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2021 (12) TMI 194
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....jasekhar V.K., Member (J) 1. This court convened through video conferencing. 2. The C.A. No. 77/KB/2021 has been filed by Athindra Nath Banerjee, the Petitioner No. 3 in T.P. No. 455/KB/2019, praying for substitution of Respondent No. 4, Late Provat Kumar Mitra with his legal heirs, Mr. Shantanu Mitra and Ms. Sharmistha Musgrave as Respondents No. 4A and 4B. 3. Mr. Ratnanko Banerji, learned Senior 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 N....
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....irs of the Respondent No. 4 are aware about the existence of the litigation, they have not filed any application for impleadment. c. Between 1988 and 2011, nothing happened. Certain interim orders were passed and a Special Officer was appointed who was collecting the rents. Between 2011 and 2012, certain company applications came to be filed alleging that the company has been taken over by certain interlopers, and the legal heirs of the deceased Petitioner No. 1 had illegally transferred the shares held by Petitioner No. 1. He further submitted that to the best of our knowledge, Respondent No. 4 never filed any affidavit in so far as the main petition is concerned, or in respect of any application filed after 2011. This is a proxy litig....
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....tes 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 plaintiff to be made party. Order XXII Rule 4 CPC states the procedure in case of death of one of several defendants or of sole defendant. The Petitioners have argued the case against ....
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....heirs of the deceased have to answer some charge. The discretion must be applied only if the court feels that the legal heirs must be added as a party to answer something alleged in the petition. It cannot be automatic. j. Mr. Joy Saha further submitted that the rule 53(1) and rule 53(2) of the NCLT Rules are independent of each other. 5. Mr. Arindam Banerjee, learned Counsel appearing on behalf of Respondents No. 16 and 17 adopted the arguments of Mr. Joy Saha, learned Senior Counsel appearing for Respondents No. 13 to 14. In addition to the above, he made the following submissions: a. Order 22 Rule 1 sub-rule 1 of the CPC states where one or two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff ....
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....o of the Respondents have passed away. One Shreya Mitra has come in as the legal heir of Petitioner No. 1. One of the Respondents has passed away and her interest is unrepresented. 7. Mr. S.N. Mookherjee, learned Senior Counsel (now learned A.G.) appearing on behalf of the proposed Respondents No. 4A and 4B submits that: a. The company owes its existence to late Benoy Krishna Mitra who started it and he ensured that the shareholding in the company was held by him, his wife and all five branches of his children had representation in the shareholding. But as far as his daughters were concerned, daughters were not given shares, but his sons in law were. b. 55,850 equity shares were within the family, distributed in this manner, and apart ....
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....olding, 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 2....