9911796707
TMI Blog2016 (10) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... atent 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 movable 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 hereditary office etc (from Articles 107 to 110) where the period of limitation p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... superior than the erstwhile Company Law Board in the matter concerning implementation of orders passed by the Tribunal. Section 424 of 2013 Act classifies the nature of proceedings before the Tribunal and provides as under: "424 - (1) The Tribunal and the Appellate Tribunal shall not, while disposing of any proceeding before it or, as the case may be, an appeal before it, be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice, and, subject to the other provisions of this Act [or of the Insolvency and Bankruptcy Code, 2016] and of any rules made thereunder, the Tribunal and the Appellate Tribunal shall have power to regulate their own procedure. (2) The Tribunal land the Appellate Tribunal shall have for the purpose of discharging their functions under this Act [or under the Insolvency and Bankruptcy Code, 2016], the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:-- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Penal Code. The Tribunal is deemed to be a Civil Court for the purpose of Sec. 195 and Chapter 26 of the Code of Criminal Procedure, 1973. 8. Another feature in this regard is revealed by Sec. 425 of 2013 Act. The Tribunal has been vested with the same jurisdiction, powers and authority in respect of its contempt as the High Court has and it may exercise for this purpose all the powers under the provisions of Contempt of Courts Act 1971. Therefore, it becomes evident that the orders passed by the Tribunal are executable as decree of the Court and in case of any violation of its orders, Sec. 425 vests the Tribunal with the power of issuing contempt. Once it is a decree then it follows that the proceedings under Sec. 241 and 242 of 2013 Act are necessarily proceedings in a suit. It has all trappings of a suit. Therefore, the period of limitation provided for suits would, ipso facto, be applicable as the Limitation Act has been specifically made applicable by Sec. 433 of 2013 Act. Therefore/in cases where no period of limitation has been provided, the residuary Article 113 would be applicable and the period of limitation would be three years from the date the right to sue accrues. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 995 and Respondent Nos. 2 & 3 were its initial promoters. There is a Joint Venture Agreement dated 20.12.1995 between Petitioner No. 1 and Respondent No. 6 (S.M. Telesys Ltd., NOIDA) along with two other companies. They had all agreed initially to incorporate a Joint Venture Company in India by the name of NICE Telecom Ltd. A copy of the Joint Venture Agreement dated 29.12.1995 has been placed on record (P-9). However, on a proposal mooted out by Respondent No. 2 on a subsequent date, all parties to the joint venture agreement agreed to subscribe to the shares of Respondent No. 6 company in the same proportion as agreed in the joint venture agreement. The idea of incorporating NICE Telecom Ltd. was dropped. Consequently, the petitioner subscribed to the shares of Respondent No. 6 company which was followed by the other partners of joint venture agreement like LG Information and Communications Ltd. and NARAY Mobile Telecom Inc. of South Korea. One Shri G.S. Saluja was appointed as nominee of petitioner No. 1 on the Board of Directors; and Respondent Nos. 2 & 3 were appointed as nominee directors of Respondent No. 6 company. Likewise, one director each was appointed as its nominee by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was illegal. 16. There are allegations of oppression and mismanagement against Respondent Nos. 2 & 3, with further allegations of siphoning of funds in the name of fictitious creditors of the company. A reference has been made to an illegal AGM held on 30.8.2010. Likewise, instances have been given of appointment of one Adardeep Apparels (P) Ltd. as a Consultant on 07.08.2009. 17. The petitioners have also disclosed that the petitioners have not previously filed any suit, application or petition with regard to matters complained of in the instant petition against Respondent No. 1 company. However, Petitioner No. 1 is stated to have filed a petition u/s. 397 & 398 of Companies Act, 1956 against Respondent No. 6 being CP 67/2006 but Respondent No. 1 has not been a party respondent in the aforesaid petition. It is thus patent that the petitioners have not agitated any cause before any forum against Respondent No. 1 company except the one in hand for the first time. 18. A perusal of Annexure P-3 (Form 20B) shows that the last AGM of Respondent No. 1 company was held on 29.9.2012 and there is no mention of names of either petitioner No. 1 or petitioner No. 2. Likewise, a copy of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The question of acknowledgment does not even arise. There is a serious doubt whether the petitioners have any locus standi to file such a petition. Therefore, we are satisfied that this petition is liable to be dismissed without grant of any benefit of Section 18 of the Limitation Act and for lack of locus standi on the part of the petitioners. 21. In so far as CP 67/2006 filed by Petitioner No. 1 against 09 respondents is concerned (P-6), it has no bearing on the grievances made in the instant petition preferred against Respondent No. 1 company. It has not been even a party in CP 67/2006. The present petition is directed against Respondent No. 1 company or its directors - Respondent Nos. 2 to 5. CP 67/2006 as filed by petitioner No. 1 is directed against 9 respondents which are as follows: 1) M/s. S.M. Telesys Limited, Bhiwadi (Raj) 2) Ram Janki Sharan, Lucknow 3) Mr. Nageshwar P. Sen, New Delhi 4) Ms. Renuka Devi Sen, New Delhi 5) Rohit Kumar, New Delhi 6) Jaya Kumar, New Delhi 7) Ms. Kamna Gupta, New Delhi 8) S.N. Gupta, Etah (U.P.) 9) Sanjay Kumar, Vaishali, Bihar 22. It is needless to say that any observation made in the instant order shall not be construed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
