TMI Blog2019 (12) TMI 1357X X X X Extracts X X X X X X X X Extracts X X X X ..... ember ( J ) And Harish Chander Suri , Member ( T ) For the Appellant : Abhishek Gupta and Shaunak Mitra , Advocates For the Respondents : Jishnu Chawdhury , Rupak Ghosh , Nikhil Jhunjhunwala and Debrup Bhattacharjee , Advocates ORDER Harish Chander Suri , Member ( T ) 1. I.A. No. 1009/KB/2019 in CP No. 295/KB/2017: The Petitioners in C.P. No. 295/KB/2017 viz., Mr. Arvind Parasramka, M/s. Bhubnesh Commercial Private Limited M/s. Siemens Syntex Private Limited have filed this petition against Respondent Nos. 1 to 5 viz., M/s. Calcutta Investment Company Limited, M/s. Syndicate Holdings Pvt. Ltd., Mr. Subir Poddar (Executor to the Estate of Late Mr. Rajendra Poddar), Mr. Sushil Kumar Bagla M/s. Hanuman Tea Company Limited, seeking directions to the Respondent Company to register the transfer of their shares and make entries in the Register of members and register of share transferred and thereafter return the share certificates to the Petitioners with duly authenticated Memorandum of share transfer etc. 2. The Petitioners have filed along with the C.P. No. 295/KB/2017, an Interim Application under Rule 32 of the National Company Law Tribunal Rules, 2016 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No. 1 confirming the sale and stating that it had no objection in Respondent No. 1 transferring the shares in the name of Petitioner No. 1. 6. It is submitted that similarly, in November, 2014, Petitioner No. 2 purchased 1700 shares (3.09%) of Respondent No. 1 Company held by Respondent No. 3 along with share certificates, transfer deeds dated 9th January, 2015, bill and receipt of payment. Similarly, Petitioner No. 3 purchased 750 shares of Respondent No. 1 Company held by Respondent No. 4 along with share certificates, transfer deeds dated 9th January, 2015, bill and receipt of payment etc. Petitioner No. 3 further purchased 1050 shares of Respondent No. 1 Company on 14.11.2014 held by Respondent No. 5 and was handed over the share certificates, transfer deeds dated 9th January, 2015, bill and receipt of payment etc. 7. Petitioner No. 1 deposited 500 shares for transfer in his name on 16th July, 2012 followed by reminder letter dated 7th February, 2015. Petitioner No. 2 also deposited its 1700 shares for transfer of 9th January, 2015 and wrote a reminder on 7th February, 2015 to record the transfer of shares. Similarly, Petitioner No. 3 deposited its 1800 shares for tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns to respondent No. 1 Company to register all the transfer of shares in their respective names. With this background the present application for condonation of delay, if any, has been argued by the parties before this Bench to reach the conclusion whether the C.P. No. 295/KB/2017 can be considered and heard as being in time or not. 11. To support that, the Ld. Counsel for the Applicants has submitted that the request of transfer of shares was refused by Respondent No. 1 Company on 11th February, 2015 against which the C.P. No. 61 of 2015 was preferred as aforesaid and the same being a joint petition, was held not to be maintainable by the Hon'ble NCLAT vide order dated 6th October, 2016. On 19th April, 2017 the Petitioners preferred an appeal before Hon'ble NCLAT against order dated 6th October, 2016 which was allowed to be withdrawn with the observations that the question whether the Petitioners' name should be recorded as shareholders or not is required to be decided by the appropriate authority. It is submitted that the present petition was filed on 24th April, 2017 under Sections 58 59 of the Companies Act, 2013. 12. During the course of arguments, the Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of SBI vs. Kamlesh Kalidas Shah Ors. Reported in (2019) 212 Comp Cas 558), the delay of approximately 18 years in filing the petition under Section 58 was condoned. It was held that at the relevant time, Act of 1956, was in force and Section 111A, there was no prescription of limitation for filing an Appeal. It was held As a consequence, we are of the considered view that on this technical ground, especially when the matter related to the period when the provisions of Companies Act, 2013 were not applicable, it is unfair, unlawful and unjustifiable to throw this vigilant Petitioner out of the litigation at the very threshold without granting him an opportunity of hearing which otherwise is his one of the judicial rights. 17. It is further submitted that in the case of Property Company Limited vs. Rohinten Daddy Mazda reported in (2017) 200 CompCas 87 (Cal), it was recorded that it is a settled principle of law that principles of that the question of limitation should not be used to defeat the substantive right of transferee which accrues to it by operation of law as it may cause manifest injustice and miscarriage of justice since by operation of law the Petitioner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that this Tribunal has no power to condone the delay because Section 58 of the Companies Act contains an inbuilt time limit within which an application can be filed. It is submitted that the Limitation Act 1963 applies to Companies Act in view of Section 433 of the Companies Act. 21. It is submitted that Section 58 of the Companies Act mentions special period of limitation and does not permit condonation of delay, therefore, Section 5 of the Limitation Act does not apply to such proceedings. It is submitted that Section 59 of Companies Act has no manner of application to these proceedings. Therefore the application for condonation of delay is not maintainable. 22. It is submitted that as regards Petitioner No. 1, the shares had been purchased in 2012 but Petitioner No. 1 after submitting its request for transfer on 16th July, 2012 did not pursue the matter and the reminder was sent only on 7th February, 2015 that too by post which showed that Petitioner No. 1 was slow in pursuing its case for 3 years which is an unexplained delay. Similarly, Petitioner Nos. 2 3 purchased shares in 2014 but deposited the same for being recorded in their name after a period of around ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elay is filed and not when the appeal or proceeding is filed. Therefore, the explanation is necessary up to July, 2019 and since there is no explanation forthcoming, the application for condonation of delay should not be allowed as the Petitioners are not entitled to an order for condonation of delay due to the unexplained delay. 26. The Ld. Counsel for Respondent No. 1 submits that the Petitioners have sought to rely on the order dated 19th April, 2017 passed by Hon'ble NCLAT, for claiming that the said order has given the Petitioners liberty to file appropriate application before the appropriate forum for recording their name as shareholders. It is submitted that the Hon'ble NCLAT had given them only the liberty to withdraw their appeal and had not given any other liberty because the Petitioners had prayed before the Hon'ble NCLAT to withdraw the appeal as the appeal was barred by limitation and to file the same before an appropriate Authority. The Hon'ble NCLAT without going in to the merits of the matter allowed the Petitioners to withdraw the appeal as the appeal was barred by limitation. Thus there is no specific liberty was given by the Hon'ble NCLAT t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' for the delay in question, then an Appropriate Authority may condone the delay and admit the main matter for 'Hearing' on merits. One cannot brush aside a vital fact that in Law, a Lis' is to be decided on merits and no party should be non-suited harping on technicalities and also by adopting a pedantic approach. There is no two opinion of the fact that although 'Day-Today' explanation for 'Condonation of Delay' is not necessary, but 'Sufficiency of Reason' must exist. As a matter of fact, the term 'Sufficient Cause' is not defined in the 'Limitation Act, 1963', but the establishment of 'Sufficient Cause' is a condition precedent for exercising the discretion by the 'Competent Authority'. 28. The ratio decidendi of the aforesaid orders of the Hon'ble NCLAT forces us to take a holistic view of the case and allow the application for condonation of delay permitting the parties to argue their respective versions on merits. 29. With these directions, the I.A. No. 1009/KB/2019 is allowed and disposed of. 30. Let the matter be listed for hearing on the main petition C.P. No. 295/KB/2017 on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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