TaxTMI 
TaxTMI 
2020 (10) TMI 19
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....along with the duly executed share transfer deed and necessary enclosures to the 1st Respondent Company on 29.01.2010. b) The 1st Respondent Company, by their letter dated 24.04.2010 had refused to register the shares and denied transfer on the ground that the company is a private limited company and that the shares were to be offered first to the existing shareholders by the ICICI Bank Limited as per the subscription and buy - back agreement between the 1st Respondent Company and the 5th Respondent. c) It is averred that the Petitioner in reply letter dated 05.05.2010 stated that the sale of shares by the 5th Respondent was done after due compliance and satisfaction including the requirement as per the share subscription agreement since the 5th Respondent has satisfied the said obligation by way of Public Notice in The Free Press Journal dated 16.09.2009. d) However, the 1st Respondent Company denied registration vide letter dated 09.12.2010 and thereafter, the petitioner once again vide letter dated 24.08.2011 and subsequently by letter dated 20.11.2012 requested the 1st Respondent Company for the purported subscription agreement and the Respondent Comp....
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....ounsel for the Petitioner for condoning the delay of 4 years in preferring the CP/95/2017 is that the petitioner, who is the Director and Principal officer, during the period from 2014 to 2017 had been diagnosed with cancer during which time, he was undergoing treatment and due to his unfortunate ill health, the Petitioner could not follow up on the matter of registration of the shares during the said period. In order to substantiate the same, the medical reports of the petitioner were attached along with the application. 5. The Learned Counsel for the Petitioner contended that Section 59(1) of the Companies Act, 2013 provides no period of Limitation in case of dispute in Registration of Share Transfer vis-a-vis to Section 58 wherein, the period of limitation is being prescribed for Refusal of Registration as to Public Limited Company and Private Limited Company. The Learned Counsel for the Petitioner also relied upon the Judgment of the Hon'ble Supreme Court in the matter of Improvement Trust, Ludhiana -Vs- Ujagar Singh and others (2010) 5TPL (Web) 424 SC, wherein it has been categorically held by the Apex Court as follows: While considering the application for condonati....
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.... under the Companies Act, 1956, in case of refusal to transfer the shares by a Public Company, no time limit was specified in filing an Appeal against 'Refusal' and whereas under the Companies Act, 2013 it is mentioned that in case, the 'Transferee' receives an intimation of refusal, an Appeal has to be filed within 60 days of such refusal and in case any intimation was received by a person, then, within 90 days of lodgment of the instrument of transfer with the Company. As regards the 'Condonation of Delay' matter, the length and breadth of the delay is an irrelevant one. On the other hand, the acceptance of explanation offered by a litigant/party is a material factor. If a party/litigant exhibits a 'Sufficient Cause' for the delay in question, then an Appropriate Authority may condone the delay and admit the main matter for 'Hearing' on merits. One cannot brush aside a vital fact that in Law, a 'Lis' is to be decided on merits and no party should be non-suited harping on technicalities and also by adopting a pedantic approach. 7. In relation to the Respondents, it may be seen from the record of proceedings of CP/95/2017 tha....
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.... in the matter of Satti Paradesi Samadhi and Pillayar Temple -Vs- M. Sankutala (Dead) through Legal Representatives and other, (2015) 5 SCC 674, has observed that issue of limitation requiring an inquiry into the facts, cannot be tried as a preliminary issue. The mixed questions of law and facts cannot be decided as a preliminary issue. Also the Hon'ble Supreme Court in the matter of Hareendran and others -Vs- Sukumaran and others, (2018) 14 SCC 187, has laid down that the question of limitation in the case being mixed question of law and facts, could not have been decided as preliminary issue. 10. The Hon'ble Supreme Court in the matter of Nusli Neville Wadia -Vs- Ivory Properties & Ors. in Special Leave Petition (Civil) Nos. 31982 - 31983 of 2013, while dealing with the issue of whether the plea of limitation can be raised as a preliminary issue or not, has at para 47 and 62 held as follows: 47. In a case question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order XIV Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order XIV....