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TMI Blog2019 (12) TMI 1428X X X X Extracts X X X X X X X X Extracts X X X X ..... s also sought to set aside the transfer of 75,000 equity shares of Rs. 100/- each to the Respondent No.2 which was illegally transferred on 4.4.2011. 3. According to the applicant, she made a payment of Rs. 1.50 crores vide cheque No.952451 dated 23.8.2010 drawn on South Indian Bank. The Respondents after infusion of funds into the 1st Respondent Company by the applicant altered the equity share capital of the Company by dividing into equity and preference share capital in an EGM allegedly held on 25.8.2010 and subsequently allotted on 7.9.2010 to the applicant, 75,000 equity shares of Rs. 100/- each and 75,000 above said preference shares of Rs. 100/- each against Rs. 1.5 crores infused into the 1st Respondent Company. It is this allotment of preference shares the applicant has challenged in the main petition. 4. The case of the Applicant is that the Respondents No.2 and 3 not brought in any money towards the shares subscribed by and allotment of shares made to them. During the financial year 2010-11, on 7.9.2010, according to the Respondents, the Respondents allotted 1,78,000 equity shares of Rs. 100/- each at par to 4 persons which included allotment of 75,000 equity shares to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 has also quoted Section 433 of the Companies Act, 2013 to substantiate his plea that the IA as well as Company petition is barred by limitation. 8. Therefore, the Senior counsel for the Respondents claimed that this Interlocutory Application arisen out of TCP/20/KOB/2019 is hopelessly time barred, hence praying for dismissal of the same. 9. Similarly, the learned counsel for the Applicant/Petitioner has relied upon the Judgement dated 9.2.2010 by the Hon'ble High Court of Madras in CMA(NPD) No.2304 of 2004 to substantiate his arguments that the IA as well as Company Petition is within the limitation. 10. I have heard learned counsel for the petitioner as well as learned senior counsel for the respondents. I have also thoroughly perused all case records as well as case laws cited by both parties. 11. The arguments put forward by the learned counsel for the petitioner is that the applicant/petitioner while working as a TV Anchor in Jeevan TV news channel decided to start her own news channel and expressed her interest to the 2nd respondent. The 2nd respondent conveyed his interest and informed the applicant that it would cost a total of Rs. 8 crores. The 2nd Respondent also exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and FIR No. Crime No.235/2016 was registered by Thodupuzha Police Station, Kerala against the 2nd and 3rd respondents. The 2nd respondent moved before the Hon'ble High Court of Kerala by filing Crl.M.C.No.1890/2016 for quashing the FIR which appeal was dismissed by the Hon'ble Court vide order dated 21.12.2016. Further the 2nd Respondent challenged the order of the Hon'ble High Court before the Hon'ble Supreme Court and the Hon'ble Supreme Court vide its order dated 25.4.2018 dismissed the Special Leave Petition filed by the 2nd respondent. In the SLP(Crl) No.2898 of 2017 filed by the 2nd Respondent before the Hon'ble Supreme Court, the Police Chief, Idukki, State of Kerala filed Counter and stated that the Investigation so far conducted revealed commission of offences punishable under section 120(B),406,420, 465,467,468, 471,34 IPC. 15. I observe that the proceeding under CrI M.A No.235/2016 on the files of Chief Judicial Magistrate Court, Thodupuzha against the respondents is stayed temporarily by the Hon'ble High Court of Kerala vide order dated 20th September 2019 in view of the Company Petition pending before this Bench. 16. Documents reveal that on 07.2.2019, after heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent moved before the Hon'ble High Court of Kerala by filing Crl.M.C.No.1890/2016 for quashing the FIR which appeal was dismissed by the Hon'ble Court vide order dated 21.12.2016. Further the 2nd Respondent challenged the order of the Hon'ble High Court before the Hon'ble Supreme Court and the Hon'ble Supreme Court vide its order dated 25.4.2018 dismissed the Special Leave Petition filed by the 2nd respondent. In the SLP(Crl) No.2898 of 2017 filed by the 2nd Respondent before the Hon'ble Supreme Court, the Police Chief, Idukki, State of Kerala filed Counter and stated that the Investigation so far conducted revealed commission of offences punishable under section 120(B), 406, 420, 465, 467, 468, 471, 34 IPC. 21. Keeping all the above circumstances into consideration, it appears that facts and law are involved in this case. The law laid down under the Companies Act, 2013 by enactment of Section 433 under the title "Limitation", which read as follows: "433. The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be apply to proceedings or appeals before the Tribunal or the Appellate Tribunal as the case may be". 22. The phrase emphasized "as the case may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppression or the conduct of the affairs of the company in a manner prejudicial to the public interest has to be continuous and shall have persisted up to the date of the filing of the petition under S. 397 and/or 398 of the Act. If the state of affairs existing on the petition is the main criterion for invoking the jurisdiction under Section 397 and 398 and the oppression complained of, or the conduct of the affairs complained of, should be existent on the date of the petition as in the case of a continuing wrong and the relief asked for is only with a view to put an end the matters complained of, we are unable to see how any question of limitation could arise at all". 26. It appears from record that according to the Investigating Officer (Police Chief, Idukki, State of Kerala), the alleged offences of Respondents 2 and 3 are punishable under section 120(B), 406, 420, 465, 467, 468, 471, 34 IPC. The same issues are involved in this Company Petition / Interlocutory Application also. It is relevant to note that the Hon'ble High Court of Kerala dismissed the appeal and the Hon'ble Supreme Court has also dismissed the SLP filed by the Respondent No.2 with regard to the Criminal Invest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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