National Company Law Appellate Tribunal
Esquire Electronics Inc. & Anr vs Netherlands India Communications ... on 15 February, 2017
eek,
IN THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL
COMPANY APPELLATE JURISDICTION
{arising ont of Order dated G® October, 2016 passed by NCLT,
Principal Bench, New Delhi in C.A. Ne. 273 in €.P. No.
108 J/ND 2016).
M/s Esquire Electronica Inc. & Anr. +. Appallants
Netherlands India Communications
Enterprises Ltd. & Others. ee Respondents
For Appellants: oM
Uttam Dhatt, Advoeate
been preferred by Appellant(s} Esquire
Bhectron ant No. 1) & Ane, Esquire Electronics {India}
(Appellant Nes. against Order ard judgement dated 6° October
S010 passed by National Cornmpany Law Tribunal, Principal Benet,
New Delhi (hereinafter referred to as the 'Tribunal in Company
Petilion Ne. LOB /NDS2016 whershy and whereunder the Tribunal
dismissed the Campany Petition fled under Section 241 and 289 of
Seed
~
the Companies Act 2013, and imposed cost of Rs. 25,000/- on the
appellantis) with following GhServahians -
"39 fis needless to say fhat any observation made in the
instant order shall not he construed as an expression
ef apinion on the ment of controversy raised in CP
67/2008 or any application flew therein. As ihe
stant petition against
petitioners have Aled the i
Respondent No. J and its directors
Respondent Nes. 2 ndent Noe. 6
campenty, we find ths
harred and an alemnpt
igsties in respect of, and s
en ofheraudse, fhe
the fiehunt petition
y, shareholder or
Y eompany at any
this petition falls and the saw ts
a
Ascordin
dismissed ith Rs. 85,000%~- as cost."
a. According to the appellant{s), the 18 appellant is a Company
incorporated as per laws of United States of America. 2°¢ appellant is
the President of another company. The IS appellant company
primarily holds 429740 equity shares af 18 respandenl Company,
Netherlands India Communications Enterprises Ltd. comprising of
18.97% of ite paid up capital. Originally, im the r 2007, RH 2008
the [S appellant held 720750 expuity shares camprising of 2SAks of
NS paid up capital af the 1S respondent company. Eis alleged tha
Be
y
with the Hlegal dilution by the 28 and 3 respondents sines the year
2005, the sharehokling of the 1' appellant has reduced to 14. 378s
ard thereafter in the year 2012 further reduced te 8.55%),
we
3. Purther, case of the appellant is} is that the sole proprietor of
I® appellant, Shri S.S. Lamba, is holding &468¢ quity shares of the
company, aggregating to 2.83 of fe peid up capit Initially in the
a
year 2001, and ull 200, the gee appe sot held ¢ GH4O80 cumprising of
2.G5% of the ecpaity cs company. The 2es
appellant alse alloge
and 2 respondents since the 4
fution, the curpent collective
~
SES pel ant is} iS LLASSS of the equity capital of the
&. Accomhing | to apretiantis}, iS respondent company was
insarparated in the year 1998S and Zeit & Ot peaponcdenia were its
1%
mitiel promoters. The 18 respondent is in the business of telecom
services bul ii has mot beer doing amy business simen 204-2005 anal
ae per the dats available with the Registrar of Cornpanies, f has nat
ts
done any atahatory flings since OTS and even prior thereto the lines
4
are incormplete, As per the records, | the last Annual Ceeneral Meetine
AGM! for short} was held by the 1S respondent company in the year
3012, which itself was iegal. [tis alse alleged that the 4* respondent
has been ilegally appointed as a Directar by the ae and 38
respondent (s} though he is not the shareholder of the cnmpany.
S. Further case of the appellant(s) SS respondent holds
anly 4500 shares in the I respondent company and he has been
{iegally appointed as Director, In fact both the re dents are the
%
proxy agents of 2 and oa respondents in order to get tb saqority
an the Board.
Be respondent company holds
of the equity capital. 68
"we the arrrual return for the year 2012.
iis S2.47% paid up capital af S*
f ft is alleged that there are mamber of shareholders of 1s
respandent company who have been Hex: ally allotted shares by 2°
arul Se! respondents.
13
B. Similar plea was taken before the Trrounal but wh thout going
mito fhe merit of thee case, the Prifumal dismissed the Company
xt
Petition on the ground that the petitiog: is hopelessly time barred and
an attempt has been made to rake up issues and reliefs pertaining to
the years S000 te 2012 . Phe Tribunal further observed that otherwise
aiso the appeliantis) lack Jocus sfandi to fle the Commpany Petition as
they have neither been director, shareholder or members of the 1&
respondent company at army stage whatsoever.
g. Notices {sg} wore issued on resporule by speed post but all
mohions refurned by the postal depart jc note that the
28 and S& respondent (=) refused ta geoept notice and the 18
Four address. 'Tn that. of refiagal the notices
reapondent left 4
were treated ty be sland the appeal was heard,
This court omainds the questinn of Limitation and
maintainability as the T inunal observer! that the petition is barred by
Limitation and appellant(s} are nether directars, nor sharchalders of
the 1* respondent company.
~
li. The appellant{s} have apecificuliy pleaded that the respondents
failed to perform statutory filme before the Registrar of Companies
amd no AGM held sinne the year SO)2. As chause Oo) and (evu} of
iS
paragraph Y at page S6 the appellants mace flowing sigtement: ~
"feat? ois Aurther submitted that no Balance Sheet{s} of
the Company Respondent No. J Company have
heen quilted and circulated since 2009 Le, for the
year BOOS, BOOS, LOGE, SOGY, SOCB, 2009, SO7TG,
BOR) od 20S, 2093, BOTS and S015 and
surprisingly, the latest Balance eat Aas mat Suey?
abrpuWed that all the
been created. 1 humbly
Balance Sheets for 2004,
2008, 2006,
8, BOL3, 2OE4 an
2008, 2010, 20] J and:
aught to and aucited,
heen pagpane
Furthermore. fespandenr No, 1 Company ought
to have prepared Dipectors Fi gon and circulated
S t he SERS.
The aforesaid statement stands meontroverted in view of
refusal of notices by contesting respondents.
12. We agree with the finding of Tribunal that Section 429 of the
Companies Act, 2019 (hereirafter referred to as Act af 2013) makes
vad
it clear that the provisions of Limitation Ant 1963 (86 af L963) appby
to proceedings cr appeals before the Tribunal or the Appellate
Tribunal, aw the case may be. The Tribunal ales rightly held that the
os
*
petitions under Section G87 and 9S are enfprceable ike decree arc for all purpose a suit within the meaning af re ode af Civil Procedure.
We also agree with the finding of the Tri bu that the suit for which per Article [1S of the reasen 3, Por yortlantis} eamnot rake up an s which ia three y > iS. Mowever, in Ui os he appellantis} alleged inaction an the part of the respondents even after the year O15. They no Ralance Sheet of the i8 Raye -
TESPOM dent SUUPANY § adited and circulated for the year 2018, 2014, after. "The apoellantis) have also pleaded thet the Re O15 and ther company has not conversed its AQM since | 2O12 that means no AWM of the company has been convened diuring the year SOLS, 2614 or S015 Le. within three years of Ming af the Company Petar.
i§, ta view of such pleading made by the appellentis) relating to sontinuing cause of action during the peried 2015, 2014 and 2015 ee cad we are of the view and hold that though the Company Petition was barred by lirdtation In so far inaction, W any, took place prior ta 2013 ie. three years prior to the fling of the Company Petition but inaction ar any alleged oppression and misraanagement, any made during the years 2015, 2014 and 2015S Le. within three years of Ming of the Company Petition was maintainable and ig met barred by limitation, 1S. In view of observation as made above, while accept that the apmeal in so far it relates to alle . made fir the periad 2008 fo ar if relates to alleged S014 and 2OS :
required to confir that the wppellants (petidieners} ~or member of the 1s resporiont a tsnever is concerned, we fed that the said findimg is not Sas ed on record. The Tribunal has mot discussed the quiestian: as fo w he 6 ther the appellanti(s} had any sharcholding in the :
1@ yeaporident commany nor referred to any evidence. iF. Perm 208, in which anmual return has been Aled by company with the Registrar of Companies for the fimancial year beginning on VP ae Sis March 2O12 has been enclosed as Anmexure-B to this appeal From the said Porm 20 © frefer Section 199 of the Companies Act 1@SS}, provides details of sharchoklers as on AF September 2012 jAnnesure-A to the Form). Therein, against the name of 1" appellant, * Baquire Electronic Inc." if has been shown as a foreign company having 429750 equity shares with the 1' respondent company which nome to about 9.54% as an the date of filing. In so far as 2" appellant ed ¥ ; wa. SE Mya ak. RP ow & at the 2° sopellant re Seqnuine Electronics Undia}' a frm, uv heave R408 equury shares af 1 gegporndent com which cores to about 1.88% at the ime of Ming.
evidence which Nas ne bard 53 , From the aforesa been disputed by a the Neapondents, ©, pra aete, made ont @ case sehoidees of the 1° Respondent Company, | share holding and thereby eS to fle the petition alleging oppression and ding of Tribunal that appellant{s} lack locus Stition as they are not the director {9} or shureholder or t many is not based any record.
10, For the reasons and finding as recorded above, we set aside the mart of impugned fudgement dated G& October 2016 passed in Company Petition No. 1O8/NDSS01G in se far ag it relates to maintainability of the petition for the period 2015, 2014 and 2015 onwards and remit the case to National Company Law Tribunal, Principal Bench, New Delhi te take decision an merit, Hmiting the prayer with regard to alleged 'oppression and mismanagement', ifany, made between the year 2O1S anwarnis.
20. The appeal is allowed] in part, im 8 Sif relates te the period 2013 onwards but dismissed in se far sto year {s} prior ta 2019. However, in the facts and clreumstances there shall be ne order Rs te cost.
Saf en Sd y+ (Mr. Babinder 8 sae} J. Mukhopadhaya} Member (Technics) hairperson NEW DELHI IS® February, 2OTF