AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (2) TMI 1402
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....between the Petitioner No. 1 and the Respondent No. 2 as 50% each. Thereafter some shares were allotted to the Petitioner's, the Respondent No. 2 and outsiders, where after the Petitioner's cumulatively held 15.23% shares of the Respondent No. 1 Company, R2 held 8.6% shares of the R1 company and rest 76.17% shares were held by outsiders as on 30.9.2004. In 2014 the share held by 17 out of 18 outsiders were transferred in favour of the Respondent No. 2 and the Petitioner No. 1. After the transfer R2 held 40.90% and the Petitioner's held 50.83% share in the Respondent No. 1 Company. 3. The case of the Petitioners further is that the Respondent No. 1 Company is a family company and that the acts of the Respondent No. 2 are against the will and wish of HUF of Sh. J.P. Agarwala. It is also the case of the Petitioner's that Petitioner No. 1 and the Respondent No. 2 were ostensible owners and further shares allotted to other family members were also held by them as ostensible owners, holding the shares for the benefit of the family. These could not have been transferred to others which has been done in the instant case and the accounts of the Company have also been misman....
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....ng the Respondent No. 2 to hand over the Cheque Books of the Respondent Company to the administrator or the committee of Directors of the Respondent Company as may be appointed by the Hon'ble Bench. ix. Mandatory injunction restraining the Respondent No. 2 and his family members to dispose of any assets and properties of the Respondent Company without the consent of other shareholders of the Respondent Company. x. Mandatory injunction directing the Petitioner and an outside professional to operate the Banking Accounts of the Respondent Company jointly, xi. Injunction restraining Respondent No. 2 from appointing any Person as director of the Respondent Company and filing forms other than Statutory Forms mandated to be filed periodically under Act. xii. Mandatory injunction directing the Respondent No. 2 to divide by transferring the shares existing in his name equally among the other petitioners i.e. four brothers of the Agarwala family or their Respondent wards. xiii. Mandatory injunction directing transfer of shares held in the name of Godfrey N. Arengh in the name of the family members. xiv. Mandatory injunction directing for alteration of Articles of Association ....
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....ioner No. 1 himself has been at the helm of affairs of the company as a promoter director. 8. The crux of the rejoinder filed by the Petitioner is that Respondent No. 2 has failed to specify any cogent reason whatsoever for his contention in the aforesaid and as such the same are invalid and liable to be rejected threshold. The main allegations whereof include refusal of Respondent No. 2 to allow the company to carry on any business prejudicing its going concern status, transfer of shares from one outsider who was allotted those shares at the instance of the Respondent No. 2 along with the others and as such the contentions of the Respondent is baseless and liable to be rejected in limine. 9. The Petitioner further contended that the claim of separate entity is a sham inasmuch as the company was promoted out of the money of the family and not by P1 & Respondent No. 2 and as such both of them are merely ostensible shareholders of the Respondent No. 1 Company and holds shares in trust for the benefit of the members of the family. The petitioner admits that the shares held by him belongs to the family and he is only an ostensible owner of those shares and holding in trusts for the f....
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....their legal and proprietary rights in view of this dispute it's an oppressive conduct. 17. Ld. Counsel for the Petitioner's further submitted that that Respondent No. 2 has failed to specify any cogent reason whatsoever in his contentions raised in the matter and as such the same are invalid and liable to be rejected threshold. The main allegations whereof include refusal of Respondent No. 2 to allow the company to carry on any business prejudicing its going concern status, transfer of shares from one outsider who was allotted those shares at the instance of the Respondent No. 2 along with the others and as such the contentions of the Respondents are baseless and liable to be rejected. 18. The Ld. Counsel for the Petitioner's further contended that the claim of separate entity is a sham inasmuch as the company was promoted out of the money of the family and not by Petitioner No. 1 & Respondent No. 2 and as such both of them are merely ostensible shareholders of the Respondent No. 1 Company and holds shares in trust for the benefit of the members of the family. 19. In 2007, Respondent No. 2 instructed the bank to allow transactions only on his exclusive sanction and n....
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....r by his lordship Hon'ble President Chief Justice M.M. Kumar,) in the case of Praveen Shankaralayam v. M/S. Elan Professional Appliances Pvt. Ltd. and Ors., Para 11 of which assumes significance and it is reproduced below word for word and letter for letter:- A view may be taken that the Limitation Act is not applicable on the ground Section 433 of 2013 Act has been enforced with effect from 01.06.2016 and the present petition was first filed in October, 2015. In other words, the period of limitation as prescribed under the Companies Act, 1956 is applicable. It may be seen that u/s. 10GE of the Companies Act, 1956, the provisions of the Limitation Act have been made applicable only to appeal made to the Appellate Tribunal. The words 'applied to proceedings' before the Tribunal were added only by Sec. 433 with effect from 01.06.2016. Even then the petitioner will not be able to surmount the huge delay of over three years in approaching this Tribunal. It is well settled by a catena of judgments rendered by the Hon'ble Supreme Court that for proceedings initiated by invoking equitable jurisdiction under Article 226 of the Constitution, the maximum period fixed by the....
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....y clear that the provisions of the Limitation Act do apply to these proceedings but it also stated as to what would be the period of limitation in cases where the grouse of the petitioners among others is. Paras 1 to 3 of the judgment supra also have a bearing on the subject and these are reproduced below verbatim-et-literatim:- * "1. Some litigants take chances even to seek enforcement of their imperfect rights which have become un-enforceable in a Court of Law. They appear to think that they can knock the doors of the Court of their pleasure without any regard to the efflux of time washing away the cause of action. In order to prevent such litigants to rake up settled matters after the period of limitation, the legislature has enacted the Limitation Act, 1963 (for brevity, Limitation Act'). Even otherwise sound principles of law have been laid down preventing such litigants to approach the Court beyond period of three years from the date cause of action has arisen. The Limitation Act stands incorporated by reference and has been applied to matters concerning company by Section 433 of the Companies Act, 2013 (for brevity '2013 Act'). It is pertinent to first notice S....