TMI Blog2016 (12) TMI 1808X X X X Extracts X X X X X X X X Extracts X X X X ..... nd has not reached finality, therefore, no right appears to have been vested in the appellant in order to attract the mischief of affecting vested right, if there be any. Application dismissed. - ACO No.91 of 2016, APO No.222 of 2016 - - - Dated:- 16-12-2016 - JUSTICE SOUMEN SEN For the Petitioner : Mr. Jishnu Saha, Sr. Adv., Mr. Sanjib Kumar Mal, Adv., Mr. Dibanath Dey, Adv. For the Respondent : Mr. Ratnanko Banerjee, Sr. Adv., Mr. Rudraman Bhattacharya, Adv., Ms. Sreya Basu Mallick, Adv., Mr. Souma Sil, Adv., JUDGEMENT Soumen Sen, J.:- The short point arises in this appeal is whether the Company Law Board lacked authority in receiving the petition under Section 58 of the Companies Act, 2013 beyond the period prescribed in sub-section 4 thereof. The facts limited to the aforesaid issue are summarized below. Rohinten Daddy Mazda became the owner of 20 shares of the appellant Company by a grant of probate on 30th November, 1990. The petitioner on 1st March, 2013 applied to the company for transfer of 20 shares. On 30th April, 2013 the Company refused transmission of the said shares. The respondent issued a legal notice on 18th July, 2013 threate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al to register the transfer/transmission of shares and for rectification of register under Section 58 of the Companies Act, 2013 and also for enlargement of time. This prayer was opposed on behalf of the company appellant on the ground that Section 5 of the Limitation Act does not apply to quasi-judicial bodies of Tribunal which include the Company Law Board. It is submitted that it would be clear from Section 5 of the Limitation Act, 1963 that the said provision would apply to the Court , not Quasi-Judicial authorities or Tribunals unless such Tribunals and the authorities are vested with the power of enlargement of time. Mr. Jishnu Saha, the learned Senior Counsel appearing on behalf of the petitioner although does not dispute that by operation of law, the petitioner would become the beneficial owner of the shares by reason of the grant of probate but raised serious objections with regard to the enforcement of such right by the petitioner on the basis of the probate after a delay of 249 days. It is submitted that the statutory period to apply for transmission of shares and for rectification of register is to be filed within a period of 30 days from the date of recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of 2015, APO No.448 of 2015 dated 15th October, 2015. It is submitted that similar issue was raised and answered by the learned Single Judge against the appellant and in favour of the respondent to the said appeal by holding that the principles contained in the Limitation Act, 1963 would be applicable to matters before the Company Law Board. The learned Senior Counsel has also referred to a fairly recent decision of the Hon ble Supreme Court in M.P. Steel Corporation Vs. Commissioner of Central Excise reported at (2015) 7 SCC 58 for the proposition that the principles of Limitation Act would be applicable to a proceeding before the CLB. It is further submitted that in view of Section 433 of the Companies Act, 2013, the said argument has now become merely academic as the provisions of the Limitation Act is now specifically applicable to a proceeding before the tribunal and the appellate tribunal. Mr. Banerjee has referred to a gazette notification dated 1st June, 2016 which shows that the said provision has come into operation on and from 1st June, 2016. It is submitted that since this Court is exercising an appellate jurisdiction and the appeal is a continuation of the orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urities within a period of thirty days from the date on which the instrument of transfer or the intimation of transmission, as the case may be, is delivered to the company, the transferee may, within a period of sixty days of such refusal or where no intimation has been received from the company, within ninety days of the delivery of the instrument of transfer or intimation of transmission, appeal to the Tribunal. (2) The transferor or transferee, or the persons who gave intimation of the transmission by operation of law, as the case may be, may appeal to the [Tribunal] against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same. (3) An appeal under sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the receipt of notice of refusal or where no notice has been sent by the company within four months from the date of which the instrument of transfer or the intimation of the transmission, as the case may be, was delivered to the company, there is no period of limitation prescribed for the purpose of exercising power by the Tribunal under Section 111A(2) of the Companies Act, 1956. The said Section 111A having been specifically deleted the power of the CLB now Tribunal to accept the petition after two months is not curtailed. Mr. Banerjee submits that since the appeal is a continuation of the original proceeding, the appellate court may take into consideration Section 433 of the Companies Act, 2013 and condone the delay in filing the proceeding. It is submitted that the challenge to the order of the Company Law Board has now become academic in view of Section 433 of the Companies Act, 2013. In reply, Mr. Jishnu Saha, the learned Senior Counsel has submitted that the original proceeding prescribed a period of limitation and at the relevant time the CLB did not have the power to extend the time as the provisions of the Limitation Act, 1963 was not made applicable to CLB. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. However, this has nothing to do with civil proceedings referred to in Section 14 of the Limitation Act, 1963 which may be filed before other courts or authorities which ultimately do not answer the case before them on merits but throw the case out on some technical ground. Obviously, the word court in Section 14 of the Limitation Act, 1963 takes its colour from the proceeding words civil proceedings . Civil proceedings are of many kinds and hues and need not be confined to suits, appeals or applications which are made only in courts strict sensu. This is made even more clear by the explicit language of Section 14 of the Limitation Act, 1963 by which a civil proceeding can even be a revision which may be to a quasi-judicial tribunal under a particular statute. The three decisions of the Company Law Board relied upon by Mr. Saha does not appear to have taken into consideration the decision of the Hon ble Supreme Court in Canara Bank Vs. Nuclear Power Corporation of India Ltd. Ors. reported at 1995 (84) Comp Cas 70; 1995(Sup3) SCC 81 and a Division Bench Judgement of the Hon ble High Court in Smt. Nupur Mitra Anr. Vs. Basubani Pvt. Ltd. Ors. reported at 1999 (2) CLT 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of a specific provision covering applications under Section 111, the residuary article namely Article 137 would apply. If the cause of action arose in 1996 as claimed by the appellants, the application under Section 111 having been filed in 1998 would be within time. In Canara Bank (supra) in Paragraph 81, the Hon ble Supreme Court, inter alia, held that the Company Law Board has the power in question relating to the title of any person who is a party before it to have his name entered upon the Companies name register and in view of record it as exclusive civil jurisdiction, the observations of the Hon ble Supreme Court in Paragraph 81 reads:- 81. Now, under Section 111 of Companies Act as amended with effect from 31.5.1991, the CLB performs the functions that were therefore performed by courts of civil judicature under section 155. It is empowered to make orders directing rectification of company s register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company s register; and any question which it is necessary or expedie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the legislature to extend the benefit of such amendment to a tenant in the pending proceeding was manifest. The manifest intention with which Mr. Saha seeks to support the observation of the Hon ble Supreme Court in Lakshminarayan Guin (supra) equally applies in the instant case as failure to apply such principle may cause manifest injustice and miscarriage of justice since by operation of law the petitioner is entitled to have his name recorded in the share register and the refusal to register the share in the name of the petitioner is patently illegal. A Division Bench judgment of this Court in M/s. Ceean International Private Limited Vs. Ashok Surana Anr. reported at (2003) 2 CLT 322 (HC) after considering the case laws on this point has concluded:- 9.2. An appeal is a continuation of a proceeding. It is a settled proposition of law (Vijay Nath v. Damodar Das, AIR 1971 All 109). It is a continuation of the proceeding of the original Court and is in the nature of rehearing (Damodar Mukherjee and Ors. v. Bonwarilal Agarwalla and Ors., AIR 1960 Cal 469; Dayawati v. Inderjit, AIR 1966 SC 1423). Therefore, at the time of hearing of the appeal, all rights available to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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