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TMI Blog2022 (1) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner are as follows: 2.1 The Petitioner by profession is an Eye Surgeon (Ophthalmologist) working at Avhienta Hospital and Health Centre, Bangalore and being aggrieved with the unwarranted activities of the Respondents No. 2 and 3, the Petitioner by challenging the inaction of the illegality etc. has filed an application under section 59 of the Companies Act, 2013 before this Hon'ble Tribunal. However, in filing that application, certain inordinate delay of 3,696 days has been caused, which detailed explanations have been narrated. 2.2 The Petitioner earlier was holding 2,26,500 numbers of equity shares in "Rahman Properties Ltd.", but the Petitioner did never take any participation in the affairs of Rahman Properties Ltd. because of the fact that the business was lying with the family members and it was looked after by Adilur Rahman (since deceased), the brother of the Petitioner. Besides that, the Petitioner being a Doctor by profession is engaged with Avhienta Hospital and Health Centre at Bangalore since long time, so it was not feasible for her to take active part in the affairs of the "Rahman Properties Ltd." at Guwahati. As such, the Petitioner always relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into various litigations with the present Respondents in regard to the forgery of signature and also for claiming rights over the Rahman Properties Ltd. The other side equally also filed various litigations against the present Petitioner and other family members. During the litigation stages and even after on numerous occasions, it was attempted to resolve the family property disputes amicably and in this course, sufficient time consumed for settlement of the entire matter. However, the litigations were also parallely running before different courts of law. In this entire process, more than five years have elapsed with a hope that instead of making a battle field inside the family, the matter ought to have been resolved amicably. But during this period of five years the said issues could not show any positive result. 2.7 The Petitioner since adhered to family peace, hence the Petitioner and other family members again and again requested the Respondent No. 2 specifically to come forward with a proposal of entire issue permanently. But, the said Respondent No. 2 on changing conditions of settlement, consumed sufficient time and in this course, the Petitioner also kept herself away f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Hon'ble Gauhati High Court in Crl. Ptn. No. 303/2015. In this course and thereafter also, the earlier engaged Counsel never advised the Petitioner about the relief etc., possible to achieve through this Hon'ble Tribunal by way of filing appropriate application under the Company Law. Hence, the Petitioner, due to lack of proper legal advice, was deprived from filing appropriate application before this Hon'ble Tribunal at proper time. This procedure was only advised by the newly engaged Counsel just in the month of December, 2020, when he was newly engaged in various pending cases in respect of the Petitioner and other family members. Therefore, on this ground also a long period of delay has been caused to approach before this Hon'ble Tribunal at appropriate time. 3.3 After collection of all documents and other preparation, it was only possible to prepare the final case in the month of January, 2021 and has been filed before this Tribunal on 04.02.2021. It is stated that the date of last removal of the name of the Petitioner from the list of shareholders at first instances on 07.01.2012 till the date of filing the Petition before this Tribunal under Section 59 of the Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purported Director and that only Adilur Rahman managed the operations of the R1 Company till his demise. 6.2 The Respondents specifically denied that the Petitioner is holding any shares in the R1 Company. The Petitioner has transferred her shares in the R1 Company during the life time of her husband of the R2, Late Adilur Rahman, brother of the Petitioner for which the Petitioner has been paid more than Rs. 1,58,04,000.00 (Rupees One Crore Fifty-Eight Lacs Four thousand) only as reflected from the records available with the Respondents. Rs. 1,32,04,000.00 (Rupees One Crore Thirty-Two Lacs Four thousand) only appears to be paid through three companies i.e. M/s. Rahman Properties Ltd., M/s. Tezalpatty Tea Pvt. Ltd. and M/s. Mohijuli Tea Company Pvt. Ltd. as reflected by a document signed by Late Adilur Rahman and through three cash vouchers. It is further stated that the Petitioner swung into action and hatched a conspiracy after the husband of the R2 Late Adilur Rahman died on 13.11.2012. 6.3 The Respondents crave leave of this Hon'ble Tribunal to refer to two other documents to expose the design of the Petitioner exacerbated by her and referred to an Affidavit of the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the Respondent No. 1 - Rahman Properties Ltd. is not tenable in the eyes of Companies Act, 2013. The cardinal requirement of law - i.e. the Board of Directors' Resolution as envisages under the Companies Act, 2013 is found missing here. Hence, the Reply Affidavit filed by the Respondent is liable to be rejected in limine. Further, it is stated that the contents made in the Reply Affidavit are without any iota of proof and the same are denied by the Petitioner. 7.2 The claim in respect of the payment made to the Petitioner is a matter of dispute and it is denied that the Respondents No. 2 and 3 are the owners of the two tea gardens under reference. The issue of Deed of Agreement dated 08.03.2007 is also in dispute and a Civil Litigation is already pending before the Court of Law at Guwahati. Further, the repeated attempts to raise allegations in different manners against the Petitioner seems to be baseless and needs strict proof thereof. 7.3 The contentions of payment of Rs. 1,59,04,000.00 to the Petitioner is denied and needs strict documentary proof and the issue of Family Settlement initiated prior to this litigation is a gospel truth and the same is evident from the draf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansfer of shares and forgery committed by the respondent No. 2, the earlier Ld. engaged Counsel advised the petitioner to agitate the issue only in a way of criminal side and hence, solely relying on his legal advice, the Complaint Case No. 2040/2015 was filed by the petitioner before the Court of Special Judicial Magistrate, Kamrup (M) at Guwahati and thereafter, the said case was stayed by the Hon'ble Gauhati High Court in Crl. Petn. No. 303/2015 and these proceeding are pending at present before court of law. Hence the petitioner, due to lack of proper legal advice, was deprived from filing appropriate application before this Hon'ble forum in proper time. 8.6 It was the consistent view taken by the Hon'ble Supreme Court in various decisions that "sufficient cause" appearing in Limitation Act should be liberally considered and the Court of law should be slow in shutting the door of justice to a litigant on the score of limitation. When the reason for the delay is properly explained, the matter needs to be adjudicated on merit. 9. It is submitted further by the Respondents that: 9.1 The Petitioner admits herself that the Petition is barred by limitation hence the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt ruled that A three-fold test was laid down for the determination of 'sufficient cause' in case the wrong advice is given by the legal practitioner. 9.8 The Petitioner has not withdrawn any of the cases mentioned by her in her Petition and as such the contentions are completely false and misleading. It may further be noted that Section 430 of the Companies Act, 2013 barred the jurisdiction of any civil court and this is not something which may be misinterpreted by any lawyer whosoever he/she may be. 9.9 Hence both the Petition and the IA impugned filed by the Petitioner are devoid of any merit whatsoever and as such liable to be rejected in limine. ORDER 10. Heard both the sides at length and perused the Affidavit replies filed and documents submitted by the Petitioner and the Respondents. Considering the arguments advanced by the counsels of both the parties, papers/ documents made available before this Bench, We are of the considered view that the causes for delay in filing the Application as mentioned by the Applicant, such as continuation of negotiations/further negotiations with the Respondents for seven years, writing letters to the Respondents, ill health, ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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