NIRMALA MAHIM BHATT Vs. HOTEL LONGDALE (P) LTD.

JUDGEMENT

(1.) IN this case, the petitioners filed the company petition for the alleged acts of oppression and mismanagement under section 397/398 of the Companies Act, 1956 and the same is pending for adjudication. In the meantime, the present Company Application No. 257/2014 has been filed with the prayer to allow substitution of petitioner No. 1 (Mrs. Nirmala Mahim Bhatt) with applicant (Mrs. Harshita Arya, i.e., petitioner No. 2). Precisely speaking, it has been submitted in the said company application that there was painful demise of Mrs. Nirmala Mahim Bhat, petitioner No. 1 on 29.11.2013 at 10.00 pm. In this regard, it has also been averred that Mrs. Harshita Arya (applicant) has registered Will in her favour executed by Mrs. Nirmala Mahim Bhatt on 3.9.2011. In the reply, the respondents Nos. 1 and 2's advocate submitted that the petitioner No. 1 expired on 29.11.2013 and the present application has been filed on 7.1.2014, i.e., after the lapse of over 30 days from the date of demise and, thus, proceeding qua petitioner No. 1 stands abated. Further, it has also been pleaded that the present application is barred by limitation as provided under regulation 28 of Company Law Board Regulations, 1991, as the same has been filed after the expiry of 30 days from the date of demise of the petitioner No. 1. In addition, it has also been controverted that the applicant herein is relying on the alleged Will of the petitioner No. 1 dated 3.9.2011 whereas the applicant ought to have obtained probate/letters of administration in terms of sections 276 to 278 of the Indian Succession Act through a competent court of law. Apart from this, it has also been contended that this Hon'ble Board is not vested with powers under Indian Succession Act and, thus, does not have jurisdiction under the said Act to uphold, accept/reject and declare the validity/invalidity of such a Will. The respondents' advocate has further submitted that the answering respondents duly dispute the said alleged Will as the same is not the last Will and Testament of late petitioner No. 1. On the contrary, it has been stated that this Hon'ble Board is under an obligation to substitute all heirs of petitioner No. 1 including the petitioner No. 2 as her heirs in the present proceedings in the absence of probate/letter of administration obtained in terms of the Will.

(2.) THE respondents No. 4 and 5 advocate has also filed reply stating therein that the present company is barred by limitation as provided under regulation 28 of CLB Regulations, 1991 as the application has been filed beyond the period of 30 days from the demise of petitioner No. 1. In part, the petitioner No. 1 had expired on 29.11.2013 and the present application has been filed on 7.1.2014 and hence, the present application stands abated and liable to be dismissed as qua petitioner No. 1, Further, it has also been pleaded that this Hon'ble Board cannot adjudicate upon the existence, execution, legality, validity or enforceability etc. of Will and the alleged Will dated 3.9.2011 is not the last Will and testament of Mrs. Nirma Mahim Bhatt. Apart from this, it has also been pointed out that the said Will disputed by the heirs of the deceased including its beneficiaries cannot be enforced and considered by this Hon'ble Board unless the probate/letter of administration in terms of sections 276 to 278 of the Indian Succession Act is obtained through a competent court of law.

(3.) THE petitioner/applicant advocate has argued that Mrs. Nirmala Mahim Bhatt (petitioner No. 1) died on 29.11.2013 and the present company application was filed under regulation 28 and 44 of Company Law Board Regulations/1991, on behalf of her daughter, viz., Mrs. Harshita (applicant herein) for substituting petitioner No. 1 in this regard, the applicant has also enclosed registered Will which was executed by Mrs. Nirmala Mahim Bhatt (petitioner No. 1) on 3.9.2011 in favour of applicant (Mrs. Harshita). In regard to delay in filing the company application, the petitioner advocate has pleaded that the whole family was under deep shock and trauma and it took some time for the applicant and her family to come out from the traumatic situation. The applicant was involved in the last religious rites. The death certificate was issued by the State Authority on 16.12.2013 and thereafter, the applicant contacted her counsel at Delhi for the purpose of legal formality. The applicant sent all the relevant documents to her lawyer at Delhi who prepared relevant application for substitution, of deceased petitioner No. 1. The lawyer at Delhi prepared the substitution application and the same was sent back to the applicant at Haldwani, Nainital and after signing and swearing of application, it was again sent back to Delhi for the purpose of filing and the said substitution application dated 6.1.2014 was duly filed with this Hon'ble Bench on 7.1.2014. The applicant's advocate further submitted that little inadvertent delay of 8 days in filing substitution application was unintentional.