TMI Blog2017 (4) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... it will have no effect on the present petition because on the date of the filing of the petition, company was in existence and it is also pertinent to mention that in the I A, the petitioner has claimed interim relief for rendering the accounts in respect of dealings with the funds and properties of the respondent No. 1 company, from the date of filing of the company petition till striking off. Therefore, the petitioner has not asked any account after the striking off the company. It is also pertinent to mention that directors are also individually responsible. Therefore, the petition is maintainable against directors. It is also necessary to mention that on the date of the filing of the petition, companies name was not struck off and it has been struck off only during the pendency of the petition. The petitioner claims that it is also a proof of alleged act of oppression and mismanagement that companies name has been struck off when the company was under effective management and control of respondent Nos. 2, 3, 4 and 5. In view of the above, it appears that interim application deserves to be allowed. I.A. is hereby allowed and respondent directors are directed to render the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 records have been filed, which is contrary to the provisions of the Companies Act. The petitioner has further submitted that alleged act of the respondents in having name of the company struck off from the Register and records of the MCA are also an attempt to deal with, dispose of and siphoning off the assets of the company. This is more so because the company is no more existent and hence the respondent Nos. 2, 3, 4 and 5 are acting in a collusive manner and have taken all efforts to siphon o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntainable 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 ₹ 100/- each which is equivalent to 16.36% of the paid-up share capital of the company. The petitioner claims that she is the daughter and successor-in-interest of late Shri N.C. Ghosh who was holding 10,304 equity shares in the company in her own name. Late Shri N.C. Ghosh dies intestate on 24.08.2007 leaving behind four children including the petitioner. Therefore, the petitioner is entitled to 2576 equity shares, which is 16.36% of the paid-up share capital of the company. The petitioner has also relied on the case law of the Hon'ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 said company petition. The respondents have further stated that the company petition was moved in the year 2012 when the Company Law Board had refused to pass any interim order. The respondents have further submitted that the petitioner does not hold a single share in the respondent No. 1 company. Therefore, the petitioner does not have requisite qualification for filing the present petition. The respondents have relied on the case law of the Hon'ble Supreme Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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, proceeded on the basis that legal representatives of a deceased member represent the estate of that member, whose name is on the Register of members. When the member dies, his estate is entrusted in the legal representatives. When, therefore, this vestings are illegally or wrongfully affected the estate through the legal representatives, must be enabled to petition in respect of oppression and mismanagement, and if the estate stands in the shoes of the deceased member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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, Tribunals and Special Courts. The respondents have contended that the same dispute is pending before the Civil Court. It is quite clear that Civil Court has no jurisdiction to decide the allegation of oppression and mismanagement. The question of oppression and mismanagement of a company can only be decided by this Tribunal and the alleged allegations of oppression and mismanagement against the company K. C. Ghosh Sons Pvt. Ltd, is not an issue in a Civil Suit, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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