TaxTMI 
TaxTMI 
2021 (12) TMI 194
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.... Counsel for the petitioners submitted that: a. the Applicant was informed that the Respondent No. 4, Late Provot Kumar Mitra left for his heavenly abode leaving behind his son, Shnatanu Mitra and daughter, Sharmistha Musgrave, hence relief is sought to record the death of Respondent No. 4 and impleadment of the legal heirs of the Respondent No. 4 in T.P. No. 445/KB/2019 as Respondent No. 4A and Respondent No. 4B. b. Rule 53 of the National Company Law Tribunal Rules, 2016 provides for substitution of the legal representatives of the deceased persons during the pendency of the legal proceedings before this Tribunal and within the period of limitation. 4. Mr. Joy Saha, learned Senior Counsel, appearing on behalf of Respondent No. 13 and Respondent No. 14 has vehemently objected to the substitution of the Respondent No. 4 with his legal heirs. He submitted that: a. No relief has been sought against Respondent No. 4 The present application is made by the Petitioner No. 3 of T.P. No. 455/KB/2019 against the other Respondents, some of whom have died, including Respondent No. 2, but no prayer has been made against Respondent No. 4, the principal con....
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....pany is now struck off The Respondent No. 1 company has been struck off from the register of companies for a very long time. f. There is no authority on record to represent the daughter of Respondent No. 4, Sharmistha Musgrave. There is no document produced by the son of Respondent No. 4 to show that he has authority to represent his sister. The email dated 26.05.2021 from Shantanu Mitra (the son of Respondent No. 4) does not disclose any authority. g. Mr. Joy Saha lead us through Order XXII of the Civil Procedure Code, 1908, ("CPC") stating that Order XXII Rule 1 thereof states that there is no abatement if the right to sue survives. Order XXII Rule 2 CPC states that where the right to sue survives, where one or several of the plaintiffs die, the suit shall proceed at the instance of the surviving parties. Order XXII Rule 2 CPC is about the procedure to adopted where the plaintiffs die. If the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaint....
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.... or two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. b. Substitution would have to follow the path mentioned in sub-rules (2) and (3) of Rule 53 of the NCLT Rules. If the legal heirs do not make an application, the proceedings qua those Respondents should abated. c. Mr. Arindam Banerjee raised three main objections: i. the persons who have applied for having this substitution is beyond the scope of sub-rules 2 and 3 of Rule 53 of the NCLT Rules. The power under sub-rules 1 of Rule 53 of the NCLT Rules should not be exercised. ii. this forum is devoid of the power to substitute. iii. In a situation where the heirs do not bring about an application for substitution, then it would be open to the Tribunal to exercise the power to add the parties. 6. Mr. Sudipto Sarkar, leaned Senior Counsel appearing on behalf of the Respondent No....
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.... been repaid, the shares should have been returned to the legal heirs. If the shares of B.K. Mitra and S.L. Mitra were divided equally among the five branches, Respondent No. 4 would become one of the single largest shareholders. Hence, in view of the prayer made in the main petition and the indefeasible right to the largest block of shareholding, the Respondent No. 4 has every right to be before this Tribunal as a necessary and proper party and so do the legal heir of the Respondent No. 4. g. it is not true that the Respondent No. 4 was conducting proxy litigation, the Respondent No. 4 has affirmed an affidavit on 19.11.2011 in C.A. 755/2011 which was filed before the High Court of Calcutta. Similarly, there are a series of affidavits that have been signed by the Respondent No. 4, an affidavit dated 25.06.2011 affirmed by the Respondent No. 4 has been filed in C.A. 493/2011 and another affidavit has been filed in C.A. 485/2011 on 08.08.2011. h. in reply to the contention raised by Respondents No. 13 and 14, that the Respondent No. 4 has not affirmed any affidavit since 2011, the learned Senior Counsel draws our attention to C.A. 126/2013 which is an application m....