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TMI Blog2019 (12) TMI 1357X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Register of members and register of share transferred and thereafter return the share certificates to the Petitioners with duly authenticated Memorandum of share transfer etc. 2. The Petitioners have filed along with the C.P. No. 295/KB/2017, an Interim Application under Rule 32 of the National Company Law Tribunal Rules, 2016 read with Section 5 of the Limitation Act, 1963 praying that the delay, if any, in filing the present Company Petition No. 295/KB/2017 might be condoned. The matter was listed for hearing on 25/11/2019 when the Ld. Counsel for the parties decided to argue first on the Interim Application relating to condonation of delay for its disposal, before the arguments are advanced on the main Company Petition. 3. During the course of argument, the Ld. Counsel for the Petitioners has submitted that even though the Counsel for the Petitioners is quite sure that the Company Petition is very much within the time but, with a view to have abundant caution the present Interim Application No. I.A. 1009/KB/2019 has been filed by the Petitioners so that in case the Respondents have any objection as regards the limitation, the same could be satisfied. 4. The Ld. Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for transfer in his name on 16th July, 2012 followed by reminder letter dated 7th February, 2015. Petitioner No. 2 also deposited its 1700 shares for transfer of 9th January, 2015 and wrote a reminder on 7th February, 2015 to record the transfer of shares. Similarly, Petitioner No. 3 deposited its 1800 shares for transfer on 9th January, 2015 and a reminder letter dated 7th February, 2015 was also sent to record transfer of shares. 8. It is further submitted that on 11th February, 2015 Respondent No. 1 wrote to Petitioners No. 2 & 3 stating that the Board of Directors had considered the request for transfer along with objection received from One Director-cum-shareholder objecting to the transfer by raising pre-existing contract or arrangement for transfer between the members of Goenka Family which includes Baglas and Poddars. It was stated that the Board has thus refused to accede the request for transfer on the ground that the shares formed part of the contract or the arrangement between members of the Goenka Family which required that shares held or controlled by members of the family be offered first to the other members of the family, the Petitioner Nos. 2 & 3. 9. Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the Petitioners' name should be recorded as shareholders or not is required to be decided by the appropriate authority. It is submitted that the present petition was filed on 24th April, 2017 under Sections 58 & 59 of the Companies Act, 2013. 12. During the course of arguments, the Counsel for the Petitioners has submitted that the Petitioners preferred a Joint Petition C.P. No. 61 of 2015 which was dismissed on the ground of maintainability due to cause of action vide order dated 6th October, 2016 against which an appeal was preferred before the Hon'ble NCLAT which was dismissed as withdrawn vide order dated 19th April, 2017 with a liberty to file appropriate application before the appropriate forum for recording their names as shareholders of Respondent No. 1 Company. 13. It is submitted that since the petition was dismissed by the Hon'ble NCLAT for misjoinder of parties and not on merit and in the appeal, liberty was granted by the Hon'ble NCLAT to file appropriate application before the appropriate forum, the present petition is very much within the time and there is no question of any delay. 14. It is submitted by the Ld. Counsel for the Petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a settled principle of law that principles of that the question of limitation should not be used to defeat the substantive right of transferee which accrues to it by operation of law as it "may cause manifest injustice and miscarriage of justice since by operation of law the Petitioner is entitled to have his name recorded in the share register and the refusal to register in the name of the Petitioner is patently illegal". In the said case delay of 249 days was condoned. In another case Amrex Marketing Private Limited vs. Akal Spring Limited & Ors. (NOT Chandigarh Order dated 23.09.19), "upheld by the Hon'ble NCLAT Order dated 25.11.2019, an application under Rule 32 and Rule 153 of the National Company Law Tribunal Rules, 2016 read with the provisions of the Limitation Act, 1963 in connection with an appeal under Sections 58 and 59 seeking condonation of delay of 186 days was allowed subject to deposit of Rs. 25,000/- in the "Prime Minister's National Relief Fund" with the observation that, "It is the settled principle of law that while applying the provisions of the 1963 Act, more so for condonation of delay in filing appeal, justice would be done when the matter is fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary, 2015 that too by post which showed that Petitioner No. 1 was slow in pursuing its case for 3 years which is an unexplained delay. Similarly, Petitioner Nos. 2 & 3 purchased shares in 2014 but deposited the same for being recorded in their name after a period of around two months. So, there is a delay on the part of these Petitioners. 23. The Id. Counsel for the Respondent has submitted "that the date of purchase by petitioner No. 1 is alleged to be June, 2012. Even going by the averments in the petition, the first attempt to deposit the shares for transfer is 16th July, 2012. The reminder and/or further request is dated 7th February, 2015. There is no explanation for the gap between 16th July, 2012 to 7th February, 2015 contained in I.A. No. 1009 of 2019. Again there is no explanation for the delay between the date of dismissal of the earlier company petition being C.P. No. 61 of 2015 on 6th October, 2016 and the filing of the appeal in and around April, 2017. The appeal was dismissed by an order dated 19th April, 2017 on the ground of limitation. Again from the date of dismissal of the appeal on 19th April, 2017 till the filing of I.A. No. 1009 of 2019 in and around July, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same before an appropriate Authority. The Hon'ble NCLAT without going in to the merits of the matter allowed the Petitioners to withdraw the appeal as the appeal was barred by limitation. Thus there is no specific liberty was given by the Hon'ble NCLAT to the petitioners to file the present proceedings. It is submitted that Section 14 of the Limitation Act, 1963 would entail exclusion of the period between February, 2015 to 19th April, 2017. Respondent No. 1 had prayed that the application might be dismissed. 27. We have heard the Ld. Counsel for the parties. While dealing with the present application, we have also considered the various judgments of the Hon'ble NCLAT and Hon'ble Supreme Court. We are convinced with the submissions of the Petitioners. The relevant extract from the judgment of Hon'ble NCLAT, New Delhi in the case of Akal Spring Limited & Ors. vs. Amrex Marketing Private Limited in Company Appeal (AT) No. 326 of 2019 are as under:- "While dealing with an 'Application for condonation of Delay', the concerned Tribunal/Appropriate Authority is only required to consider whether the 'Plea of Sufficiency of Cause' is a reasonable o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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