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TMI Blog2017 (4) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... sought that an injunction restraining the respondents from interfering with the management and affairs of the company be issued. A scheme be framed for management and control of the company and running of operation thereof. In this company application, the petitioner has stated that he has filed this petition on 27.07.2012 and after that in October, 2012, it has come to the knowledge of the petitioner that the name of the respondent No. 1 has been struck off by the Registrar of Companies since October, 2012. The petitioner has submitted that the fact of striking off the name of the respondent No. 1 was not brought to the knowledge of this Tribunal. The petitioner has further submitted that there has been a failure on the part of the respondent Nos. 2, 3, 4 and 5, who were at all material times in management and control of the company have failed to carry out their duties prescribed under the Companies Act by filing the necessary balance sheet, audited accounts and other relevant forms as required from time to time. The petitioner has further submitted that the liabilities of the respondent company has increased over the period of time and post 2007 no balance sheet or annual recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition is not maintainable. The respondents have also taken this ground that the petitioner does not have the share qualification in terms of section 399 of the Companies Act and the Company petition is therefore, not maintainable. Heard the arguments of the ld. Counsels of the petitioners and the respondents. The main point which has been argued by the respondent is regarding the maintainability of the company application, as the respondents have claimed that the petition is not maintainable and the respondent's claim is based on two grounds. Firstly, that the petitioner is not a shareholder of the respondent No. 1 company. Therefore, the petitioner has no locus to institute a proceeding and second ground that the respondent has pressed is regarding the pendency of partition suit in respect of entire estate left by late Shri N.C. Ghosh who happens to be deceased father of the applicant/petitioner. The respondents have also taken the ground in respect of share qualification under section 399 of the Act. In reply to the above, the petitioner has submitted that she is entitled to 2576 equity shares of Rs. 100/- each which is equivalent to 16.36% of the paid-up share capital of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final order while disposing of the company petition and no appeal has been preferred against that order. Therefore, this issue of maintainability cannot be raised at this stage. The petitioner has further stated that once the company petition is admitted then the maintainability of the same cannot be challenged and more over when the demurral application has been disposed of in the year 2014, and in a situation when the name of the respondent company was struck off. Regarding pendency of Civil Suit, petitioner's claim that the partition suit was not instituted by the petitioner and the subject matter of the present company petition is relating to the company K.C. Ghosh and Sons Pvt. Ltd. and its management and administration. The question of oppression and mismanagement of the company K.C. Ghosh & Sons Pvt. Ltd. is not in question before the Civil Court. The respondents have claimed that the entire claim of the petitioner is based on the basis of entitlement of 2576 number of equity shares of and in the said company which is allegedly equivalent to 16.36% of validly issued, subscribed and paid-up share capital of the said company and accordingly reliefs were claimed in the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e capital of the company. The petitioner is the daughter and successor-in-interest of late Shri N.C. Ghosh holding 10304 equity shares in the company in her own name. Late Shri N.C. Ghosh dies intestate on 24.08.2007, leaving behind four children, and the petitioner is therefore, entitled to 2576 equity shares, which is 16.36% of the paid-up share capital of the company. The alleged entitlement of shareholding that the petitioner claims, is regarding her entitlement of shares. The respondents' main objection is that this notional entitlement does not meet the requirements of section 399 of the Companies Act, 1956. In respect of above, the petitioner's Counsel has relied on the case law of Hon'ble Supreme Court at page 547 World Wide Agencies (P.) Ltd. (supra). In the above-mentioned case, the Hon'ble Supreme Court has laid down the law that:- "it appears to us that to hold that the legal representatives of a deceased shareholder could not be given the same right of a member under sections 397 and 398 of the Act, would be taking a hyper technical view, which does not advance the cause of equity or justice. The Hon'ble High Court in its judgment under appeal, pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution of India wherein the Hon'ble Supreme Court has laid down the law that Article 226 does not permit such an action for issuing direction in the nature of temporary injunction. The respondent has further contended that the interim application is barred by the Law of Limitation. In this respect the petitioner's Counsel has relied on the case law of the Hon'ble Supreme Court in the case of M.P. Steel Corpn. -vs- CCE [2015] 7 SCC 58. In the above-mentioned case law, the Hon'ble Supreme Court has held that provisions of Limitation Act apply only in respect of proceedings being prosecuted in proper Courts i.e. Court as understood in the strict sense of being part of the judicial branch of the State. Whether principles underlying provisions of Limitation Act may be applied to the branch of the State, whether principles initially may be applied to the quasi-judicial Tribunals, as there is not any statutory scheme that rules out or bars applicability of such principles, that Courts always lean in favour of advancing the cause of justice, where a clear case is made out for so doing, since justice and reasons is at the heart of all legislations in the Courts, Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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