TMI Blog2021 (12) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... e caused to anyone if the impleadment application is allowed - Application is thus allowed. - C.A. No. 77/KB/2021 in T.P. No. 445/KB/2019 - - - Dated:- 25-11-2021 - Rajasekhar V.K., Member (J) And Harish Chander Suri, Member (T) For the Appellant : Ratnanko Banerji, Senior Advocate, Swapna Choubey, Kanishk Kejriwal and Gautam Kumar Ray, Advocates For the Respondents : Sudipto Sarkar, S.N. Mookherjee, Joy Saha, Senior Advocates, Roopa Sheth Mitra, D.N. Sharma, Soumitra Datta, Shaunak Mitra, Arunabha Deb, Subhojit Saha, Yash Vardhan Deora, Domingo Gomes and Natasha Roy, Advocates ORDER Rajasekhar V.K., Member (J) 1. This court convened through video conferencing. 2. The C.A. No. 77/KB/2021 has been filed by Athindra Nath Banerjee, the Petitioner No. 3 in T.P. No. 455/KB/2019, praying for substitution of Respondent No. 4, Late Provat Kumar Mitra with his legal heirs, Mr. Shantanu Mitra and Ms. Sharmistha Musgrave as Respondents No. 4A and 4B. 3. Mr. Ratnanko Banerji, learned Senior Counsel for the petitioners submitted that: a. the Applicant was informed that the Respondent No. 4, Late Provot Kumar Mitra left for his heavenly abode leaving behind hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication filed after 2011. This is a proxy litigation that is being carried on. The Respondent No. 4 had been appearing through his duly constituted attorney. Hence, the question arises, as to whether the legal heirs of somebody against whom no prayers have been sought, be brought on record? Respondent No. 4 never really had anything to oppose. Even till this date, the Petitioners have not alleged anything against Respondent No. 4. d. The Company has no business It is submitted that since 2000, there has been no business of the company. If so, the allegation of oppression and mismanagement cannot now survive. Mr. Joy Saha wondered as to what charge are the legal heirs of Respondent No. 4 going to answer at this stage. The allegations of oppression and mismanagement must necessarily be confined to the acts which took place in the year 2011-2012. For this, the legal heirs of Respondent No. 4 cannot possibly answer. e. Respondent No. 1 Company is now struck off The Respondent No. 1 company has been struck off from the register of companies for a very long time. f. There is no authority on record to represent the daughter of Respondent No. 4, Sharmistha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CLT Rules contemplates an application to be made by the legal representatives. It is further submitted that for a party to be added in terms of rule 53(1) of the NCLT Rules, it must be demonstrated to the satisfaction of the court that the legal heirs of the deceased have to answer some charge. The discretion must be applied only if the court feels that the legal heirs must be added as a party to answer something alleged in the petition. It cannot be automatic. j. Mr. Joy Saha further submitted that the rule 53(1) and rule 53(2) of the NCLT Rules are independent of each other. 5. Mr. Arindam Banerjee, learned Counsel appearing on behalf of Respondents No. 16 and 17 adopted the arguments of Mr. Joy Saha, learned Senior Counsel appearing for Respondents No. 13 to 14. In addition to the above, he made the following submissions: a. Order 22 Rule 1 sub-rule 1 of the CPC states where one or two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cles. The articles require prior consent of the directors for transfer. The directors were family members only. This is a classic case of a family company. It was the desire of the person who set up the company that it remained a family company. c. the prayer made in the main petition relates to a scheme being framed with respect to the management of the Company. The prayer concerns all these persons who possess an indefeasible right to the shares of the Company. There are 7100 equity shares and 2000 preference shares of the Company. d. among the children of B.K. Mitra and S.L. Mitra, the Respondent No. 4 held the highest single block of shareholding, which was undisputed. e. the equity shares were pledged with IIBI to avail loans and the shares of the Respondent No. 4 were also pledged for availing loan. f. since the loans have been repaid, the shares should have been returned to the legal heirs. If the shares of B.K. Mitra and S.L. Mitra were divided equally among the five branches, Respondent No. 4 would become one of the single largest shareholders. Hence, in view of the prayer made in the main petition and the indefeasible right to the largest block of shar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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