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Judgment
O R D E R
22.11.2022: The present Appeal preferred by the Appellant who is the director of the Shamshun Tea and Industries (P) Ltd. being aggrieved and dissatisfied by the order dated 17.09.2021 passed by the National Company Law Tribunal (Guwahati Bench, Guwahati) in IA No. 62 of 2018 in C.P. No. 30/130/213/241/242/144/GB/2018 whereby and whereunder IA 62/2018 filed by the Respondent herein for waiver of the requirements of Section 244 of the Companies Act, 2013 for the Company Petition No. 30/2018 and after hearing the parties the Tribunal passed the following orders:
“11.Heard both the sides at length. On perusal of the documents, affidavits submitted and submissions and arguments made by both the sides, we are of considered view that this application needs to be allowed for the following reasons:
i.As per Sec. 244 of the Companies Act, 2013, in case of a Company have share capital, not less than one hundred members of the company or not less than one-tenth of the total number of its embers, whichever is less, or any member or members holding not less than one tenth of the issued share capital of the company may apply under Sec. 241 for relief against oppression and mismanagement of the Company.
ii.This is a Family Company/Concern. There were total 9 Original Shareholders out which one is the Petitioner. Hence the Petitioner is within the one-tenth of the total number of its members, though the Petitioner is holding only 50 (Fifty) shares out of the total 1100 (Eleven Hundred) shares.
iii.Respondent No. 17 and 18 of the main Petition have supported the claim of the Petitioner. They are the daughters of Late Md. Azizur Rahman, and are holding 50 (Fifty) shares each respectively.
iv.The Original Share Certificate are still in the possession of the Petitioner and Respondent No. 17 and 18 which shows that the transfer of thee shares might not have taken place.
v.The Judgment and order dated 31.10.2018 passed by the Hon'ble District Court, Dibrugarh in Title Suit No. 35 of 2008 wherein it was ordered by the Learned Civil Judge (which is partly reproduced as under):
"The plaintiffs are hereby declared entitled and the defendants are declared s liable, and being so liable, the defendants shall pay a sum of Rs. 60,75,780.00 (Rupees Sixty Lakhs Seventy-Five Thousands Seven Hundred Eight Only) in total as per their proportionate dues to the plaintiffs within a period of 6 (Six) months from today. On receipt of the sum, the plaintiffs shall receive their proportionate amount which are due to each of them.
On receipt of the aforesaid amount, the plaintiffs shall formally transfer their shares in the company in favour of the defendants without unnecessary delay."
Therefore, it is clear that the applicant herein is a Member Shareholder of the concerned Company and the prayer made by the Petitioner to hear the Main Petition needs to be entertained.
12.Hence, IA 62/2018 is allowed only to the extent of hearing the Main Company Petition No. 30/2018 filed by the Petitioner before this Tribunal.
13.Since the matter is going on from the last 3 (Three) years, the Registry is directed to list the Main Petition at an early date for hearing.”
The Ld. Counsel for the Appellant during the course of argument and in his written submissions submitted that after 10 years a Company Petition No. 30 of 2018 for alleged oppression and mismanagement of the Appellant Company, was filed on the same facts and further I.A. No. 62 of 2018 was filed by the Respondent herein for waiver of the requirements of Section 244 of the Companies Act, 2013. Further submitted that the petition filed by the Respondent herein before the Tribunal is not maintainable in as much as it is hopelessly barred by the laws of limitation especially Article 131 of the Limitation Act, 1963. It is also submitted that the aforesaid I.A. was filed by the third person and Company is run by private family concern - Mr. Shaukat M. Rahman and four daughters, therefore, the aforesaid IA is also not maintainable and the impugned order passed by the Tribunal is without jurisdiction.
On the other hand, the Ld. Counsel for the Respondent No. 1 submitted that the main application is still pending before the Tribunal, therefore, there is no merit in the Appeal, the same is fit to be dismissed.
Be that as it may, without entering in to merits of the case and submissions advanced by the parties as the main application under Section 241 and 242 of the Companies Act, 2013 is still pending before the Tribunal, we dispose of the instant Appeal with the request to the National Company Law Tribunal (Guwahati Bench, Guwahati) to pass appropriate orders at an early date after hearing both the parties. Parties are at liberty to raise all the points before the Tribunal which they are arguing before this Tribunal.
With these observations, the instant Appeal is disposed of.
Registry to upload the Order on the website of this Appellate Tribunal and send the copy of this Order to the National Company Law Tribunal (Guwahati Bench, Guwahati), forthwith.