Non-members of a company lack the right to approach the Tribunal under Section 241 of the Companies Act, and the question of limitation is a mixed question of law and facts.

JUDGMENT :

CHANDER BHUSAN BAROWALIA, J.

1. The present application, under Order 7, Rule 11(d) of the Code of Civil Procedure, has been maintained by the applicants/defendants for rejection of the plaint, wherein the plaintiff/non-applicant prayed as under:

"(i) Decree for specific performance of the contract/MOU and SMOU, dated 26.05.2007, respectively, arrived at between the parties may kindly be passed in favour of the plaintiff and against the defendants directing them to allot and transfer the equity shares of Himland Real Estate Pvt. Ltd. Company in favour of the plaintiff based on proportionate to the amount received by the defendants against agreed allotment of 60% of the shares of the Company or in the alternative, plaintiff is entitled for claim of compensation of Rs. 5,89,18,970/- on account of compensation of breach of said contracts by defendants alongwith pendente lite and future interest and cost of the suit.

(ii) That a decree for permanent prohibitory injunction restraining the defendants from creating any third party interest in the movable and immovable interests including shares of the company by way of entering into any contract, sale, transfer, hypothecation or creation of lease/mortgage etc. till the determination of the dispute between the parties by this Hon'ble Court."

As per the applicants, the suit preferred by the non-applicant/plaintiff is not maintainable before this Court, in view of the specific bar as contained in Section 430 of the Companies Act, 2013, which clearly provides that no Civil Court shall have any jurisdiction to entertain any suit or proceedings in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine inasmuch as no injunction shall be granted by any Court. It is further averred that the non-applicant/plaintiff in the suit has averred that he is ready and willing to do all acts, deeds and things required to be performed by him to complete the process of transfer of shares in his favour, as such, the applicants/defendants are liable to transfer the said shares of the company in his favour. Since the dispute raised by the non-applicant is with respect to transfer of the shares, as is evident from the averments made in the plaint, more particularly in para-11 of the plaint, the proper Court to deal with such issues is only the National Company Law Tribunal, which has been constituted under Section 408 of the Companies Act, 2013. Therefore, the plaint filed by the non-applicant/plaintiff being barred by the provisions of Section 430 of the Companies Act, 2013, may be dismissed. It is further averred in the application that the suit is otherwise hit by the provisions of Limitation Act, which prescribes only three years to enforce the specific performance of a contract. However, in the present case, the non-applicant/plaintiff has instituted the suit on 15.03.2019, whereby he is seeking the specific performance of the contract/MOU and SMOU dated, 26.05.2007. As per the provisions of Article 54 of the Limitation Act, the period of three years has been fixed for performance of the contract, as such, the plaint under Order 7, Rule 11 of the Code of Civil Procedure deserves to be rejected.

2. In reply to the application, it is averred that provisions of Section 430 of the Companies Act, 2013, as referred by the applicants in the application, envisage the provision of law in the matter, for which the Tribunal is empowered to determine the dispute between the members of the company related to business affairs of the company and does not oust the jurisdiction of the Civil Court, but, since the non-applicant/plaintiff has filed the suit being non-member of the Company, has even no legal right to approach the Tribunal, under Section 241 of the Companies Act, which confer the right to approach the Tribunal only to the members of the company and status of the non-applicant/plaintiff against the company is of third party, as per Agreement/MOU arrived at between the