- (1.) This is an application filed by Respondent Nos.1 & 2 with a prayer for dismissal of Company Petition No.41(ND)/2016 with cost on the ground of delay and laches. Notice of the application was issued and a reply has been filed vehemently opposing the prayer made in the application. The applicant-Respondent Nos.1 & 2 have filed their rejoinder reiterating the averments made in the application and giving para-wise reply to the preliminary submissions raised in the reply.
(2.) We have heard learned counsel for the parties at considerable length. Mr. K Datta learned counsel for the applicant -Respondent Nos.1 & 2 has made a reference to numerous averments made in the petition under different heading namely [1] 'Particulars of the company'; [5] 'Limitation'; 'Instances of oppression and mismanagement'; 6.13 'illegal & unlawful allotment of shares in favour of Respondent No.2 and late Mr. Francis Wacziarg'; 6.29 'Drastic Downfall in the dividends' 6.36 to 6.41. The fundamental issue raised by Mr. K. Datta learned counsel for the applicant-respondents is that a perusal of the aforesaid paras of the company petition would show that authorized capital of Respondent No. 1-company is stated to have been increased allegedly with a mala fide intention on 20.12.2006 by holding EOGM. The allegations are that the EOGM was held without giving prior notice to the non applicant-petitioner. Likewise the authorized share capital was further increased on 01.12.2007 in another EOGM held on 01.12.2007 without giving prior notice to the non applicant-petitioner. There are further allegations that on 21.02.2008, 10.01.2011, 24.03.2011, 25.05.2011 and 10.08.2011 as a result of increase in the authorized and paid up capital the shareholding of the petitioner allegedly has been reduced to a negligible sum 2.08% whereas petitioner use to hold 21.40%. The aforesaid averments have been made to substantiate the allegation of oppression and mismanagement from paras 6.13 to 6.21, illegal & unlawful allotment of 35200 shares in favour of Respondent No.2 and also allotment of 25000 to late Mr. Francis Wacziarg. In paras 6.22 to 6.28 it has also been alleged that the applicant-Respondent Nos.1 & 2 had hidden agenda in managing those resolutions from the EOGM. Similar averments have been made in paras 6.38 to 6.41. Mr Datta learned counsel for the applicant -respondent No.1 & 2 has argued that all these transactions have taken place in the year 2006, 2007, 2008 and 2011 which clearly attract the principles of delay and laches.
(3.) According to the learned counsel the explanation for delay in filing of the petition on 04.03.2016 is also not acceptable. In that regard a reference has been made to the settlement before Hon'ble Delhi High Court. Mr. Datta has submitted that this explanation is not bona fide because proceedings do not pertain to Respondent No. 1-company. These proceedings are infact a family arrangement between the two persons or between the two groups. Therefore it would not constitute a legal basis for explaining the delay and to approach the Tribunal after five years. A reference has also been made to the explanation that on 22.03.2013 there was drastic decreased in the payment of dividends which led to bona fide doubts about the of respondents. According to Mr. Datta this also is wholly unacceptable because the non applicant-petitioner has been paid a dividend amounting to Rs.6,12,000/- on 16.06.2005. A similar amount was paid on 3.4.2007 & 7.2.2008. Thereafter no dividend was paid in the year 2009 and 2010 and by that logic the petitioner should have apprehended foul play in the affairs of the Respondent No. 1-company when the dividends were not paid in 2009 & 2010. It is further submitted that dividends were again paid on 24.08.2011 for the same amount of Rs.6,12,000/- and for the year 2012 no dividend was paid. According to the learned counsel these are all lame excuses tendering no valid explanation for approaching this Tribunal so belatedly on 04.03.2016. Learned counsel has made a prayer for dismissing the petition on the ground of delay and laches. In support of his submissions he has placed reliance on a judgment of Principal Bench of this National Company Law Tribunal, in the case of Praveen Shankaralayam v. Elan Professional Appliances Pvt. Ltd. and Ors [C.P. No.04/ND/2016] decided on 20.10.2016 and argued that the provisions of Article 113 of Limitation Act would apply and even otherwise the delay and laches have to be explained in view of the authoritative pronouncement of Hon'ble Supreme Court in the case of State of Madhya Pradesh v. Bhailal Bhai & Ors, 1964 AIR(SC) 1006 and MTNL v. State of Maharastra and Anrs, 2013 9 SCC 92. Learned counsel has also placed reliance to substantiate his submission that even period of three years is not sine quo non and if there is undue and unexplained delay and laches for less than three years the petition must be dismissed because 3rd party right tend to intervene.;