TMI Blog2004 (3) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... r must have filed the Company Petition within two months of the receipt of notice of refusal, if any, or where- no notice has been sent by the Company, within four months from the date on which the intimation of transmission was delivered to the Company as envisaged in Sub-sections (2) and (3) of Section 111. The communication dated 31.05.2003 forwarded by the Company (Annexure - F at Page 54 of Petition) was in relation to the claim of the petitioner in terms of the order of the CLB made in CP No. 68/2000. This cannot be construed as formal refusal of the petitioner's application. Accordingly, the petitioner in the present case ought to have filed the Company Petition on or before 24.11.2002 (i.e) within four months from the date on which the petitioner said to rave delivered the application to the Company but chose to file only on 18.09.2003, after a delay of 290 days, and not 45 days as contended by the petitioner, thereby the same is barred by limitation. The petitioner has not offered any proper explanation for the delay of 290 days. The causes shown are insufficient to condone the inordinate delay on the part of the petitioner, as held in Jonas Hemant Bhutta v. Surgi p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e power to condone the delay in filing the Company Petition, as held in V.K. Gupta v. Auto Lamps Ltd - 1999 (96) C.C 555 and further placed reliance on the decision in Citi Bank NA v. Power grid corporation of India Ltd - 1995 (83) CC 454 - to show that the remedies under Section 111(2) and Section 111 (4) are alternate remedies. Refusal to register transfer and delay in registering transfers are treated at par, in which case the present petition can be maintained under Section 111(4) which does not prescribe any time limit within which the CLB must be approached unlike Sub-section (3) of Section 111. While the petitioner would be put to irrepairable hardship, in the event of dismissal of the Company Petition on the ground of limitation, the respondents would not in any way be prejudiced if the delay is condoned by the CLB. The learned Counsel pointed out that he was under bonafide belief till the recent clarification made by the--CLB in the connected proceeding that there is no requirement of any statement of objections accompanied by an affidavit verifying the same and therefore, sought indulgence of this Bench to waive the said requirement. For these reasons, the learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with reference to the CLB, in my considered view, has no application in the facts and circumstances of the present case. I shall now proceed to consider as to whether the petitioner has shown sufficient cause to condone the delay of 290 days in filing the Company Petition. Towards this end, I am guided by the settled law as propounded by the Supreme Court in a number of cases to the effect that the term sufficient cause in Section 5 must receive liberal consideration so as to advance substantial justice and, generally, delays in bringing the appeals are required to be condoned in the interest of justice, whose no gross negligence or deliberate inaction or lack of bonafides is imputable to the parties seeking condonation of delay. While the petitioner seeks to condone a delay of 45 days, it is denied as 290 days by the Company. This controversy, in my view, must be borne in mind in the light of the communication dated 31.05.2003 of the Company in favour of the petitioner (Annexure-F at page 54 of petition), relevant portion of which reads as under: Sub: (1) Settlement brought about by Hon CLB (2) Full and Final Settlement of Shares including all Claims Ref: (a) Orders of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mother. In this connection, beneficial reference is invited to a decision of the CLB in Vimal K. Gupta v. Auto Lamps Ltd. - (1996) 86 CC 157 to show that if a company does not formally refuse to transfer shares after any length of time, against the time limit specified under Sub-section (1) of Section 111, two months from the date of such intimation of refusal would be available to the aggrieved person to approach the CLB under Section 111(2). Under these circumstances, the petitioner ought to have filed the Company Petition within two months form the date of receipt of the communication dated 31.05.2003 by the petitioner of the refusal by the Company to effect the transfer (i.e) on or before 01.08.2003, but filed only on 18.09.2003. Thus, the delay could not be 290 days, as contended by the Company. Against this background, the claim of the petitioner in support of his application made on 25.07.2002 (Annexure E at page 53 of petition) for registration of the transmission of the shares in his favour and the counter claim of the Company denying any such application become redundant, in the light of the specific averments made by the Company in its communication dated 31.05.2003 (Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
