TaxTMI 
TaxTMI 
2017 (2) TMI 1402
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....ng of Respondent No. 1 Company was divided 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 ....
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....unts, contracts, lease etc. to his office for inspection. viii. Mandatory injunction directing 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 ....
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....he Companies Act 1956 and is motivated solely to settle personal vendetta and learned counsel also stated that the petition is entirely frivolous as the petitioner 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 ....
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....CC 160 and 88 Comp. Cas. 750 John Tinson & Co. (P) Ltd. Vs. Mrs. Surjeet Malhan. 16. Ld. Counsel also argued that if the beneficial shareholders are not allowed to exercise 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 a....
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....r to the question whether or not the provisions of Limitation Act apply to these proceedings a cue can be had from the law laid down by the Principal Bench of this Tribunal (presided over 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 caten....
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.... been made in S. 242(2) of 2013 Act. Therefore, from that point of view also, the petition is liable to be dismissed as barred by delay and laches. * The law cited above not only makes it abundantly 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.....
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.... * "PART X - SUIT FOR WHICH THERE IS NO PRESCRIBED PERIOD 21. Applying the ratio of the law laid down above to the facts and circumstances of the instant Petition it can in unequivocal terms be said that after a great lull in an alleged storm, the petitioners instituted these time barred legal proceedings against the Respondents. The Petitioners were obliged under law to prosecute their claim within a period of 03 years which they have not done. They slept over the matter for long and, therefore, it can reasonably be said that the Petition of the petitioners is not only barred by the principle of delay and latches but also by estoppel and acquiescence. The Petitioners did not raise an issue from the years 2001-2004 or after the year 2007. On the contrary, the Petitioners duly signed and filed the Annual Returns of the Company which form a part of compilation of the public documents filed by the Respondent No. 2. 22. The Petitioners in the petition have also failed to arraign proper and necessary party to the proceeding, namely, Mr. Goddrayn Arengh, who it is claimed by the Petitioners is an outside shareholder, holding 8.2% of the share capital and against whom, reliefs h....