9911796707
TMI Blog2021 (5) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... er (T) ORDER Prasanta Kumar Mohanty, Member (T) 1. IA No. 28 of 2020 is filed by the Applicant Shri Pravir Kumar Roy [Respondent No. 2 in T.P. No. 26/397/398/GB/2016 arising out of the original C.P. No. 80 of 2000] under Rule 11 of the NCLT Rules, 2016 seeking the following relief/s: (a) passing necessary order and/or orders for hearing the application dated 09.03.2016 filed by the present application for recall of impugned order dated 08.02.2016 of the Hon'ble CLB in CA No. 112/2014 and upon hearing be pleased to recall the order as prayed for in the ends of justice, (b) In the interim pending disposal of this instant interlocutory application as well as the Company Application (CA) No. 112/2014, this Hon'ble Tribunal be also pleased to keep in abeyance the main proceeding of TP No. 26/2016 [CP 80/2000] and (c) Further, this Hon'ble Tribunal may be pleased to pass other appropriate necessary orders/directions as may deem fit and proper for the ends of justice. 2. The facts of the case are that one Sri Kamakhya Kumar Roy (since deceased, Original Petitioner] had filed proceedings before the Company Law Board (CLB) New Delhi, under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Copy of the Order dated 01.06.2018 is annexed with the Application marked as ANNEXURE-A6. 5. It is further submitted that the Applicant being aggrieved with the impugned order dated 01.06.2018 had preferred an appeal under Section 421 of the Companies Act, 2013 before the Hon'ble NCLAT, New Delhi registered as Company Appeal(A.T.) No. 236/2018 and the Hon'ble NCLAT vide its order dated 29.08.2018 modified the impugned order directing that the NCLT, Guwahati may request the Registry of NCLT, Delhi to search and send the original records of Annexure (A-3), (A-4) and (A-5) and further directed this Bench to hear the Applicant and other respondents on the basis of copies of the said Annexures (A-3), (A-4) and (A-5). A true certified copy of the order dated 29.08.2018 passed by Hon'ble NCLAT, Delhi in Company Appeal; (A.T.) No. 236/2018 is annexed with the application marked as ANNEXURE-A1. 6. That the Applicant states that the Company vide its letter dated 06.09.2018 submitted a copy of the order dated 29.08.2018 passed by the Hon'ble NCALT, Delhi before this Bench and this Bench vide its order dated 22.10.2018 passed in IA No. 59/2018 held that the Registry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter came up for hearing on 23.03.2021, as prayed four days' time was granted to the Applicant for filing his written submission before the Registry serving copy of the same to the Respondents. However, the Applicant vide email dated 03.04.2021 submitted his written submission. In his written submission, in reiterating the facts narrated in the Application has submitted that- (a) Shri Abhay Kumar Singh is not qualified to maintain proceedings in NCLT under Section 397 and 398 because he is not a shareholder. (b) It is only the members of a company alone who can file a petition under these sections with further stipulation that such a right can be exercised by virtue of section 399. Section 399 prescribes certain qualifications to exercise such a right. Thus a member of a company, who is not a shareholder of its subsidiary company, cannot file a petition against the subsidiary by virtue of being a member of the holding company. Similarly, shareholder of a holding company cannot complain of oppression by a subsidiary company in which he is not a member. Shankar Sundaram v. Amalgamations Ltd. (2001) 2 Comp.L.J. 176 (CLB). (c) Simple reading of the sections 397 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so to apply in virtue of section 399. (2) If, on any application under sub-section (1), the [Company Law Board] is of opinion that the affairs of the company are being conducted as aforesaid or that by reason of any material change as aforesaid in the management or control of the company, it is likely that the affairs of the company will be conducted as aforesaid, the [Company Law Board] may, with a view to bringing to an end or preventing the matters complained of or apprehended, make such order as it thinks fit. Section 399 in The Companies Act, 1956 399. Right to apply under section 397 and 398. (1) The following members of a company shall have the right to apply under section 397 or 398: (a) in the case of a company having a share capital, not less than one hundred members of the company or, not less than one-tenth of the total number of its members, whichever is less, or any member or members holding not less than one-tenth of the issued share capital of the company, provided that the applicant or applicants have paid all calls and other sums due on their shares; (b) in the case of a company not having a share capital, not less than one-fifth of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies Act, 1956. The instance is Rule 88 of the Companies (Court) Rules, 1959 which governed petitions under section 397 simply stated 'petition presented under section 397 on behalf of any member entitled to apply under section 399(1) by any one or more of them', which means that only a shareholder/member of Company is eligible or qualified for making an application under section 397/398 either on his own or behalf of other shareholders and that the provisions of section 399 would have to be complied with. Extract of the Rule is given below: Companies (Court) Rules 1959 88. Petition under section 397 or 398 (1) Where a petition is presented under section 397 or 398 on behalf of any members of a company entitled to apply under section 399(1), by any one or more of them, the letter of consent signed by the rest of the members so entitled authorizing the petitioner or petitioners to present the petition on their behalf, shall be annexed to the petition, and the names and addresses of all the members on whose behalf the petition is presented shall be set out in a Schedule to the petition, and where the company has a share capital, the petition shall state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IA No. 28 of 2020 has prayed for- (a) passing necessary order and/or orders for hearing the application dated 09.03.2016 filed by the present application for recall of impugned order dated 08.02.2016 of the Hon'ble CLB in CA No. 112/2014 and upon hearing be pleased to recall the order as prayed for in the ends of justice, (b) In the interim pending disposal of this instant interlocutory application as well as the Company Application (CA) No. 112/2014, this Hon'ble Tribunal be also pleased to keep in abeyance the main proceeding of TP No. 26/2016 [CP 80/2000] and 13. It is observed that the prayers made by the Petitioner here have been heard at length by the Hon'ble Company Law Board, New Delhi Bench in CA/112/2014 in CP No. 80/2000 and the Hon'ble Company Law Board passed the order on 08.02.2016 admitting the Application CA/112/2014 for substitution of the name of the Applicant - Shri Abhya Kumar Singh in place of his deceased father Late Tarun Kumar Roy as Respondent No. 3 in the original CP No. 80/2020. Hence, it is essential to reproduce the Order of the Hon'ble Company Law Board, New Delhi dated 08.02.2016 before passing an appropriate order in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es have till date not applied to the company to transmit these shares either in the name of the applicant or in the name of all the representatives of R3. Unless the applicant is made as a member of the company, the counsel says, the legal representatives of R3 being third parties to this company, they shall not be taken as Legal Representatives in the place of R3. Apart from the objections above, he also submits that this applicant was illegally plucking and selling tea leaves from the tea gardens of the R1 Company and pocketed the sale proceeds valuing more than 13 Cores, therefore for any reason, the applicant shall not be permitted to substitute R3 as legal representative of R3. 4. The counsel for R1 R4 also submits that since this applicant has filed Power of Attorney as executed by other Legal Representatives on 22.2.2014 itself, i.e. within 15 days of the demise of deceased R3, it could not be construed that the LRs could not come out of the shock and trauma of death of deceased R3 within 30 days from the date of demise of R3 therefore, the reason of the applicant remained in attending the rituals to his father cannot be taken into consideration as sufficient reason f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as sit over his rights for years together in filing this application. 10. I believe that the reasons given by the applicant for the delay of hardly 10-15 days in filing this application can't become a ground for dismissal of this application. Moreover, it is not a proceeding before Civil Court to take it as strictly as required under CPC, therefore, I do not find any merit in the objections raised by the respondents against the relief sought by the applicant. 11. As other objection raised about the applicant membership in the company, the respondents submit that this applicant has not filed any application for transmission of his father's shares in favour of him, whereas the applicant has filed a letter addressed to Board of Directors seeking transmission of these shares in the name of him basing on the authorization given by other legal heirs for transmission of these shares in the name of the applicant. It is a fact in dispute. 12. The respondents raised an objection that the company has grievances in relation to plucking tea leaves by the applicant, one it is not proved, even otherwise also, it will not have any bearing on bringing in LRs on record, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
