9911796707
TMI Blog2022 (1) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petitioner before this Bench as a regular Petition are hereby rejected - Application dismissed. - Comp. Appl./3/GB/2021 IN CP No.05/GB/2021 - - - Dated:- 11-1-2022 - Hon ble Shri H. V. Subba Rao, Member (J) And Hon ble Shri Prasanta Kumar Mohanty, Member (T) For the Applicant : Mr. S. Chamaria, Advocate For the Respondents : Mr. A. Srivastava, Sr. Advocate ORDER [ Per : Mr. Prasanta Kumar Mohanty, Hon ble Member (T) ] 1. The present Company Application is filed by the Applicant, Mrs. (Dr.) Nilufar Rahman under Section 5 of the Limitation Act, 1963 praying for the following relief/s: a) This Hon ble Tribunal on being heard of the matter, may kindly be pleased to condone the delay of 3,696 days and accept the main Petition filed under Section 59 of the Companies Act, 2013 as regular petition for securing justice to the present Petitioner and or pass such other order as this Hon ble Tribunal may deem fit and proper. b) Other direction / directions, as it may deem necessary by the Tribunal. 2. Brief facts of the case as submitted by the Petitioner are as follows: 2.1 The Petitioner by profession is an Eye Surgeon (Ophthalmologist) working at Avh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m each of the above persons. The Respondent No. 2 in her reply dated 16.12.2014 admitted the transfer of 2,18,100 nos. of shares of the Petitioner in her name and 8,400 nos. of shares in the name of the Respondent No. 3 stating that the transfer was made by Late Adilur Rahman (her husband) during his lifetime by making payment of due consideration to the Petitioner. 2.5 Neither the Petitioner did receive any consideration against her such so-called transfer of shares and nor the same were ever transferred by her in favour of any one. So, the Petitioner by another letter dated 25.07.2015 again requested the Respondent No. 2 for amicable settlement of entire matter for keeping ahead the family s interest by saying that if the shares of the Petitioner were not re-transferred, the matter would be taken before the court of law for necessary action for the wrongs committed by them. But the Respondent No. 2 vide her letter dated 06.08.2015 declined to accept any contention of the Petitioner. 2.6 Thereafter, on subsequent stage, the Petitioner and the other family members entered into various litigations with the present Respondents in regard to the forgery of signature and also for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogether to have a final conclusion of the entire matter and after two / three sittings, the Respondent No. 2 again raised some old allegations and demanded certain things, which were not possible to accept from the end of the present Petitioner or others. Eventually the process of settlement was turned down with no positive result just in the month of December, 2020. 3. It is further submitted by the Petitioner that: 3.1 In the month of January, 2021 the Petitioner sat with the newly engaged Counsel who is presently representing the instant case and discussed with him the whole issue afresh and during the discussion some unexpected anomalies of the Respondents had been noticed. 3.2 In regard to the illegal transfer of shares and forgery etc. committed by the Respondent No. 2, the earlier Counsel advised the Petitioner to agitate the issue only in a way of criminal side and hence solely relying on his legal advice, the Complaint Case No. 2040/2015 was filed by the Petitioner before the Court of Special Judicial Magistrate, Kamrup (M) at Guwahati and thereafter, the said case was stayed by the Hon ble Gauhati High Court in Crl. Ptn. No. 303/2015. In this course and thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Hon ble Tribunal and further kindly be pleased to adopt a pragmatic view to condone the delay of 3,696 days and allow the main application for necessary adjudication. 5. It is further stated by the Petitioner that the basic cause of action for the present case arose on 07.01.2012 when the Respondents No. 2 and 3 attributed for forgery and without knowledge and consent, transferred the entire shares of the Petitioner their names. Therefore, basically the limitation starts therefrom but the knowledge of the said fact came to the knowledge of the Petitioner in the month of December, 2014. Thereafter, on subsequent stage, for the reason of lack of legal advice and family settlement process at different stages also caused delay to pursue the matter before this Hon ble Tribunal in time. 6. On the other hand, the Respondents have submitted that: 6.1 The Petitioner herself admits that earlier she held 2,26,500 nos. of shares which is 0.78% of the paid up share capital of the R1 Company and she had never taken part in the management of the affairs of the business of the R1 Company despite being a purported Director and that only Adilur Rahman managed the operations of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demise of her mother in law, the R2 asked the Petitioner to transit the shares of both Late Adilur Rahman and Late Rumena Rahman pursuant to the agreement dated 08.03.2007 which the Petitioner and her brother Atikur Rahman refused and sent a draft settlement deed which was outright rejected by the Respondents. 6.7 The Petitioner s claim of inadequate advice of her previous lawyer is not a sufficient cause pursuant to Section 5 of the Law of Limitation in the facts and circumstance of the case as supported by the judgment of the Hon ble M. P. High Court reported in the matter of Mariambai and Anr. Vs Hanifbhai And Anr. passed on 26 March, 1963 reported in AIR 1967 MP 107. 6.8 The Respondents further submit that no Judgment and Order of the Hon ble Supreme Court supports an inordinate delay of 3,696 days in filing a Petition under Section 59 of the Companies Act and such Petition is liable to be dismissed in limine with exemplary cost. 7. In response to the aforesaid submissions of the Respondents, the Petitioner further has submitted that: 7.1 The said pleading of the Respondents, specifically the response made on behalf of the Respondent No. 1 Rahman Properties Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d there was no legal information available in the hands of the Petitioner to pursue the matter before NCLT for redressal, hence the delay which was happened in this course is inevitable. 8.3 Since the Petitioner has undergone serious surgery, her frequent visit to Guwahati is restricted therefore in the name of litigation, she may even face the life threat for such frequent visit for litigation purposes at Guwahati and accordingly requested the Respondents to settle the family dispute amicably which resultantly consumed five years time on different excuse of settlement of the entire issue. Here also till this time, the Petitioner was not aware about approaching before this Hon'ble forum for such issue. 8.4 Recently the mother of the petitioner expired on 21.09.2020 at Guwahati and during that funeral time, the process of family settlement was actively initiated and for this purposes, settlement Deed was also prepared. Be it stated here that for this purposes, the necessary draft copies of settlement and other documents were also exchanged between the parties but it again tuned down with no positive result. 8.5 In regard to the illegal transfer of shares and forgery co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry but this issues are part of jurisdiction under Oppression and Mismanagement and hence can't be taken note of under a Section 59 proceeding. 9.6 In order to maintain her Petition, which is hopelessly barred by limitation, in her petition impugned at para 6, she claims that sufficient time was consumed to settle the entire matter whereas litigations continued parallel to the said purported efforts of settlement. This is completely false as the Respondent No. 2 3 had no dispute or reason to settle anything in the R1 Company with the Petitioner and the same was categorically stated by the R2 in her letter dated 16/12/2014 which is Annexure No. 2 in the said IA impugned. The Petitioner in her entire pleadings only claims about some efforts for some family settlements but fails to furnish any proof of any such family settlement going on. 9.7 At para twelve, she claims inadequate advice of her previous lawyer however, such ground is not a sufficient cause pursuant to Section 5 of the Law of Limitation in the facts and circumstances of the case. In Mariambai and Anr. vs Hanifabai and Anr. on 26 March, 1963; Equivalent citations: AIR 1967 MP 107 the Hon'ble Court ruled th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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