TMI Blog2015 (10) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... s barred by limitation by more than five years - Petitioner failed to prosecute its civil and company law rights with due care and diligence - Petition accordingly would stand dismissed – Decided in favour of the Respondent. - Company Petition No.101 of 2010 (O&M) - - - Dated:- 27-8-2014 - MR. RAJIV NARAIN RAINA, J. For The Petitioner Mr.Jasmeet Singh, Advocate For The Respondent Mr.Anand Chhibbar, Sr. Advocate with Mr.Gaurav Mankotia, Mr.Malok Singh, Ms.Harpriya Khaneka and Mr.Vaibhav Sahni, Advocates, RAJIV NARAIN RAINA, J. Having heard the respective counsel and learned senior counsel for the parties this court has come around to the view that t he present Company Petition deserves to be dismissed as one by barred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter was pending before the BIFR. The BIFR vide its order dated 28th June 2005 (P-4), while observing that the net worth of the Company has become positive in terms of its current balance sheets since its accumulated losses were demonstrably wiped out and as such declared the Company as no longer sick within the meaning of Section 3 (1)(o) of the Act and accordingly discharged the Respondent Company from the purview of the Act and set it free to carry on its business without the yoke of the Act. 2. In para. 10 (a) of the Company Petition, the Petitioner has asserted that on coming to know of the reference of the Respondent Company pending with BIFR, it also registered its claim against the Respondent with the Board of Industrial Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings from the BIFR had terminated and the said order had been passed therein. The Petitioner, however, in para. 10(c) of the Company Petition has taken a volte-face by pleading: In May, 2010, the Petitioner received the information as to the said order (Annexure P-4) through third party resources. Immediately thereafter, the petitioner through its counsel, issued a legal notice dated 11.05.2010... Thus, it is abundantly clear that the facts as stated both in para. 12 and para. 10(c) of the Company Petition as far from the truth. 4. The petitioner has further intentionally and wrongly stated in Para. No. 12 of the Company Petition that Owing to the non-supply of the said order (Annexure P-4) to the Petitioner Company, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e BIFR on 27th July 2000 (P-9) and the letter sent by the Petitioner to the BIFR dated 12th August 2000 (P- 10). Even after the Respondent Company came out of the purview of BIFR on 28th June 2005 (P-4) no claim was ever made by the Petitioner to recover its debt. The legal notice was sent for the first time on 11th May 2010 after about 5 years of the day when the Company had come out from BIFR. The Company Petition even from this angle is barred by limitation. The claim of the Petitioner in order to bring the present petition within limitation on the submission that no intimation was received from the BIFR cannot be believed or sustained as the Petitioner should have been diligent enough to recover its debt in time. The said plea cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 005 has to be excluded. Even if it is, even then the Company Petition is barred by limitation by more than five years. Even equity can then no longer come in aid of a slumbering party sitting idle waiting for a miracle to happen or manna to fall from heaven. The petitioner failed to prosecute its civil and company law rights with due care and diligence. It can now have no equitable bonanza or a lucky draw from the arena of litigation. It has been observed by the Supreme Court in Raghunath Rai Bareja and Another Vs. Punjab National Bank and Others; [2007] 135 Company Cases 163 (SC) that:- ...it is well settled that when there is a conflict between law and equity, it is the law which has to prevail.. 9. In the present case, the clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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