9911796707
TMI Blog2025 (4) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... member of the Company holding 100 shares of the Company having face value of Rs. 100/- each along with shares issued during corporate actions since 2015, if any; and/or iii. That this Hon'ble Tribunal may be pleased to II pass such other and further reliefs in the interest of justice as this Hon'ble Tribunal may deem fit; and/or iv. That this Hon'ble Tribunal may provide costs for preferring this appeal. 3. The facts of case are narrated as under:- 3.1 The appellant submits that the appellant is the shareholder of Flowchem Engineering Private Limited. The appellant states that it holds 100 equity shares having face value of Rs. 100/- each translating to ~2% share of equity in the Company. The authorized and paid up capital of the Company consists of 5,000 shares with face value of Rs. 100/- each. 3.2 The appellant states that Mr. Himanshu Bhatt, the appellant's real brother, was the subscriber to the Memorandum of the Company alongwith one Mr. Dinesh D. Pathak. Both of them were in charge of running the Company ever since its inception in 1992. Owing to disputes between the parties sometime in 2010, Mr. Dinesh Pathak approached the Hon'ble Company Law Board at the time unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Company on 24.11.2020. 3.8 The appellant states that no response is forthcoming from the Company even as on date. 3.9 The appellant humbly submits that, despite submission of all requisite documents, the aforementioned action of non-transfer of shares in the name of the appellant, without any reasonable, justifiable and cogent grounds has caused the appellant to suffer irreparable loss and damages. 4. The Respondent appeared and filed its reply on 07.09.2021 vide inward dairy no. 1082021/2 and made the following statements:- i. At the outset, It is submitted that the Company Appeal as an abuse of the process of this Tribunal, not maintainable, clearly an afterthought and a deliberate attempt by the Appellant to cloud the issues and mislead the Tribunal and ought to be dismissed in limine for the following, amongst other, reasons each of which is in the alternative and without prejudice to the other: ii. That the Appeal is motivated and ridden with malafides. iii. That the Appellant suppressed various material facts from this Tribunal. iv. That the Appellant does not demonstrate any cause of action and is devoid of material particulars for invocation of the drastic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorised representative or the advocate and secondly, they should be duly verified from the originals. In the present case, the correctness of the copies of the documents are not verified from the originals and also accompanied documents with this appeal is not certified by the authorised representative or advocate. xi. It is relevant to mention here that, sub rule 2 of rule 26 of the National Company law Tribunal Rules, 2016, provide as under: "(2) Every Appeal or application shall be signed and verified by the party concerned in the manner provided by these rules." xii. As per the provisions of Rule 23, Rule 26 of the National Company law Tribunal Rules, 2016, clearly mandate all documents in support of the application to be duly 'verified' by way of an affidavit. In the present case, neither the documents have duly certified from the originals nor has been the correctness of the documents duly verified on affidavit, which also vitiates the entire application. xiii. In a Series of Judgements, the Hon'ble Supreme Court of India have held that for want of affidavit and verification in accordance with the law, the application is liable to be dismissed irrespective of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndly, this declaration appears to have been made before a notary public at Bombay on December 24, 1965. I shall now refer to the relevant rules for verification of petitions under the Companies (Court) rules, 1959 (hereinafter referred to as the Company Rules) and also under the rules of this Court Rule 21 of the Company Rules requires that every petition shall be verified by an affidavit made by the petitioner or in the case or a petition by a body corporate, by a director, secretary or other principal officer. Such an affidavit has to be made in Form No. 3 which provides that the affidavit shall be made on solemn affirmation. Therefore, an affidavit verifying a petition must be made on a solemn affirmation as prescribed by Form No. 3. Under Rule 18 (a) of the Company Rules the affidavit verifying the petition is to be signed by the deponent as verifying the petition is to be signed by the deponent and sworn to in the manner prescribed by the Code or by Rules and practice of the Court, under R. 5 of the Chapter XV of the Original Side Rules of this Court affidavit for use in any of the Jurisdiction of the may be taken in Calcutta or within five miles thereof Before a Commissioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Hon'Ble Bench Ahmedabad. In the matter of D. Laxminarayan Dora V/s Gandhidham Developers Private Limited & Ors. "No period of limitation is provided in Section 59 of the Companies Act,2013. But Section 433 of the Companies Act says that the provisions of the Limitation Act, 1963 shall, as far as may be, apply to proceedings of appeals before the Tribunal or the Appellate Tribunal, as the case may be. The Hon'ble Supreme Court, in the case Kerala State Electricity Board v/s T.P. Kunjali (1976) 4 SCC 634 SC 282, held that Article 137 of the Limitation Act, 1963 will apply to any Appeal or application under any act to a Civil Court. Therefore, Article 137 of the Limitation Act, 1963 is applicable to a Appeal filed under Section 59 of the Companies Act, 2013 before this Tribunal." Thus, it is clear that, the present Appeal is time barred. xvii. With respect to the contents of Paragraph No. IV of the Company Appeal, a. Clause a, b, e and d Paragraph No. IV of the Company Appeal, the same are formal and hence do not call for any reply. b. With respect to the clause e of Paragraph No. IV of the Company Appeal, the same are not true and hence denied. The share transfer has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant, to know about the illegal actions of the Respondent carried out in 2016 since neither the Respondent Company nor the purported new shareholders claim to have or have provided any proof that they informed the appellant about the share transfer having taken place only in 2016 based on a purported share transfer deed executed on 2.5.2009. The illegal actions of the Respondent Company only came to the knowledge of the appellant from various documents being provided in other disputes between the family members of Mr. Himanshu Bhatt and Mr. Vikram Bhatt iv. The appellant submits that even the purported share transfer deed executed on 2.5.2009 leaves a lot to be desired since the signature of the appellant on the memo of the appeal and in the transfer form is admittedly different. Further, whilst the Respondent accuses the appellant of not verifying the documents annexed alongwith the appeal, it has done the same with its own affidavit and that too for documents which are not available in the public domain which may be duly noted. v. The appellant further submits that if the appellant is estopped from raising the issues of the share transfer on the basis of limitation, then the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently withdrew his petition due to a settlement. iii. Following Mr. Dinesh Pathak's withdrawal, the shareholding should have been divided between the families of Mr. Himanshu Bhatt and Mr. Vikram Bhatt. However, the family of Mr. Vikram Bhatt allegedly usurped the shares belonging to the family of Mr. Himanshu Bhatt, including the Appellant. Within a year, the family of Mr. Vikram Bhatt acquired all 5,000 shares in the company, while the Appellant and other family members of Mr. Himanshu Bhatt lost their entire shareholding of 2,590 shares. iv. The Appellant issued a notice to the Respondent Company on 19.11.2020, which was delivered on 24.11.2020. The company failed to respond to this notice. In its reply, the Respondent Company claimed that the shares were transferred in 2016 based on a share transfer deed purportedly executed on 02.05.2009. The Appellant questioned the delay in utilizing this 2009 deed for the 2016 transfer. v. The Appellant was unaware of the 2016 share transfer until discovering it through documents related to other disputes within the family. Neither the Respondent Company nor the purported new shareholders informed the Appellant of this transaction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s about its authenticity. However, the Board's resolution dated 20.02.2016 (Annexure R-3) approving the transfer in 2016, coupled with the absence of timely objections, weakens the Appellant's case. 10. Both parties have also raised concerns about verification and affidavit compliance. While such deficiencies merit attention, they are not determinative of substantive rights. 11. The Appellant's argument of fraud lacks corroborative evidence. Shareholding details in the Annual Return for 2016 were publicly available, and no objections were raised within a reasonable time. 12. We are of the considered view that challenge to the share transfer through this Appeal filed by the Appellant is barred by the limitation in view of the orders of the of the Hon'ble Supreme Court and the order of the Hon'ble NCLAT as referred above the shares were transferred in the name of the Respondent on the basis of the share transfer deed dated 02.05.2009 on 20.02.1016. Any Appeal was to be filed for the Share Transfer under section 59 of the Companies Act, 2013 within the 3 years as per the Article 137 of the Limitation Act, 1963. Whereas the present Appeal is filed on 29.01.2021 which is beyond the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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