TMI Blog2017 (3) TMI 1583X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the matter, on facts and in law, it is noted that in the present case, the petition suffers from delay and latches. The delay and latches do apply which start from the date of knowledge. The doctrine of laches is based on equitable consideration and depends on general principles of justice and fair play. Thus petition has no merit and is liable on account of huge delay and laches and as also frivolous. It is dismissed accordingly. - C.P. No. 57/2015 - - - Dated:- 25-3-2017 - Manorama Kumari, For the Appellant/Petitioner/Plaintiff: K. Thakur and Suddhadev Adak, Advocates For the Respondents/Defendant: Siddhartha Murarka, Sandip Sarkar and Abhijit Nagee, P.C.Ss. ORDER Manorama Kumari, Member (J) 1. The petitioners have filed their Company petition by invoking the provisions contained in Section 111, 235, 398, 397, 402, 403, 406 and 407 of the Companies Act, 1956 (hereinafter referred to as the the Act in short) seeking directions to the effect that the petitioners are lawful owner of 35875 shares of ₹ 10/- each in the respondent No. 1, Company. 2. It is further prayed that an order be passed thereby directing the respondents to rectify the regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been further stated that on 28-03-2007 the petitioners had resigned from the Directorship as well as transferred their entire shareholding and for transfer of the said shares, the petitioners had received the consideration amount which is reflected by Annexure A Page No. 30 of the reply. 5. The respondent has produced the original resignation letter and receipt of payment against the transfer of shareholding containing the original signature of the petitioners to which the petitioners have also admitted. 6. The petitioner(s) have also produced the original share certificate. 7. I have heard the Ld. Counsels and the PCS appearing on behalf of the respective parties and perused the records. 8. Firstly, I would like to deal with the preliminary objection raised by the respondents disputing the maintainability of the petition and seeking its dismissal at the threshold stage without entering into the merit of the case on the ground that the petitioners have resigned from the Company on 28-03-2007 and have also transferred their share. 9. Responding to the above submission, the Advocate of the petitioner submitted that they have received back the amount which they have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the other hand, are challenging the sale of the shareholding, which they are not entitled to, under the law. (Photocopy of the cheque at page No. 31, 34, 36, 39 of the reply). 15. Before entering into the merit in detail, I would like to deal with the preliminary objection raised by the respondent(s) against the maintainability of the petition and seeking its dismissal at threshold stage without entering into the merit of the case on the ground that the petitioner does not hold requisite qualification in terms of Section 399(1)(a) as on the date of filing of the petition as they are not holding any share in the company and names are not appearing in the register of the Company. According to the PCS for the respondent(s), the petitioners have sold their entire shareholding sometime in the year 2007 as stated herein above and to that effect the petitioner(s) have executed acknowledgment dated 06-11-07 showing the receipt of amount by way of cheque against the transfer of equity shares (Photocopy of the same is annexed at Page No. 32, 35, 37, 38, 40 of the reply). 16. On the other side, Ld. Counsel appearing on behalf of the petitioner contended that they have never transferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r(s). 23. The respondent through its PCS submitted that the petitioner(s) have resigned from the Company and has also received then amount by way of cheque dated 08-11-2007 on transfer of shareholding, in support of which the respondent(s) produced the original resignation letter, receipt of payment duly signed by the petitioner(s) and also produced the transfer form containing the same signature as in the resignation letter. 24. Photocopy of the original is enclosed with the reply from page No. 30 to 42 of the reply). On the other hand, the petitioner(s) alleged and submitted that the documents as said above contained original signature but those were given in the blank papers. 25. The very contention of the petitioner(s), cannot be digested when they are claiming themselves to be the Director and shareholders of the Company. Moreover, in the prayer, the petitioner(s) sought for direction to declare that all the meetings which were held after 2005 as illegal, null and void, then till date why they are keeping silent. Thus, on their own admission of the petitioner(s) the cause of action arose in 2005, as per prayer made in clause No. (d) of the petition (Page 39 of the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3] 116 CLA 50 (CLB). In this case too the shares were transferred without complying with the provisions contained in section 108(1) of the Act and the issue came to be considered by the Company Law Board, Principal Bench, New Delhi. The board came to the conclusion that the non-compliance of section 108(1) of the Act was not a sufficient ground to set aside the transfer of shares. 32. Now, secondly, I proceed to deal with the issue of limitation/delay and laches raised by the respondent. 33. Dealing with the issue of limitation/delay and laches, and also considering the submission of PCS appearing on behalf of the respondent(s), the petition is time barred and hence is liable to be dismissed. 34. Elaborating the said plea, the Ld. PCS for the respondent(s) submitted that the impugned shares were transferred by the petitioner in the year 2007, whereas the instant petition is filed in the year 2015 i.e. after lapse of a period of 7 years. 35. On careful scrutiny of the record, it is found that, admittedly, cause of action arose in 2006 as per paragraph No. 6.20 and 6.21 of the petition and as per prayer(d) of the petition cause of action arose in the year 2005, but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall as far as may be, apply to proceeding or appeals before the Tribunal or the Appellate Tribunal as the case may be. 45. The article 113 which deals with the subject of suits for which there is no prescribed period of limitation. The aforesaid provision reads as follows: Part X - SUIT FOR WHICH THERE IS NO PRESCRFIBED PERIOD 46. Thus, where no period of limitation is provided, elsewhere in the schedule, article 113 is to apply, in such cases, the period of limitation provides three years from the date when the right to sue accrue. 47. A view may be taken that Limitation Act is not applicable on the ground of Section 433 of 2013 Companies Act, as has been enforced with effect from 01-06-2016 and the present petition was filed sometime in the year 2015. In other words, the period of limitation as prescribed under the Companies Act, 1956 is applicable. It may be seen that under Section 10 GE of the Companies Act, 1956, the provision of the Limitation Act have been made applicable only to appeal made to the Appellate Tribunal. The word 'applied to the proceeding' before the Tribunal were added only by Section 433 with effect from 01-06-2016. Even then, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anies Act, 1956 expressly provides that the Tribunal is empowered to pass any order which it consider just and equitable. Similar provision has been made by Section 403 of the Companies Act, 1956 vesting the Tribunal with the power to pass any interim order as it deem just and equitable. Similar provisions have now been made in Section 242(2) of 2013 Act. 51. Thus, the Tribunal while exercising the equitable jurisdiction in its proceeding under Section 397 and 398 of the Companies Act, 1956, cannot ignore the delay and latches on the part of the petitioner while filing the case. 52. The delay and latches do apply which start from the date of knowledge. Admittedly, the date of knowledge is 2005-2006, as reflected from the petition. The doctrine of latches is based on equitable consideration and depends on general principles of justice and fair play. 53. There is no presumption that delay is deliberate. To be the laches, delay should be such that it could be said that the petitioner is not entitled to get relief on account of gross negligence or inaction or for want of bona fide, imputable to him or that he has given up (waived) his right by acquiescence or by his conduct or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rves to be dismissed. 58. In support of my view, I would like to refer few decision as follows: (a) In case of Ramjash Foundation Vs. Union of India (2010) 14 SSC. 38, it is held as follows : (Page 51): The principle that a person who does not come to the Court with clean hands, is not entitled to be heard on the merit of his grievances, in any case, such person is not entitled to any relief, is applicable not only to the petitions filed under Article 32, 226 and 136 of the Constitution but also in the cases instituted in other Courts and judicial forums. The object underlying the principle is that, every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making mis-statement of by suppressing facts which have bearing on adjudication of the issue issues) arising in the case. 59. While exercising the equitable jurisdiction in this proceeding, under Section 397 and 398 of the Companies Act, 1956, the mere proof of this allegation will not entitle the petitioner to get the relief sought for when these reliefs are discr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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