TaxTMI 
TaxTMI 
2017 (3) TMI 1583
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.... On perusal of the record it is found that the petitioner No. 7, Gangadhar Ghose sworn an affidavit for self only and petitioner No. 4 Alok Ranjan Routh Roy sworn affidavit on behalf of petitioners (as reflected) as constituted attorney of the petitioners. But no power of attorney is enclosed nor any registration number is reflected so as to show when the power of attorney is registered. The petitioner No. 1 to 5 are subscribers to the Memorandum of Association of the Company and were inducted in the Board of the Company on and from 2003. The petitioner No. 6 became the member of the company on 2nd July, 2004 and was also appointed Director. The petitioners are all shareholders of and in the company and together hold 35,875 equity share of Rs. 10/- each in the company. The petitioners in the pleading submitted that the Respondent No. 3, 4, 5 and 6 are wrongfully and illegally claiming to be the holder of 5000 equity shares each of petitioner Nos. 2, 3, 4 and 5 respectively as per paragraph No. 3(C) to 3(f). It is also averred that the Respondent No. 2 is wrongfully and illegally claiming to be the holder of 11,000 equity shares of the Company on the basis of alleged purchase ....
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....id as loan, or transferred in the account of Respondent No. 1, company. The petitioner(s) also denied to have resigned from the Company. On the other hand, the petitioners are admitting their signature appearing in the original resignation letter and receipt of payment on transfer of share as annexed with reply given by the respondent. But the allegation is that they put their signature in blank papers. 10. Pointing out the conduct of the petitioners, it was argued by the Ld. PCS appearing on behalf of the respondent that the petitioners did not deny having received the amount, although according to them they have received back the amount against the payment of loan to company though no iota of evidence filed by the petitioner. 11. Moreover, when the petitioners are claiming themselves to be the bona fide Director and shareholders of the company, then what made them to stop to look into the affairs of the company from 2004. Because it was also the duty of the Directors and shareholders to look into the affairs of the company when they are enjoying the benefits. 12. Admittedly, as per para 6.10, the petitioner No. 6 was inducted as Director and in para 6.18, allegation is made wi....
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....half of the respondent submitted that, if they are claiming themselves to be the Director and the shareholder(s) of the company, then why they were keeping silent since 2007, alleging inter alia that there was no Board meeting since 2006 and they have come to know only in December, 2014 when each of them received notice from the Lawyers of ASREC India Limited informing them that ASREC had substituted in place of and stead Axis Bank in proceedings pending before the Debt Recovery Tribunal. 18. Admittedly, from 2006-2007, there was no board meeting as alleged by the petitioner himself, then the cause of action arose in 2006 itself. Moreover, when the petitioner(s) are claiming themselves to be the shareholder and the director, a duty also cast upon them to enquire into the affair of the company convening the meeting, which they failed. 19. Had they were shareholders or Director of the Company after 2006-2007, they would have definitely enquired into the affairs of the company at least for their own interest as they have investments in the company which would fetch dividend to them. 20. It is beyond imagination that after having done investments in the company, the petitioner will ....
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....e 2005, no whisper has been made against the company with regard to alleged transfer of shareholding and/or resignation/removal from the Directorship. 27. Taking into consideration the stock of the afore stated facts, in my opinion, the petitioner(s) is/are not entitled to challenge the alleged transactions contained in Section 108(1) of the Act: In the case of Clande - Lilaa Parulekar Vs. Sakal Paper Pvt. Ltd. [2005] 124 Comp case 685 (SC) : [2005] 11 SCC 73 and Mannalal Khetan Vs. Kedar Nath Khetan (1977) 47 Comp case 185 (SC) 28. The facts were that the parties had challenged the transfer of shares contending that the transfer is bad for want of compliances of Section 108 and such persons were not parties to such alienation/transfer/sale. The contention of the petitioner, therefore, in my view, is not tenable that the transfer of share in question by way of sale is bad in law. I would further like to add here few authorities, wherein it has been laid down that where, the parties have acted upon transaction of sale, assuming there was some irregularity, such transfer cannot be disown by a person who himself/herself was party to such transaction. 29. Thus, for want of complia....
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....der section 420/120B/37/379/468 of the IPC sometime in 2006 for certain illegal activities undertaken by the petitioner(s) (as reflected at Page Nos. 58 to 62 of the reply). 38. Based on the above, it was contended by the Ld. PCS for respondent, that the petitioner only wants to harass the respondent for some vested interest and has filed false and frivolous petition after an inordinate delay of about 10 years as per their own petition, without giving any sufficient reason justifying the delay and laches and therefore, the petition deserves to be dismissed in limine. 39. I have carefully gone through the petition, reply and rejoinder filed therein and the original documents produced by the parties. 40. There have been allegations and counter allegations. Considering the equities between the parties, I find that the equity is in favour of the respondent. 41. Admittedly and also on perusal of the original documents produced by the respondent(s) and compared the same with the Photostat copy annexed with the reply, the petitioners had resigned from the Company and had also transferred the shares in 2007. However, as per their own petition, cause of action arose in 2005 as reflected....
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....he legislature is the time within which the relief by suit in a civil Court must be claimed, may ordinarily be taken to be reasonable standard by which delay in seeking the remedy under Article 226 of the Constitution of India can be measured. Where the delay is more than the period prescribed by the Limitation Act, then it would be appropriate for the Court to hold that it is unreasonable. 48. In that regard, reliance may be placed on seven (7) Judge judgment rendered in the case of State of Madhya Pradesh Vs. Bhai Lall Bhai and others, AIR 1964, SC 1006. The aforesaid view has been repeatedly followed and applied by the Hon'ble the Supreme Court. 49. In a recent judgment of MTNL Vs. the State of Maharashtra and others: 2013 (9) SSC, 92 placing reliance on the judgment rendered in the cases of Bhai Lall Bhai (Supra), the Hon'ble Supreme Court observed that in equitable jurisdiction, the maximum period of limitation can reasonably held to be the same as has been provided by the Limitation Act, where the person come to the Court for relief under Article 226 of the Constitution of India, then as a general rule, if there has been unreasonable delay, the Court ought not ordin....
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....ses (P) Limited; [1991] (72) Comp case 211 (Kar) it has been held that he who comes to equity must come with clean hands "......Even assuming that the allegations of the petitioner(s), if proved, do make out a case of oppression and mismanagement within the scope of section 397 and 398 of the Act, mere proof of allegations would not entitle the petitioner(s) to the reliefs sought for when these reliefs are discretionary reliefs and they will be granted only to persons who approach this Court in good faith and the parties who approach this Court for equitable reliefs must come with clean record. So, such a person should not be entitled to reliefs under Section 397 and 398 of the Act." 55. In Gujrat Bottling Company Vs. Cocoa Cola Ltd. [1995] 18 CLA 332(SC)/(1995) 5 SCC 545 at para 47, the Hon'ble Supreme Court has held that to invoke the equitable jurisdiction of the Court; the conduct of party is important. "......Since relief is only equitable in nature, the party invoking the jurisdiction of this Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or unequ....
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....scretionary power. 60. In a case Tilokchand Motichand Vs. HB Munshi (1969) 1 SCC 110 and Sabia Khan Vs. the State of Uttar Pradesh (1999) 1 SCC 271, this Court held that filing a totally misconceived petition amounts to abuse of the process of the Court. Such litigation is not required to be dealt with lightly, as a petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the Court. A litigant is bound to make 'full and true disclosure of facts'. 61. The Respondent(s) also relied on judgment passed by Karnataka High Court by Hon'ble Mr. Justice Jayant Patel and the Hon'ble Mr. Justice B Srinivas Goude, being Company Appeal No. 8/2016. 62. There is no dispute with the case law cited but each case turn on its own fact. 63. Considering the pleadings, the documents, arguments and legal decisions filed by both side, as applied to the facts and circumstances of the case, I find that the petitioner has not been able to controvert the contention of the respondent(s). 64. While exercising the equitable jurisdiction, I find that the equity is in favour of the respondent(s). Rather, it is conduct ....