TMI Blog2017 (12) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... Period of limitation - Held that:- In view of the finding that ROC is not a “court”, time spent by the petitioner before ROC cannot be excluded for computing the period of limitation. No document is filed to show that letter dated 19.07.2016 addressed to ROC, MP was received by ROC, MP and reply was filed by ROC. Therefore, letter dated 19.07.2016 cannot be taken into consideration. Even assuming that time taken by ROC can be excluded for petitioner made a specific reference for rectification of Register of Members in the letter dated 10.10.2016 which was replied by ROC on 27.10.2016 and, therefore, the time consumed by ROC is only 17 days. Even that 17 days is excluded, still this petition is not within limitation. Delay of 31 days condoned for filing the composite petition- Held that:- In the case on hand, after the shares of the petitioner were transferred, there was a decision to increase the authorised capital and there was a decision of the company to allot 9000 shares to respondent No. 6. In case if the delay is condoned and if name of the petitioner is rectified in the register of members, then there is a cause for the petitioner to say that increase in the share capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 challenging the transfer of 200 shares held by her in the first respondent company to the 3rdrespondent on 15.03.2013; challenging the increase in authorised share capital of the first respondent company from ₹ 1.00 lac to ₹ 10.00 lacs on 27.08.2015; allotment of 9000 shares of the first respondent company to respondent No. 6 on 29.01.2016; challenging siphoning of funds of the first respondent company and attempts to sell and transfer of assets of the first respondent company. 02. The facts in brief that are necessary for adjudication of the issues involved in this petition are as follows: - 03. Agal family, during 1987, promoted the first respondent company. Petitioner is wife of 2nd respondent till their marriage was dissolved by decree of divorce on 12.01.2001. Agal family consist of five major members including the petitioner till she was divorced. The first respondent company is a family company. There is no dispute about the fact that originally petitioner and respondents No. 2 to 5 were holding 200 shares each in the first respondent company. Authorised capital of the company was ₹ 1.00 lac divided into 1000 shares of ₹ 100/- each till it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the said letter to the petitioner by his letter dated 10.08.2016. 06. It is stated by the petitioner that she never sold 200 shares of the first respondent company to Respondent No. 3 or to any other person. Petitioner further pleaded that she did not execute any transfer deed in favour of any person including respondent No. 3 in respect of 200 shares of the first respondent company. Petitioner also pleaded that she did not receive any payment towards consideration for the transfer of her 200 shares. Petitioner alleges collusion amongst the respondents and effected transfer of her shares in the name of respondent No. 3. 07. Petitioner with the assistance of authorised representative downloaded various forms filed by the first respondent company with the Registrar of Companies, MP from 2011 to 2016. Form No. 32 filed by the respondents with the Registrar of Companies MP on 27.01.2011 shows that respondent No. 2 had resigned from the Board of the first respondent company and respondent No. 3 and 6 were appointed as Directors of the first respondent company. Form No. 18 filed by the first respondent company disclose registered office of the first respondent company was shifte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing of the petition and, therefore, she cannot complain about the alleged acts of oppression and mismanagement in the first respondent company. 11. Respondents pleaded that there is inordinate and unexplained delay of fifteen years on the part of the petitioner in questioning the transfer of 200 shares. According to the respondents, in view of the judgment dated 12.01.2001 of Hon ble IXth Upper District Judge, Indore, MP in Marriage Case No. 253 of 2000 petitioner has no claim over the movable and immovable properties of the first respondent company. Respondents allege that petitioner failed to produce original share certificate to show that the shares were purchased by her from her own funds. Respondents also pleaded that petition is barred by limitation. Respondents pleaded that the petitioner approached the Tribunal with uncleaned hands. According to the respondents, petitioner is not residing in Hyderabad and residing in New Delhi having married to Mr. Niranjan Maheshwari. Respondents denied the allegations that the authorised share capital was illegally and unauthorizedly increased and shares were allotted to respondent No. 6 illegally and unauthorizedly. According to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le this petition before this Tribunal. According to the petitioner her application for rectification was pending with the Registrar of Companies, MP for 290 days. 14. In the additional affidavit filed by the respondents it is pleaded that respondent No. 3 addressed letter dated 08.02.2013 to the Board of Directors of the first respondent company stating that 200 equity shares of ₹ 100/- each bearing certificate No. 09 and Distinctive Nos. 801 to 1000 were duly handed over to respondent No. 3 along with duly executed transfer deed which respondent No. 3 kept in her custody, however, due to old and ailing age and ongoing disturbance due to the separation of her son and daughter in law she could not either present the same to the company for transfer on time or preserve the transfer deed. Respondent No. 3 in her letter dated 08.02.2013 has also given indemnity for effecting the transfer of shares in her name. Along with additional affidavit, respondents filed resolution of the Board of Directors dated 15.03.2013 whereby it was resolved to transfer the shares of petitioner to respondent No. 3. 15. In response to the additional affidavit, petitioner filed further affidavit w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Tribunal - Ranchi Metal Ispat (P.) Ltd. v. Surjeet Singh [Company Appeal (AT) No. 31 of 2016, dated 20-2-2017] 06 National Company Law Appellate Tribunal Anup Kumar Aqarwal v. Crystal Thermotech Ltd. 140 SCL 573 (NCL - AT) 18. In the decision in Charanjit Khanna s case (supra) Hon ble Delhi High Court held in para 11 as follows: - In my opinion, it cannot be said as a proposition of law that no composite petition under Sections 397, 398 and 111A of the Act is ever maintainable. In fact, in a large number of petitions filed under Sections 397 and/or 398 of the Act, the primary allegation of oppression and mismanagement is that the faction that is in control of the company has either intentionally reduced the rival faction to less than l/10th of the total number of members of the company or removed the rival faction from the register of members. In such cases where allegation of oppression and mismanagement is inexplicably intertwined with the issue of maintainability of the petition under Section 399 of the Act, a composite petition has to be held as maintainable. To ask a petitioner to file two separate petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute, and he has to seek relief under Section 155 for getting his name placed on the register of members to clothe himself with the rights of a member, it would be improper, till that dispute is decided, to permit such a person to maintain a petition under Section 397/398 23. Hon ble National Company Law Appellate Tribunal in the case of Ranchi Metal Ispat (P.) Ltd. s case (supra) held that the crucial date for determination of requirements under Section 399 will be the alleged date of oppression and mismanagement in bringing down the shareholding below l/10th of the total shareholding of the company took place. 24. Hon ble National Company Law Appellate Tribunal in Company Appeal (AT) No. 17 of 2016 in the case of Anup Kumar Agarwal (supra) also took the same view distinguishing the decision of Hon ble Supreme Court in Bhagwati Developers (P.) Ltd. and Rajamundrly Electric Supply Corporation Ltd. 25. The grievance of the petitioner in this case is that her 200 shares in the first respondent company have been illegally transferred on 15.03.2013 although she has not signed any share transfer form. Petitioner further allege that respondents might have forged her si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided elsewhere a period of three years is provided. Period of limitation starts running from the date on which the right to apply accrues. 30. Article 113 of the Limitation Act, 1963 says that for any suit for which no period of limitation is provided elsewhere in this schedule, the period of limitation is three years and the period of limitation starts running when the right to sue accrues. Therefore, taking this composite petition either as an appeal, application or suit or as a petition, period of limitation is three years both under Article 113 and Article 137 of the Limitation Act, 1963. Period of limitation commences when the right to sue or right to apply accrues. 31. In view of the above discussions it can only be held that period of limitation for filing this composite petition under section 59 of the Companies Act and section 241 and 242 of the Companies Act, 2013 is three years and it starts running when the right to file the petition accrues. Therefore, crucial aspect in this case is when the right to sue apply accrues for the petitioner. The first and foremost contention of the petitioner is that she had no knowledge of the transfer of her shares till 10.02.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of Members of the first respondent company. Letter dated 12.01.2016 addressed by the petitioner to ROC and letter dated 24.08.2015 addressed by the petitioner to the Board of Directors of the first respondent company disclose that for the first time only on 24.08.2015 she asked the first respondent company for share certificate of her 200 equity shares of the first respondent company. It is already held that by 22.10.2013 petitioner has got knowledge of the transfer of shares. When such is the case it is not known what prevented the petitioner from claiming her shares or from questioning the transfer of her shares till she filed this petition. Even on 24.08.2015 the petitioner did not choose to mention that her shares were transferred illegally. On the other hand, she requested the company to provide share certificates to her. Therefore, what is pending before ROC is a request made by the petitioner to order investigation against the first respondent company. ROC by his letter dated 04.02.2016 forwarded the complaint of the petitioner dated 12.01.2016 to the first respondent company. Petitioner in her letter dated 19.07.2016 for the first time requested ROC to restore her share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 14 should be a civil court . Any authority or Tribunal having the trappings of a court would be a court within the meaning of this Article. In that case Dy. Commissioner of Labour who deals with appeals under Section 41(2), Tamil Nadu Shops, and Establishment Act, 1947 is held to be a court within the meaning of Section 14 of the Limitation Act, 1963. Nowhere in the Companies Act it is said that ROC is an adjudicating authority in respect of transfer of shares. Therefore, ROC acting under the Companies Act as a regulating authority cannot be equated with that of Dy. Commissioner of Labour who deals with appeals filed under Section 41 (2) of Tamil Nadu Shops and Establishment Act, 1947. Therefore, decision of Hon ble Supreme Court is not applicable to the facts of this case. ROC cannot be treated as a court within the meaning of Article 14 of the Limitation Act, 1963. 39. Another decision relied upon by learned council for the petitioner on this aspect is of Shripal Jain v. Torrent Pharmacenticals Ltd. [1995] Supp (4) SCC 590. In that decision, Hon ble Supreme Court gave direction to the Registrar of Companies to hold an inquiry under Section 84(4) of the Compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osite petition. 43. Learned counsel appearing for the petitioner relying upon the decision in G. Ramegowda, Major Baravalingappa v. Special Land Acquisition Officer AIR 1988 SC 897 contended that the petitioner cannot be deprived of the reliefs on technicalities and barely on the ground of delay. 44. A reading of the aforesaid judgement clearly goes to show that there was a delay on the part of the Land Acquisition Officer in preparing the appeals before High Court and Hon ble High Court in application under Section 5 of the Act condoned the delay. As against the said order of Hon ble High Court of Karnataka claimants preferred civil appeals before Supreme Court of India. 45. What was considered by Supreme Court of India in the aforesaid decision is whether the delay on the part of the Government officials in preparing the appeals can be attributed to the state and thereby suffer the public interest. Supreme Court of India held that if the appeals brought by Government are lost for such defaults, no person is individually affected, but what, in ultimate analysis, suffers is public interest. Hon ble Supreme Court also further held that implicit in the very nature of Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rced. - 48. It is the case of respondent that soon after granting of decree of divorce, petitioner handed over the share certificate along with duly signed transfer form to her husband and, thereafter, those shares were transferred in the name of 3rd respondent on 15.03.2013. Here we are not going to discuss and decide the validity of the transfer of shares or the manner in which the transfer of shares took place and whether the provisions of Section 108 of the Companies Act has been followed or not. Here the question is only on the aspect of the delay on the part of the petitioner and the conduct of the petitioner in not even asking the share certificates till 24.08.2015, on which date for the first time the petitioner asked Directors of the Company to give her share certificates. The delay of nearly fifteen years in not raising any issue in respect of her shareholding in the first respondent company goes to show that the petitioner abandoned her shares in the first respondent company, since the petitioner and her husband entered into MOU at the time of taking divorce. The petitioner, for the first time asking for share certificate on 24.08.2015 goes to show that she did not ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that Section 59 of the Companies Act provides jurisdiction to this Tribunal to pass an order of rectification in case where the name of any person after having been entered in the register is without sufficient cause omitted from the register. 50. There is no dispute that, under Section 59 of the Companies Act, 2013 this Tribunal can order rectification of register of members in case name of a member is removed from the Register of Members without sufficient cause. In the case on hand, according to the respondents, name of the petitioner is removed from the register of members on the basis of transfer deed executed by the petitioner. The plea of the petitioner is that the transfer deeds are forged documents. Now the question is that whether the plea of forgery can be gone into by the Tribunal or the parties have to be relegated to Civil Court. On this aspect learned council appearing for the respondents relied upon the judgement of Hon ble Supreme Court in Ammonia Supplies Corpn. (P.) Ltd. v. Modern Plastic Containers (P.) Ltd. [1998] 17 SCL 463. In that judgment Hon ble Supreme Court held that when the dispute relates to the peripheral field of rectification, then th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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