Home Case Index All Cases Companies Law Companies Law + Tri Companies Law - 2016 (12) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (12) TMI 1604 - Tri - Companies LawOppression and mismanagement - illegal & unlawful allotment of shares - EOGM was held without giving prior notice to the non applicant-petitioner - Dismissal of Company Petition on the ground of delay and laches - Held that:- Even in the absence of application of the provisions of Limitation Act, the petitioner cannot surmount the difficulty of delay and laches. It is well settled that when a member of a company files a petition under S. 397 and 398 read with S. 402(g) of the 1956 Act, he is necessarily invoking equitable jurisdiction of this Tribunal. S. 402 of the Act expressly provides that the Tribunal is empowered to pass any order which it considers just and equitable. Similar provision has been made by S. 403 of the Act vesting the Tribunal with the power to pass any interim order as it deems just and equitable. Similar provisions have now been made in S. 242(2) of 2013 Act. Therefore, from that point of view, the petition is liable to be dismissed as barred by delay and laches. The allotment of share was made to the father of Respondent No. 3 Late Mr. Francis Wacziarg who is no more. It is not understood as to how the allotment could be effectively defended by his daughter who is impleaded as Respondent No. 3. The intervention of third party right is also a relevant factor for us to conclude that the petitioner had disentitled himself to claim any relief under the equitable jurisdiction, particularly, when the Tribunal has been assigned the role and status as that of the High Court (see the observation made in the case of Union of India v. R. Gandhi, President, Madras Bar Association (2010 (5) TMI 393 - SUPREME COURT OF INDIA). We are also not impressed with the submission that the decline in payment of dividend on 22.03.2013 furnished the petitioner knowledge of its reduced share capital and clothed it with a cause of action because in the year 2006, 2009 and 2010 no dividend were paid. Again in the year 2012 the Respondent No. 1-company did not announce any dividend. If any foul play was to be apprehended then the petitioner should have set in motion the machinery of ventilating its grievances during those years. Moreover, the petitioner is not a member of gullible public but is a private limited company which is ordinarily assisted by competent professionals like company secretaries and chartered accountants. Therefore it is not believable that they had no knowledge of various events taking place in the Respondent No. 1-company starting from the year 2007 to 2011. Therefore we are unable to persuade ourselves to accept aforesaid submissions for commencement of the period of limitation w.e.f 22.03.2013. Whether once mandatory provision of law is infringed then irrespective of question of delay, the invalidity cannot be allowed to continue? - There is no rule of law that a void order challenged at any time without requirement of complying with the principles covering delay and laches and can thus be ignored. In other words a void and unlawful order does not attract any period of limitation. In the case of State of Punjab v. Gurdev Singh (1991 (8) TMI 328 - SUPREME COURT)it has been led out by Hon'ble the Supreme Court that even void and illegal order have be challenged within the period of limitation. Therefore we are unable to persuade ourselves to accept the submissions made by Mr. Vasisht. Thus petition fails
|