AI Structured Summary
Not yet generated for this judgment
Judgment
Harnam Singh Thakur, Member (Judicial) ORDER
CA No. 158 of 2022
The present application dated 11.06.2022 has been filed by the Applicant (Respondent 1, Mr. Ghulam Hassan Mir in the main petition RT CP No. 49A/Chd/J&K/2022 ) seeking dismissal of the petition on the consequent failure to bring the legal representatives of the deceased petitioner on record within the time period i.e. 90 days as prescribed under Rule 53 of the NCLT Rules, 2016.
The main petition has been filed under the erstwhile Section 398 of the Companies Act, 1956 in the Hon’ble High Court of J&K, and after the advent of the Companies Act, 2013 and with the constitution of the National Company Law Tribunal, the present petition was transferred on 01.10.2021 to this Tribunal. There are allegations of oppression and mismanagement against Respondent No. 1 to 3 in the main petition.
It is submitted by the applicant that during the pendency of the present petition, the sole Petitioner i.e. Mr. Abdul Hamid Khan passed away on 12.04.2009 and since 12 years of his demise, the legal heirs of the Petitioner have not been brought on the record yet and hence, the main petition may be dismissed.
Reply dated 07.1102022 was filed by Respondents (Moh. Tahir, s/o the Petitioner, Saima Shakeel, and Farhana Dilshad Khan, d/o the petitioner) wherein it was submitted that due to militancy, the situation of Courts and Tribunals in the State of Jammu and Kashmir has been stagnant since a long time and since 1990, no company judge has been appointed in the Hon’ble High Court of Jammu and Kashmir and hence no proceedings were conducted in company matters including the present petition. Also, Respondent No. 1 Moh. Tahir was out of India during the period from 9th June 2009 to 16 October 2010 and from August 2012 to November 2016 and thereafter returned to India for the treatment of his mother.
Since the Advocate representing the Petitioner in the main petition was in receipt of all the intimations as well as representations in connection with the main petition, the Petitioner remained oblivious of the fact that the main petition was transferred for adjudication before this Hon’ble Tribunal. It was on 02.07.2022 that Respondent No.1 Moh. Tahir received a copy of the application dated 11.06.2022 for dismissal of the main petition filed by the Applicant.
The Respondents prayed for the dismissal of the application on the grounds that the same is not maintainable and they have already filed two applications for impleading them as Legal Representatives of the Petitioner, Abdul Hamid Khan, (father of the respondents in the present application) as well as that of Respondent No. 5, Maqsooda Hamid, (mother of the Respondents in the present application) in the main petition and the same are pending for adjudication before this Tribunal. Written Submissions dated 16.08.2023 have also been filed by the Ld. Counsel for the parties reiterating the facts of the application and reply, respectively.
C.A. No. 232 of 2022 & C.A. No. 62 of 2023
Both these applications are taken up together for discussion being interrelated and interlinked. The C.A. 232 dated 07.07.2022 has been filed by the Applicants (Moh. Tahir, s/o the Petitioner, Saima Shakeel and Farhana Dilshad Khan, d/o the petitioner) for impleading them as Legal representatives (LR’s) of Respondent No. 5 i.e. Maqsooda Hamid (mother of the present Applicants) who expired on 24.02.2017 and C.A. 62 dated 07.07.2022 for condonation of delay of 1873 days in filing the former application.
The main petition i.e. OS No. 411/1987/RT CP No. 49A/CHD/J&K/2022, is pending for adjudication before this bench.
Further, it was also submitted by the Applicants’ that due to militancy, the situation of Courts and Tribunals in the State of Jammu and Kashmir has been stagnant for a long time, and since 1990, no company judge has been appointed in the Hon’ble High Court of Jammu and Kashmir and hence no proceedings were conducted in company matters including the present petition. and the same has been transferred to this Bench in the recent time.
The Applicant No. 1 Moh. Tahir was also out of India during the period from 9th June 2009 to 16 October 2010 and from August 2012 to November 2016 and thereafter returned to India for the treatment of his mother.
Since the Advocate representing the main Petitioner was in receipt of all the intimations as well as representations in connection with the main petition, the Petitioner remained oblivious of the fact that the main petition was transferred for adjudication before this Hon’ble Tribunal. It was on 02.07.2022 that the Applicant No.1 Moh. Tahir received a copy of the application dated 11.06.2022 for the dismissal of the main petition filed by Respondent No.1.
It is prayed by the Applicant that the present application may be allowed and the delay of 1873 days be condoned and they may be impleaded as the LR’s of Respondent No. 5.
C.A. No. 233 of 2022 & C.A. No. 61 of 2023
Both these applications are taken up together for discussion being interrelated and interlinked. The C.A. 233/22 dated 07.07.2022 has been filed by the Applicants for impleading as Legal representatives (LR’s) of the Petitioner (Abdul Hamid Khan, father of the applicants, who expired on 12.04.2009) in the main matter and C.A. 61/23 dated 07.07.2022 for condonation of delay of 4748 days in filing the former application.
The applicant submitted that due to militancy, the situation of Courts and Tribunals in the State of Jammu and Kashmir has been stagnant for a long time and, since 1990, no company judge has been appointed in the Hon’ble High Court of Jammu and Kashmir and hence no proceedings were conducted in company matters including the present petition and the same has been transferred to this Bench in the recent time.
Applicant No. 1 Moh. Tahir was also out of India during the period from 9th June 2009 to 16 October 2010 and from August 2012 to November 2016 and thereafter returned to India for the treatment of his mother.
Since, the Advocate representing the main petitioner was in receipt of all the intimations as well as representations in connection with the main petition, the Petitioner remained oblivious of the fact that the main petition was transferred for adjudication before this Hon’ble Tribunal. It was on 02.07.2022 that the Applicant No.1 Moh. Tahir received a copy of the application dated 11.06.2022 for the dismissal of the main petition filed by Respondent No. 1.
It is prayed by the Applicant that the present application may be allowed and the delay of 4748 days be condoned and they may be impleaded as the LR’s of the main petitioner.
Applications C.A. No. 232/2022, C.A. No. 62/2023 , C.A. No. 233/22 and C.A. 61/2023 being inter-related are taken up together for discussion. There are mainly two main points for determination in these applications :
i. Whether the delay of 1873 days in filing C.A. No. 232/22 for impleading the LR’s of Respondent No. 5 i.e. Maqsooda Hamid, mother of the applicants, be condoned?
ii. whether the delay of 4748 days in filing C.A. No. 233/22 for impleading the LR’s of the main petitioner i.e. Abdul Hamid Khan, father of the applicants, be condoned?
There are two grounds taken in both the applications of condonation of delay, firstly that due to militancy in the state of Jammu and Kashmir, the situation of the courts and tribunals has been stagnant for a long time, and since 1990 no Company Judge was appointed in the state of Jammu and Kashmir. Secondly; the Applicant No. 1 Tahir was out of India for a considerable time of about five and a half years.
It is settled law that in an application for condonation of delay, there must be some reasonable ground and sufficient cause to explain the condonation of delay for each day in filing the application for impleading the LRs.
Here reliance can be placed upon the judgment of The Supreme Court in Balwant Singh Vs. Jagdish Singh reported in (2010) 8 SCC 685 where in paragraphs 25 and 26, it has been observed as under :
"25. We may state that even if the term 'sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of 'reasonableness' as it is understood in its general connotation.
The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."
In the case in hand, both the grounds taken by the Applicants’ for the condonation of delay are not much convincing. It is a fact to common knowledge that for at least the last three years, the law and order situation in the state of Jammu and Kasmir is normal and all the courts including the tribunals are working normally and effectively without any hindrance.
Similarly, the second ground of absence of Applicant No.1 from India for about five and a half years is not a good reason and sufficient cause for condonation of delay. These applications are neither logical nor prudent to condone this culpable and inordinate delay. A party sleeping over its rights has to pay the cost for inertness and inaction.
In these circumstances, we are of the view that the applications impleading the LRs are badly time barred as the prescribed time period of impleading LRs is 90 days. Even if this limitation period is taken into consideration from the date of transfer of the main petition from the Hon’ble High Court of Jammu and Kasmir to this Tribunal i.e. 01.10.2021 or from the date 28.10.2021 i.e. when the parties were directed to be present on 28.10.2021, then also these applications are badly time-barred. No reasonable, logical, and plausible ground for condonation of delay is thus made out.
Resultantly, the applications C.A. No. 232/2022, C.A. No. 62/2023 , C.A. No. 233/22 and C.A. 61/2023 are dismissed, however without any order as to costs.
Now delving upon C.A. 158/22, it is contended that by the Ld. Counsel for the Applicants that since no LR of the Petitioner (Abdul Hamid Khan) has been impleaded in the present petition for 12 years, therefore, the present petition stands abated and liable to be dismissed. Moreover, the respondent company i.e. Respondent No. 4 is not operational, therefore the cause of action does not survive.
After hearing the Counsels for both the parties, we are of considered view that the main petition is liable to be dismissed on the following two grounds:
i. The LRs of the main petitioner, Abdul Hamid Khan have not been impleaded for 12 years. The application for impleadment has been dismissed vide separate order of even date on the ground of inordinate delay of more than 12 years.
ii. Secondly, it is also admitted by the Ld. Counsel for parties that the Respondent No.4 company is no more in operations due to the death of the main petitioner, Abdul Hamid Khan. Thus, the cause of action of oppression and mismanagement does not survive.
Considering the facts and circumstances of the case, the present Application is maintainable on merits. Accordingly, C.A. No. 158/22 stands allowed. Resultantly, we have no option but to dismiss the main petition OS No. 411/1987/CP No. 49A/Chd/J&K/2022 and ordered accordingly.