TaxTMI 
TaxTMI 
2015 (9) TMI 1253
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....d be enough to focus the controversy which is identical in all the cases. I, therefore, for the sake of convenience clubbed all the cases for the purpose of hearing and decision. However, I would like to reiterate that save and except the variance in the number of shares and company's name, the facts and point in law being one and the same, it would be sufficient to confine the consideration only to the pleadings in C.P. No. 19 of 2011. 3. It is pertinent to mention here that in the course of trial the Original Respondent Nos. 3 to 5/Applicants therein fited Company Applications being CA Nos. 154 to 161 of 2014, seeking cross examination of the Petitioner. These applications have also been clubbed and are being decided alongwith the Company Petitions. 4. The short facts of the case are as follows:- 4.1 The Petitioner is one of the Trustees of a private family trust, namely, N.S. Trust, which has been settled under an Indenture of Trust dated 10/4/1999 (hereinafter referred to as "the Indenture" in short). The Respondent No. 1 is a private limited company incorporated for the purposes of holding and/or facilitating investments of the Late Dr. Neelkanth Kalyani and Mrs. ....
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....tting noticed by the Petitioner and her husband, the Respondent No. 2 (since deceased) herein. However, with a view to maintain cordial family relations and for other diverse reasons, including deteriorating health of the Respondent No. 2, the Petitioner and the Respondent No. 2 did not take any legal action in the matter. 4.7 It is stated that, in January, 2010, the Petitioner and the Respondent No. 2 revoked the two Powers of Attorney, which the Respondent Nos. 3 and 4 had managed to obtain from them in the year 2008. It is alleged that as a result thereof, the Respondent No.4 started harassing the Petitioner and the Respondent No. 2 in various ways, which led to a complete family unrest. Ultimately, as a result of disputes in the family, the Petitioner took search of records of various statutory authorities, whereupon, inter alia, it was discovered that the impugned shares of the Company held by the Trust were purportedly first transferred in favour of the Respondent No. 2 and then further transferred in favour of the Respondent No. 3. It is submitted that the purported transfer of the impugned shares is not valid and as such the illegal changes in the relevant documents need....
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....espondents shall hereinafter be referred to as "the Contesting Respondents". 5.1 In reply filed on behalf of the Company, It is stated that the Company has acted in accordance with law pursuant to the documents executed by the Petitioner in relation to the transfer of impugned shares and hence the Petition deserves to be dismissed. 5.2 In the reply filed by the Contesting Respondents, they have stated that the Petitioner is no longer a trustee or a beneficiary of the N. S. Trust ('the said trust'). It is stated that by a letter dated 6/7/2007, addressed to the Board of Trustees of the N.S. Trust, the Petitioner had tendered her resignation as a trustee from the said date and requested the Board of Trustees to accept her resignation and relieve her of her duties as trustee. 5.3 It has been further stated that by a Declaration of Relinquishment executed on 7/7/2007, the Petitioner had stated that she has sufficient income of her own; she is of an advanced age and after discussions and deliberations with her husband i.e. Respondent No. 2 (since deceased) herein had decided to relinquish all benefits in the income and corpus of the said N.S. Trust. By the said Deed of ....
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....t the said meeting, the Respondent No. 2 also expressed his desire to distribute/transfer the Income/corpus of the Trust. The proceedings of the said meeting was recorded in the Minutes of meeting dated 12/7/2007. 5.7 It is further stated that by a letter dated 20/7/2007, addressed by Mr. S. N. Inamadar, a Trustee of the said Trust, to the Board of Trustee, the said Mr. Inamdar referred to the minutes of the meeting dated 12/7/2007 and stated that after perusing the contents of the said minutes, the other Trustees had his consent to distribute/transfer the income/corpus to the sole beneficiary of the Trust viz. Dr. Kalyani (Respondent No. 2 herein). 5.8 It is further stated that the shares of the Respondent No. 1 Company were transferred to Respondent No. 2 (since deceased) on 17/9/2007. This fact was also known to the Petitioner as far back as on 17/9/2007, which is evident from a perusal of the share certificate, which bears the signature of the Petitioner as a Director of the Respondent No. 1 Company. Similarly, on 22/11/2007, the Respondent No. 2 transferred his shares in the Respondent No. 1 Company to the Respondent No. 3 by a registered gift deed, which fact was also t....
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....n, after hearing, the Hon'ble High Court passed the following order on 25/2/2014:- "1. These appeals are directed against a common order and judgment dated 4th September, 2014 in various company applications filed by the appellants in the 1st respondent's company petition. 2. I have heard Mr. Mookherjee, Mr. Bhatt and Mr. Kamdar, learned senior advocates for the contesting parties at some length. In my view, it is not necessary to decide these appeals on merits. The order under appeal disposed of applications filed by the present appellants challenging the maintainability of the original petition. It would in my view, serve the purposes of justice, if the following order is passed. (a) The impugned order is quashed and set aside. However, it is clarified that this is without any examination at all of the correctness of otherwise of the order on merits but only in order to facilitate the other directions that follows. (b) The Company Law Board shall decide the Company Petition on merits. While doing so, it shall also consider and decide all questions as to the maintainability of the Company Petition without any way being influenced or bound by the order under app....
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....ting respondents. The Ld. Sr. Counsel appearing for the Respondents confined his arguments by saying that the Petitioner was having no knowledge of having signed these documents. According to him, the Petitioner might have signed these documents inadvertently in routine course and/or her signatures might have been obtained by mis-representation of without knowing the real nature of the transactions under challenge in this petition, and therefore, these documents are not binding on her. 11. In my view, the main thrust of the Respondents' counsel to cross- examine the Petitioner was revolving with respect to her signature on the documents-in-question. In the facts and circumstances narrated above, in my opinion, there is no sufficient reason or cause for calling the Petitioner or any other person as a witness for cross-examination. The Applications are, therefore, hereby rejected, being misconceived and unwarranted, having regard to the stand of the Petitioner taken in the course of arguments of her counsel. 12. The first preliminary objection raised on behalf of the Contesting Respondents is that, according to the own case of the Petitioner, the subject shares belonged to ....
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....erefore, she is not entitled to and has no locus to maintain the petition. 15. Apart from the above, Mr. Mookherjee pointed out that the Petitioner has signed on the reverse of the shares certificate in question, as a Director of the Company. According to him, such signatures have been subscribed on the dates of registration of such transfers i.e. 17/9/2007, when the subject shares were transferred in favour of the Respondent No. 2, Dr. Nilkant A. Kalyani, and also on the dates of subsequent registration of transfer of the said shares from the Respondent No. 2 to the Respondent No. 3. He then pointed out that the Petitioner being director of the company and its authorized signatory at the relevant time, by subscribing her signatures to the endorsements recording such transfers has been duly confirmed and acknowledged such transfers and as such the Petitioner is now estopped from challenging the same. The Respondents' Counsel, therefore, contended that the Petitioner has no locus to file the instant petition and the same deserves to be dismissed on this ground alone. 16. As regards application of doctrine of "estoppel" and "waiver", the Ld. Sr. Counsel for the Respondents ....
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....the Petitioner along with DGK on an instrument of transfer to ensure that the transfer of shares is effected in the name of the Respondent No. 2 in full compliance of Section 108. According to Mr. Bhatt, the admitted fact that this was not done makes it clear that the Petitioner was never a consenting party to the impugned transfer of shares. 18. Mr. Bhatt further contended that it has been the Petitioner's case, right from the inception of the Petition, that her signatures have been indiscriminately, wrongfully and illegally secured by the Respondent No. 4 on a large number of documents. According to him, the impugned share certificates, in fact, buttress the Petitioner's case. He submitted that the very fact that the Petitioner has signed on the reverse of two different share certificates in respect of the same set of shares, clearly, demonstrates that these signatures have been indiscriminately, wrongfully and illegally secured by the Respondent No. 4 for illegal purposes, including facilitating the illegal transfers and raising such allegations. He, therefore, argues that the Petitioner has not knowingly signed the impugned share certificates, and hence, it is wrong ....
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....er comprehension. The impugned transfers are, therefore, not of a consensual character and the Petitioner is entitled to challenge the same. 22. Mr. Bhatt, Ld. Sr. Counsel, further submitted that another factor which militates against the Petitioner's consent and/or willingness qua the impugned transfers is the fact that if the Petitioner had, in fact, consented and/or knowingly participated in the impugned transfers, the Respondent Nos. 3 to 5 could have secured her signature on transfer instruments and not resorted to mutilation of share certificate to remove her name there from. The Ld. Sr. Counsel submits that undisputedly, the Petitioner has not knowingly signed on any instrument of transfer to facilitate removal of her name as a member of Respondent No. 1 and joint shareholder qua the said shares. This, coupled with the fact that Respondent Nos. 3 to 5 have wrongfully secured the Petitioner's signatures on two share certificates in respect of the same set of shares, makes it apparent that the Petitioner has not consented or knowingly participated in the impugned transfers. They are against the Petitioner's volition. The aforesaid facts clearly, distinguish the ....
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....rectify the register and shares and nullify the illegal transfers. 27. I have considered the rival submissions and perused the record. At the outset, for the sake of easy reference, I would like to reproduce the questioned documents Annexure "Rl", "R2", and "R3" referred to and relied upon by the Contesting Respondents in support of their contentions. R-1 Sulochana N. Kalyani Parvati Nivas 221, D Kalyani Nagar Pune 411 006, India Phone: (022) 26651001 Fax . (020) 26651999 July 6, 2007 To, The Board of Trustees NS Trust 221, D, Kalyani Nagar Parvati Niwas Pune 411 006 Dear Sir, Sub: Resignation of Trusteeship I had consented to act as "First Trustee" of your trust on 10th April 1999. Due to old age and other responsibilities I am unable to continue to act as trustee of your trust. I am therefore resigning from my trusteeship from today. I request you to kindly accept my resignation and relieve me from my trusteeship of your trust. Thanking you, Yours sincerely, (Mrs. Sulochana Neelkanth Kalyani) R-2 Declaration of Relinquishment made and executed at Pune on the 7th day of July 2007. I, Mrs. Sulochana Neelkant....
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.... Kalyani Parvati Nivas 221, D Kalyani Nagar Pune 411 006, India Phone : (022) 26651001 Fax : (020) 26651999 To, (1) Dr. Neelkanth Annappa Kalyani 221, D, Kalyani Nagar, Parvati Nivas Pune 411 006 (2) Mr. Sbrikrishna N. Inamdar 2/A, Ameya Apartment 1193-B, K.B. Dhuru Road, Dadar, Mumbai 400028. In their capacity of a trustees of NS Trust created under indenture dated 10th April 1999. Dear Sirs, (1) Yourself & myself were trustees of the said NS Trust. I was also beneficiary of the said trust. (2) By my declaration on oath made on 7th July 2007 relinquished all my rights to the benefits of the said trust, whether to the income or to the corpus. I have voluntarily and on my own have relinquished my rights and benefits to which I was entitled. (3) By this letter I wish to inform you the fact of my relinquishment with a request to you to act as trustee of the said trust without considering me as beneficiary. You may act as if I was never beneficiary of the said trust. (4) A copy of my declaration on oath is sent to you along with this letter. Please acknowledge the receipt of the same. Thanking you, Yours sincerely, ....
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....nly look at and treat the Petitioner, the Respondent No. 2, DGK and SNI as its members and/or joint holders qua the impugned shares. She has categorically pleaded and made an attempt to demonstrate that she did not execute any transfer forms transferring the impugned shares as required under Section 108 of the Companies Act. In my opinion, these allegations are sufficient to hold that the Petitioner is a "person aggrieved" within the meaning of Section 111(4) of the Act, whose name, according to the Petitioner, has been removed without sufficient cause by the Company. 30. I have also gone through the decisions cited by the Respondents counsel. I agree with Mr. Bhatt that the facts of this case and the facts of the reported cases are distinguishable and have, therefore, no application for the reason attributed by him. In his submission referred above I, therefore, for the sake of brevity would not therefore, come to the conclusion that the Petitioner has locus standi to file the instant petition for redressal of her grievances by seeking rectification of Register of Members of the Company. These points are, therefore, answered accordingly. 31. Dealing with another preliminary ....
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....aring for the Petitioner submitted that none of the decisions or the provisions contained in Section 48 of the Trust referred to by the Contesting Respondents is applicable to the case in hand. In continuation of his arguments, the Ld Sr. Counsel for the Petitioner submitted that a petition under Section 111 of the Act lies at the instance of the shareholder and/or member of the Company. According to him, the petition, therefore, seeks vindication of rights of the Petitioner as a member/shareholder. It is not and cannot be an action in relation to the Trust. He, therefore, submitted that the objection raised by the contesting Respondents is without substance and liable to be reacted. 34. Having considered the rival submissions, in my opinion, the preliminary objection with respect to non-joinder of necessary parties taken by Answering Respondents is absolutely unsustainable in law. Further, the general rule in regard to impleadment and striking out of the parties is that the plaintiff in a suit, being dominus litis, may choose the person against whom he wishes to litigate. The Petitioner cannot be compelled to sue a person against whom he does not seek any relief. Consequently, ....
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....is not necessary for such Co-trustee/Petitioner to implead the other co-trustee(s) who are not willing to support his/her claim. The reason is obvious. There may be chances that the other co-trustee for some ulterior purpose might have colluded with the wrong doers i.e. the management of the Company. In that case, if the Petitioner/Co-trustee is deprived of filing of a petition for redressal of his/her grievances by way of rectification of Register Members, it would imply that such Petitioner/Co-trustee is remediless. It is a settled proposition that a party cannot be left without remedy under law. It is also fundamental law that no party can be compelled to invite evidence against himself/herself. It is also pertinent to mention here that the parties, who, according to the Respondents, are the necessary and proper parties have not approached this Board till date for their impleadment as a party in this petition despite having knowledge of the instant proceedings. Therefore, in my view, the Contesting Respondents are not entitled to contend that the petition suffers from non-joinder of necessary and proper parties. 37. In so far as the decisions referred to by the Respondents ar....
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....ent Court the documents referred to and relied upon by the Respondent herein have to be accepted. c. After the transfer of the shares, the Petitioner has not complained of non receipt of notices of AGM of the Company, which she would have got in case she was still a member and her name remained in the Register of Members, and this fact goes to show that she had accepted the transfers of the shares. d. The Petitioner has not produced any document to show that she acted as a Trustee after 6/7/2007, which she would have done if she had not actually resigned as a Trustee. 40. On the aforesaid premise, the Ld. Sr. Counsel appearing for the Contesting Respondents sought dismissal of the petition. 41. Replying to the aforesaid contentions, Mr. Bhatt, the Ld. Sr. Counsel for the Petitioner, submitted that the above allegation is also red-herring. He submits that the Petitioner's assertion of the letters and/or the Transfer Deed, being invalidated by exercise and practice of fraud, misrepresentation and undue influence, has no bearing on the substance of the Petition. According to him, the Petitioner has been confronted by the Respondent Nos. 3 to 5 with these documents, whi....
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....ay of filing a civil suit, I may like to reproduce the relevant part of the said decision :- "All the above indicates the limitation and the peripheral jurisdiction with which court has to act in spite of its exclusiveness it cannot take within its lap outside this scope of rectification. This is indicated even by Sec 155 itself: Section 155: Power of Court to rectify register of members (1) If- (a) the name of any person - (i) is without sufficient cause, entered in the register of members of a company, or (ii) after having been entered in the register, is, without sufficient cause, omitted there from; or (b) default is made, or unnecessary delay takes place, in entering on the register the fact of any person having become, or ceased to be a member; 31. the person aggrieved, or any member of the company, or the company, may apply to the Court for rectification of the register. 32. Sub-section (1) (a) of Section 155 refers to a case where the name of any person without sufficient cause entered or omitted in the register of members of a company. The word sufficient cause' is to be tested in relation to the Act and the Rules. Without sufficient cause en....
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....gh Court that jurisdiction of Court Under Section 155 is summary in nature cannot be faulted. Reverting to the second limb of submission by learned counsel for the appellant that court should not have directed for seeking permission to file suit only because a party for dispute sake states that the dispute raised is complicated question of facts including fraud to be adjudicated. The Court should have examined itself to see whether even prima facie what is said is complicated question or not. Even dispute of fraud, if by bare perusal of the document or what is apparent on the face of it on comparison of any disputed signature with that of the admitted signature the Court is able to conclude no fraud, then it should proceed to decide the matter and not reject it only because fraud is stated. 45. In view of the law laid down in the aforesaid case, it is, thus, clear that the original jurisdiction in respect of rectification of Register of Members lies with the CLB only. It is only the CLB, who after hearing, if finds that the questions involved in the case are complicated questions of facts and law, it may relegate the parties to the civil court. On a close scrutiny of the facts o....
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.... suppressed by the Petitioner, Mr. Mookherjee submitted that all these documents go to the root of the matter as the same relates to the locus of the Petitioner to institute this petition. 48. It was also argued by Mr. Mookherjee that the Petitioner has also suppressed the fact of having signed the endorsement of the reverse of the share certificate recording transfer of shares in favour of the Respondent No. 2 and, thereafter, in favour of the Respondent No. 3. He submits that this fact is also material and goes to the root of the matter to decide as to whether the Petitioner is competent to maintain the Petition or is estopped from doing so. 49. Referring to the decisions viz. (i) (S.P. Chengalvaraya Naidu Vs. Jagannath & Ors.) reported in (1994) 1 SCC Pg.1 and (ii) Sunil Poddar & Ors. Vs. Union of India & Ors. Reported in (2008) 2 SCC 326,, it was submitted by Mr. Mookherjee that the Petition requires to be dismissed for concealment of material facts and documents without going into the merits. He further referred to the following decisions in which similar proposition has been laid down viz. (a) Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody AIR 1964 SC 3215 ....
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....itioner's signature on the reverse of the impugned Share Certificates, it was argued that whilst the Petitioner disputes and denies her signature, however, without prejudice, the Petitioner's signature thereon, in fact, establishes her case that Respondent No. 4 had secured indiscriminate execution of the documents from her-of which she had no notice or comprehension of their contents. According to Mr. Bhatt, if the execution of the impugned documents was wrongfully secured, as in the present case, there can be no issue of knowledge or suppression. 54. The Ld. Sr. Counsel further submitted that the aforesaid decisions lay down the principle that the doctrine of suppression applies when a party approaching the court has to make full disclosure of facts and documents; such facts and documents are required to be relevant and material; and by virtue of such suppression, relief has been secured and/or was attempted to be secured by the party guilty of suppression. 55. Narrating the facts, Mr. Bhatt further tried to demonstrate that in the instant case none of these criteria stand fulfilled. According to him, there are reasons for the same. Firstly, these facts and document....
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....cate and suppression of the instrument of transfer (signed by Petitioner, Respondent No. 2, DGK and SNI), the minutes of the alleged board meetings, where the impugned transfers were allegedly approved and the Register of Members of Respondent No. l and, therefore, it is the Answering Respondents who are guilty of misconduct. 59. Dealing with the allegation of the Respondents as to the suppression of the institution of the Suit, Mr. Bhatt submitted that this allegation is also unmeritorious and is liable to be rejected. The Ld. Sr. Counsel submits that the institution of the suit does not in any manner prejudice the maintainability of the Petitioner and the Petitioner's entitlement to seek reliefs in terms thereof. Mr. Bhatt pointed out that the Petitioner has not filed the Suit and the Plaintiff therein is one Mr. Manohar Bassapa Hatarki the Settlor of the Trust and not the present Petitioner and hence this fact does not amount to suppression. Further, the cause of action in both the proceedings is different and distinct. The suit is filed by said Mr. Hattarki complaining of irregularities in the affairs of the Trust on the part of Respondent Nos. 3 to 5 herein and Shrikris....
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....rding to Mr. Mookherjee, the Petitioner, inspite of having knowledge of the documents, did not produce the same deliberately and concealed this fact from the court in order to gain undue advantage therefrom. It is the contention of the Ld. Sr. Counsel that the Petitioner deliberately withheld these documents and did not disclose these facts In the petition with mala fide intention. I have also taken into consideration the contention of Mr. Bhatt, who stated that the Petitioner never knew about the execution of these documents. It is pertinent to mention here that the evidence on both the sides have been led now and the affidavits filed by them are available on record. On a careful analysis of the facts, I am not inclined to believe the statement of the Petitioner that she was not aware of the signing/execution of the aforesaid documents. She has not denied signatures on it. It is not worthy to rely upon that she has signed these papers in a routine manner without knowing the actual transaction therein. Having given my serious thought on these pleadings it is diffcult for me to believe that the Petitioner's signatures were obtained on these documents by misrepresentation. It is ....
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....going to the root of this case and has also suppressed the vital documents which would have thrown light for the just decision of this case. For this reason, the Petitioner is not entitled to the reliefs prayed for. This point is answered accordingly. 63. Assailing the maintainability of the Petition, the Ld. Sr. Counsel, Mr. Mookherjee appearing on behalf of the Respondents has raised next objection that the petition is barred by the law of limitation. In this regard, it has been argued on behalf of the Contesting Respondents that the Company Law Board has taken over the original jurisdiction being exercised by the High Court under Sections 397, 398, 155 (now Section 111) of the Act. According to Mr. Mookherjee, when the Company Law Board is exercising the same jurisdiction that the High Court exercised earlier, the limitation Act and/or principles and/or provisions analogous to the provisions of the Limitation Act, would be applicable to the proceedings before it. Mr. Mookherjee submitted that the decision in the case of Canara Bank v. Nuclear Power Corpn. of India Ltd (1995)84 Comp Cas 70 (SC), clearly lays down that the CLB is a Court. It is, therefore, contended that the pr....
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....e Petition having been filed after expiry of period of three years, is barred by limitation. To support his contentions, Mr. Mookherjee referred to and relied upon the following decisions, in addition to the decision mentioned above :- a. Bihari Dalwani and Anr v Premkutri (P.) Ltd. and Others [2014] 123 CLA 21 (CLB), b. Shri Tommy Mathew Vs Duroflex Limited [2004] 122 Comp Cas 741 (CLB) c. Smt. Nupur Mitra Vs Basubani Pvt. Ltd. (1999) 2 Cal LJ 264, d. Stridewell Leathers (P) Ltd. & Ors. v. Bhankerpur Simbhaoli Beverages (P) Ltd. (1994) 1 SCC 34, e. Anil Gupta v. Delhi Cloth and General Mills Co. Ltd. [1983] 54 Comp Cas 301 (Delhi), f. P. Sarathy v. State Bank of India (2000) 5 SCC 355. 68. In addition to the above, Mr. Mookherjee, Ld. Sr. Counsel appearing for the Contesting Respondents, submitted that the Petitioner has sought to contend that decisions of the Company Law Board that Limitation Act applies to proceedings before it is on the basis of a misreading of the decisions 1992 (2) CLT 264 however, according to him, this argument is untenable, as even wrong interpretation by the CLB cannot be re-agitated. Further, the CLB has in several decisions referred....
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....LB is not a Court, but a Board formed under the Act. The Act itself distinguishes between the CLB and the Court. As such, there is no question of the CLB being construed as a Court for the purposes of proceedings under the Act. In this connection, he attracted attention of the Court to the provisions contained in Sections 2(10-A) and 2(11) of Act, which respectively define the "CLB" and the "Court" which are reproduced here as under: '(10-A) "Company Law Board" means the Board of Company Law Administration constituted under Section 10-E; (11) "the Court" means - (a) with respect to any matter relating to a company (other than any offence against this Act), the Court having jurisdiction under the Act with respect to that matter relating to that company, as provided in section 10; (b) with respect to any offence against this Act, the Court of a Magistrate of the First Class or, as the case may be, a Presidency Magistrate, having jurisdiction to try such offence;' 73. Referring to the said provisions, Mr. Bhatt contended that it is thus apparent that the Act itself differentiates and distinguishes between the "CLB" and the "Court". There is, therefore, no justif....
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....he matter of Prakash Timbers (P.) Ltd. v. Sushma Singla AIR 1996 All 266 and Andhra Pradesh High Court, in the matter of RDF Power Projects Ltd. v. M. Muralikrishna & Ors. 2005 (124) Com. Cases 184. According to him, even on a jurisprudential analysis, the CLB cannot be held to be a Court. Section 10E of the Act provides for the constitution of the CLB. This provision makes it apparent that the CLB is a statutory body created by exercise of the executive power of the Central Government. He, therefore, contended that the CLB can never be stated to be a part of the Courts established under the hierarchy prescribed under the Constitution of India. Further, the appointment of the members of the CLB is done by executive action and as such, does not satisfy the test of being a court. In this context, Mr. Bhatt, further asserted that the CLB is not a Court, and is supported by a Constitution Bench judgment of the Hon'ble Supreme Court in the matter of Union of India v. Madras Bar Association [2010] 11 SCC 1 According to Mr. Bhatt, this judgment, in fact, squarely applies to the situation at hand since it considers the position of the National Company Law Tribunal and holds the same no....
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.... Courts Act. Hence, this decision is not an authority applicable to the instance case, since, it does not hold CLB to be a Court either for the purpose of the Companies Act, 1956 and/or the Limitation Act, 1963. b. Distinguishing the case of Bhiari Dalwani and Anr v Premkutir (P.) Ltd. and Others [2014] 123 CLA 21 (CLB), it was argued that there is no consideration and/or finding regarding the Compay Law Board being a "Court". The aforesaid proposition of the Companies Act and the case law was not even placed before the CLB by the arguing counsel. With respect, the CLB's view is therefore, unconsidered; per incuriam; and not binding upon itself. According to him, the CLB has premised its decision on the decision reported in [2004] CLC 1094 i.e. Shri Tommy Mathew Vs Duroflex Lmited [2004] 122 Comp Cas 741 (CLB) ("Tommy Mathews Case") which in turn, applies Article 137 of the Limitation Act on the basis of the Calcutta High Court decision in the case of Smt. Nupur Mitra Vs Basubani Pvt. Ltd. (19990) 2 Cal LJ 264, but, according to Mr. Bhatt, both the decisions are inapplicable for the following reasons:- i. &....
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....ed in Delhi High Court which is obviously a "court", and Limitation Act would apply to proceedings before a High Court. At the relevant time, the CLB was not even established, and there was no occasion to consider the applicability of the Limitation Act, 1963 to proceedings In the CLB. e. Further distinguishing the case of R.D. Chinoy v. Central Bank of India First Appeal No. 132 of 1991 dated 1st September, 1992, it was submitted on behalf of the Petitioner that this is an Order passed by the National Consumer Disputes Redressal Commission, and does not consider whether the "Company Law Board" as defined under Section 2 (10A) of the Act was a "Court" as defined under Section 2(11)of the Companies Act, 1956 and the Limitation Act, 1963. This is not a judicial precedent and the finding at paragraph 12 in the said decision is an unreasoned observation. f. Further distinguishing the case of P. Sarathy v. State Bank of India (2000) 5 SCC 355, it was contended that in this Judgment, the issue before the court was whether the Deputy Commissioner of Labour (Appeals), Madras was a "Court" for the civil court to exclude time under Section 14 of the Limitation Act, 1963. Mr. Bhatt, the....
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....e petition, is within time. He submits that the record as it stands makes it apparent that the Petitioner was not aware of and was not a consenting party to the impugned transfers. According to him, if the Petitioner was cognizant and consenting to the same, there would have been an instrument of transfer in existence. The non-production of instrument of transfers, minute books, register of members, register of transfer for and in relation to the impugned transfer makes it apparent that not only are the same illegal but also that the Petitioner was not cognizant of and had not consented to the same. He, therefore, contends that on all counts, N.S. Nemura Consultancy India (P.) Ltd. case (supra) applies, and the Petition is liable to be held within time and an adverse inference is liable to be drawn against the Respondents. 81. I have considered the rival submissions carefully and gone through the decisions cited by the Ld. Counsels appearing from both the sides. Having given my anxious thought to the contentions of Mr. Bhatt that CLB is not a court for the reasons attributed by him in his arguments mentioned above, I am not inclined to accept his contentions. In the case of Cana....
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.... the reasons assigned by the Hon'ble Supreme Court in the said decision appear to me more convincing. Although, it is correct to say that the Hon'ble Supreme Court has stated that it has examined this issue for the purpose of Section 9A of the Special Court Act, however, from the entire reading of this case, it becomes clear that the decision of the Hon'ble Supreme Court in the case of Canara Bank (supra) clearly hold that the CLB is a court. 84. I have also considered the distinguishing facts of the case from the case referred to and relied upon by the Respondents, but I am not convinced with those reasons. For the sake of brevity, I am not reproducing the relevant facts referred to by Mr. Bhatt. However, relying upon the decision of Canara Bank (supra), I hold that CLB is a court and hence the provisions of Limitation Act in respect of the petition filed under Section 111(4) of the Act are applicable. 85. I look this point from another angle also. The Law of Limitation is founded on public policy. Its aim being to secure the quiet of community, to suppress fraud and perjury, to quicken diligence, and to prevent oppression. Its object is to give effect to the max....
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....mittedly executed in the year 2007. Therefore, the period of limitation of 3 years would start from the date, on which these documents were signed. Undisputedly, the petition came to be filed after expiry of 3 years. I, therefore, hold that the petition is barred by limitation and, therefore, deserves to be dismissed on this ground. 89. I have also taken into consideration the contention of the Ld. Counsel for the Respondents that in view of the registration of the Gift Deed, a notice may be taken from the date of the registration for the purpose of limitation. I have already held that the petitioner was in the knowledge of the execution of the documents. Therefore, the date of execution of the documents is taken as the date of knowledge in this case. 90. Assuming for the sake of arguments, that the provision of the Limitation Act, do not apply to the petition filed under Section 111(4) of the Act, it Is amply clear from the facts and circumstances of this case, that the petition suffers from acute delay and laches. Time and again, it has been held that if a petition suffers from unexplained delay and laches, the petition may be dismissed on this ground also. This point is an....