Vimla Yadav, Member - (1.) THE Company Application No. 147 of 2012 and 148 of 2012 are being disposed of by this Common order as Petitioner in. CP No. 7/2012 and 8/2012 is the same and the facts of the Case in these two petitions are almost similar, the applications have same prayers, the representatives are the same and have adopted the arguments in one Application for the other. The Applicant in CA No. 147/2012 AUDUTH MODU TIMBO (THE ORIGINAL R -3) has opposed the present Company Petition Nos. 7/2012 & 8/2012 on the limited and preliminary ground that the Petitions are barred by the law of limitation, and, even otherwise, in any case, are not maintainable on the ground of delay and laches. The Applicant is R -3 in Company Petition and is also one of the shareholders of the Respondent Company (Sociedade de Fomento Industrial Pvt. Ltd. & Hardesh Ores Pvt. Ltd.). In CP No. 7/2012 the Petitioner has sought rectification of the Register of Members under section 111 of the Companies Act, 1956, (hereinafter referred to as 'the Act') in respect of 10,000 shares, belonging to Late Modu Timblo which were transmitted to the Applicant and Dilip M. Timblo, 3 and 4. Further, these shares of R -3 & R -4 were transferred to the Applicant. In Company Petition No. 8/2012 the Petitioner has sought rectification of the Register of Member in respect of 800 shares of Late Modu Timblo.
(2.) IT was claimed that as per the Family Arrangement and Settlement, dated 18th November 1994, which reads as under: The shareholding of the family consisting of S.T., A.T., D.T., and P.T. in the companies, as per the list annexed hereto, shall be brought on par with as it exists in SFI i.e. S.T. 20%, and A.T., D.T. and PT 262/3% each. the Applicant and Dilip M. Timblo 3 and 4 had agreed on the division of the shares. Thereafter, a Shareholders' Agreement dated the 18th November, 1994 was executed between the R -1, 3, 4 and the Applicant wherein the shareholding of all parties is detailed in Clause 1 of the said Shareholders Agreement as reproduced below: The shareholding of each party is in the following proportion: S.T. - 5000 A.T. - 6667 D.T. - 6666 P.T. - 6667 ____________ 25000 Further, Clause II (i) of the Settlement Agreement - 1, dated 5th April, 2005, wherein the agreed shareholding of all parties is detailed reads as under: (i) The parties accept the shareholding in SFI with effect from the death of the late Modu Timblo is as under and accordingly appropriate changes have been effected in the register of members of SFI, viz: ST: 5000 (20%) ("STs SFI Shares") AT: 6667 (26.66%) DT: 6666 (26.66%) PT: 6667 (26.66%) Further, the transfer of shares, of the R -2 Company, by the R -3 in favour of Applicant, was reflected in the Register of Members of the R -2 Company on 5th April, 2005. Further, the transfer of shares, of the R -2 Company, by the R -4 in favour of the Applicant, was reflected in the Register of Members of the R -2 Company on 6th April, 2005 and 13th March, 2006, the same has been admitted by Dilip M. Timblo/Original Petitioner on page 6 paragraph 1.3(b) of the Petition. It was argued that on 8th April, 2005, Dilip M. Timblo became aware of the transmission and transfer of shares, which are impugned in the present Petition, when he was given copies of the Settlement Agreements dated 5th April, 2005, at the Company Law Board, in other proceedings between the parties. Dilip M. Timblo accepted dividend in respect of his shareholding of 6666 shares in the financial years ended March 31, 2002 and March 31, 2006, which also shows that he was fully aware that he was entitled to and had received only 6666 shares. In fact, Dilip M. Timblo accepted the transmission of the shares to him and took the benefit of the transmission of the shares to him. The present Company Petitions have been filed on 14th February, 2012 despite being aware of the transmission and transfer of shares, on 11th April, 2005. For a period of almost 7 years from 11th April, 2005 to 14th February, 2012, Dilip M. Timblo did not challenge the same. It was argued that since the present Company Petitions have been filed after the expiry of a period of 7 years from 11th April, 2005, (i.e. the date on which Dilip M. Timblo had knowledge of the transmission and transfer of the shares, the present Petitions are barred by limitation, as per the provisions of the Limitation Act, 1963. The present Petition is not maintainable, and no reliefs, final or interim or ad interim ought to be granted to the Dilip M. Timblo (Original Petitioner).
(3.) IT was argued that Dilip M. Timblo has approached the CLB with unclean hands and Petitions are not maintainable and are also barred by delay and laches. Further, Dilip M. Timblo has acquiesced in the transmission and transfer of shares, and for this reason also, the present Petitions are not maintainable on the grounds of waiver, acquiescence and estoppel. The Company Petitions are totally barred by limitation, delay and laches and have been filed after seven years of the accrual of the alleged cause of action. It was, therefore, prayed that pending the hearing and final disposal of the Company Petitions, the proceedings be stayed and the interim and ad interim reliefs prayed for be granted and the Company Law Board be pleased to frame a Preliminary Issue, as to whether the present Company Petitions are barred by the law of limitation, or, in any case, are not maintainable as being barred by delay and laches; Company Petition No. 7 of 2012 and 8/2012 be dismissed with costs or in the alternative Company Law Board be pleased to dismiss the present Company Petitions, as being not maintainable on the ground of delay and laches; pending the hearing and disposal of the present Company Application and the decision of the Company Law Board on the Preliminary Issue of limitation and delay and laches, the Order dated 26th July, 2012, passed by the Company Law Board, inter alia directing the Respondents to file an Affidavit in Reply to the Company Petitions by 23rd August, 2012, be modified and the Respondents be permitted to file Affidavits in Reply to the Company Petitions after the disposal of the present Company Application, and after the decision on the Preliminary Issue framed, if so required; pending the final hearing and disposal of the present Company Application and the decision of the Company Law Board on the Preliminary Issue of limitation and delays and laches, the hearing of the present Company Petition, on merits, be stayed.;