TMI Blog2017 (2) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... has been filed on the strength of a Family Adjustment Deed dated 9.10.1999 and seeking virtually its enforcement in relation to the parties figuring therein. This Tribunal cannot go into the legality of the said Family Adjustment Deed as neither the Respondent Company is a party to such deed nor the terms contained therein are part of the Articles of Association of the Company. The subject matter of the Petition, (as is evident from the pleadings of the Petitioners themselves) seems to be more in the nature of a dispute amongst the members of HUF of their co-parcenary rights than a dispute which can be brought under the provision of Sections 111, 397 and 398 of the Companies Act, 1956, and for establishment of such rights, the petitioners are required to have recourse elsewhere and not before this Tribunal. Viewed in the context of all that has been said and done above, the petition of the petitioners suffers from delay and latches as well as estoppel and acquiescence and to cap it all the dispute is not amendable to the jurisdiction of this Tribunal for the reasons cited above. - Company Petition No. 52(ND)/2015 - - - Dated:- 10-2-2017 - M.K. Hanjura and R. Varadharajan, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strator be appointed to assume charge of the management and affairs of the Respondent Company or in the alternative a Board be constituted comprising the Petitioners as the directors and an outside professional be appointed to assist the Administrator or the Board, iii. The Petitioners would like to pray for condonation of delay in filing this complaint as it is quite apparent that the Respondent Company was incorporated to carry on the business in common pursuit of the family members having equal shares in the profit and loss in the R1. Therefore, the Petitioners approach the Hon'ble Bench to grant relief to the Petitioners by an injunction restraining the Respondent No. 2 from taking any steps to alter the capital structure of the Respondent Company or the register of members of the Company or dispose off any assets and properties of the Respondent Company during the pendency of the present application, iv. Declaration that Respondent No. 2 has been guilty of diverse acts of oppression and mismanagement as well as misappropriation of funds and assets and properties of the Respondent No. 1 - the Company, v. The Respondent No. 2 and any of his family members be restrai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convening any meeting of the Board of General Meeting may be passed as this Hon'ble Bench may deem fit and proper, 4. The Respondents have resisted and controverted the petition of the Petitioners on the grounds, inter alia that Respondent No. 1 company is not a family company and the principle of quasi partnership would not apply to R1 Company, all the family members of HUF of J.P. Agarwala were never the beneficial owners of shares and it is wrong to state that any of the shareholders of Respondent No. 1 Company were merely ostensible owners of the share held in their names. 5. Further it was argued that the accounts were jointly operated by both Petitioner No. 1 and Respondent No. 2 since inception and the position remains unchanged till date and Petitioner No. 1 has placed no material on record to prove the contrary and there is no material placed on record by the petitioner No. 1 to show that he had raised any dispute regarding the same since 2007, when he admittedly learnt about the instructions. The issue now sought to be raised admittedly after 7 years is barred by the principle of delay and laches. 6. Respondents also contended that the plea raised by the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tribunal and not any civil court and a such the contention of the Respondent No. 2 is misleading and liable to be rejected in limini. 11. Petitioners further contended that no specific instance has been mentioned where the answering respondent has purportedly signed papers to mislead the family members of the HUF and no outsider can be its member given the prohibition in its articles of associations. The shares held by one outsider at the instance of the Respondent No. 2 are illegal and Respondent No. 2 is liable to transfer them in the name of any of the members of the HUF family. 12. Petitioners submit that this Hon'ble Bench has valid jurisdiction to adjudicate any matters complained of under the provision of Section 397 398 of the Companies Act, 1956 and that company remains a separate legal entity, and issue of jurisdiction was never raised by Respondent No. 2 before filing of his reply after almost 8/9 months of the filing of the petition which clearly shows that he tried to delay the proceeding of the Bench. 13. The Petitioners alleged that Respondent No. 2 tried to blatantly mislead the Hon'ble Bench by omitting the later part of the same article which c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re real owners of the shares, at the instance of Respondent No. 2. In Pursuant to transfer of shares from outsider to Respondent No. 2 and Petitioner No. 1, Respondent No. 2 is not transferring the said shares to all the family members of HUF, for whom Petitioner No. 1 and Respondent No. 2 hold these shares as ostensible owners though Petitioner No. 1, is ready to transfer his shares. Respondent No. 2 is in the process of alienating the family property being lands purchased in Delhi and Alipur. Respondent No. 2 is claiming majority after transfer of shares from outsider, creating deadlock in the company, board meetings having been turned into a formality. Heard and considered. 20. What can be said at the first sight is that the Petitioners after rising from deep slumber challenged the action of the Company taken in the years 2001-2004 during which, the shares were transferred to 18 outsiders. Not only this, the accounts were jointly operated by the Petitioner No. 1 and respondent No. 2 since inception and the position remained unchanged. No material has been placed on record to prove the contrary. The Petitioners filed the Petition in the year July, 2015. The Petitioners have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an the period prescribed by the Limitation Act, then it would be appropriate for the Court to hold that it is unreasonable. In that regard, reliance may be placed on 7-Judge judgment rendered in the case of State of Madhya Pradesh v. Bhailal Bhai Ors. AIR 1964 SC 1006. The aforesaid view has been repeatedly followed and applied by Hon'ble the Supreme Court. In a recent judgment rendered in the case of MTNL v. State of Maharashtra and Anr. 2013 (9) SCC 92 placing reliance on the judgment rendered in the case of Bhailal Bhai (Supra), Hon'ble The Supreme Court observed that in equitable jurisdiction, the maximum period of limitation can reasonably held to be the same as has been provided by the Limitation Act. Where a person comes to the Court for relief under Article 226, then as a general rule, if there has been unreasonable delay, the Court ought not ordinarily to lend its aid to a party guilty of delay. Hon'ble The Supreme Court proceeded to cite para 21 of the judgment in Bhailal Bhal's case (Supra) wherein it is observed that maximum period fixed by legislature providing for the time within which the relief by a suit in a Civil Court may ordinarily be tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase may be.' 2) A perusal of the aforesaid provision makes it patent that the Limitation Act would apply to the proceedings or appeals before the Tribunal or the Appellate Tribunal. The question then is, what would be the period of limitation in cases where the petitioner has complained of illegal induction of Respondents as directors and wrongful reduction of their share capital with the allegations against the Respondents of grabbing majority shareholding unfairly as an act of oppression. It appears that there is no specific provision made either in the substantive section of the Limitation Act or in the Articles as per the Schedule. A close scanning of the schedule, however, reveals that Articles 1-112 deal with various types of suits viz., suits relating to accounts where period of limitation is three years, suits relating to contracts where again the period of limitation is three year, suits relating to declarations, suits relating to immovable properties, suits relating to moveable properties, suits relating to Trust and Trust property and miscellaneous matters. In most of the cases, the period of limitation is three years except the suit for possession of a heredit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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