Dilip Kumar Ari vs M/S. Matrikalyan Nursing Home Private ...

Dilip Kumar Ari ...Appellant

Vs.

M/s. Matrikalyan Nursing Home Private Limited & Ors. ...Respondents

ORDER

24.10.2017- This appeal has been preferred by the

appellant/petitioner against the judgment dated 18th August, 2017

passed by National Company Law Tribunal (hereinafter referred to as

"Tribunal") Kolkata Bench, Kolkata, whereby and whereunder the

application preferred by appellant under sections 397, 398 read with

Sections 402, 403, 406 and other provisions of the Companies Act, 1956

and Sections 58 and 59 of the Companies Act, 2013 has been dismissed

on the ground of delay.

2. We have heard learned counsel for the appellant and perused the

record.

3. Admittedly, the appellant/petitioner(s) were aggrieved against the

decision of the Board meeting held on 31st July, 2008 wherein decision

was taken to increase the share capital of the company from 11,100 -2-

equity shares of Rs.10/- each to 17,800 equity shares of Rs.10/- each

and it was also agreed that further shares to such extent would be

allotted in favour of 2nd Respondent. Accordingly, 6,700 shares were

allotted in favour of 2nd Respondent with the consent of the appellant &

ors. (petitioner(s)).

4. Learned Tribunal has noticed that though such decision was

taken on 31st July, 2008 but application under Sections 397, 398 read

with Sections 402, 403, 406 and other provisions of the Companies Act,

1956 was filed after more than six years of delay. The Tribunal further

noticed that 6,700 shares were allotted in favour of the 2nd Respondent

with the consent of the appellant & ors (petitioner(s)). Taking into

consideration the aforesaid fact, the application preferred by the

appellant was dismissed on the ground of delay.

5. Learned counsel appearing on behalf of the appellant submits

that the appellant/petitioner(s) were pursuing a civil suit before the City

Civil Court at Calcutta being T.S.No. 3322 of 2007, therein the appellant

had claimed right and entitlement over the assets of the company.

However, such ground cannot be taken into consideration for the

purpose of condoning delay in the application under Sections 397 & 398

wherein allegation of oppression and mismanagement has been alleged

which is not the subject-matter of the suit. For the reasons aforesaid,

we are not inclined to interfere with the impugned order 18th August, -3-

2017. The appeal is accordingly dismissed. However, in the facts and

circumstances of the case, there shall be no order as to cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk