DILIP MODU TIMBLO Vs. SOCIEDADE DE FOMENTO INDUSTRIES (P.) LTD.

JUDGEMENT

(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:

(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.