, the order 2 Rule 2 CPC has no application in this Case. 15. Learned Counsel for the Respondents submitted that Mr. Bipin Chandra died on 15.02.2004 after about two years the Appellants have for the first time, on 11.03.2006 applied for transferring the shares in their name. On 29.05.2006 Respondent No. 2 had categorically denied with respect to the Appellant s father having shareholding in the Company. Thus the cause of action had accrued at that time, in favour of Appellants. The Limitation started in the year 2006, whereas, the Company Petition was filed in September, 2013. As per Section 433 of the Companies Act, 2013. The Company Petition can be filed within three years from accrual of the cause of action. Thus, the Tribunal has rightly, dismissed the Company Petition on the ground of maintainability. 16. Learned Counsel for the Respondents contended that issue of limitation can be considered as a preliminary issue in the Petition under Section 397 and 398 of the Companies Act, 1956 if it is not a mixed question of law and fact as held by Hon ble Madras High Court in the case, of Saroj Goenka and Ors. Vs. Nariman Point Building Services and Trading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case it was open to the Tribunal to dismiss the petition as not maintainable in view of Section 399 of the Companies Act, 1956. 21. This Appellate Tribunal has again an occasion to deal with this issue in the case of M/s Ranchi Metal Ispat Pvt. Ltd. (Supra) after referring the decision of Hon ble Supreme Court this Appellate Tribunal held as under:- In Anup Kumar Aggarwal Vs. Crystal Thermotech ltd. Ors. [company Appeal (AT) NO. 17 of 2016], this Court considered the crucial date when an applicant is required to satisfy the requirements under Section 399 of the Companies Act, 2013 so as to make the requirement of having an aggregate of 1/10th of share out of the total shareholding of the Company, if the Appellant alleges oppression in bringing down his shareholding. In the said case, this Court noticed the Hon ble Supreme Court s decision in Bhagwati Developers Pvt. Ltd. and Rajahmundry Electric Supply Corporation Ltd. wherein the Apex Court held that the requirement of 1/10th of holding of the total share is to be examined in the light of whether such a number is maintained on the actual date of presentation of the Company petition in the court (emphasis added) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esting fact the Respondents have restricted its arguments on the question of limitation only. It means that the Respondents are not convinced or not in a position to justify the findings of the Tribunal in regard to maintainability of the Petition in view of Section 399 of the Companies Act, 1956. 24. So far as the question of limitation is concerned the Tribunal has not given any findings that the Petition is time barred. But dismissed the Petition on the ground of delay and laches. As the Tribunal has not embarked the issue of limitation, therefore, we restrained ourselves to express any opinion in regard to the arguments advanced by Learned Counsel for the Respondents on the question of limitation. However, we are of the view that as per the allegations in the Petition, it is apparent that in this Petition issue of limitation is a mixed question of fact and law. Therefore, it should have been decided at the time of final hearing i.e. when the Petition is decided on merit. In this purpose it is useful to refer the Judgment of this Appellate Tribunal in the case of Mr. Ganesh Jaiswal Ors. (Supra) in which held as under: - It is well settled that a plea of limitation is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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