TMI Blog2020 (10) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... er whether the 'Plea of Sufficiency of Cause' is a reasonable one or otherwise, of course after taking into consideration of the facts and circumstances of a given case. Undoubtedly, consideration of an existence of a 'Sufficient Cause' is within the ambit of the concerned Authority, which has to be exercised based on sound judicial principles - It cannot be gain said that 'Right to refuse' registration of transfer of shares, 'Sufficient Cause' is question of law and the cause shown for refusal is sufficient or otherwise in a given case, can also be a 'mixed question of law' and fact. Besides this, a refusal may be on the; basis of 'Breach of Law' or any other 'Sufficient Cause'. In the present case, it has become necessary to adjudicate the issue of whether the Company Petition as filed by the Petitioner is barred by limitation and whether the delay can be condoned. However, before venturing into the issue of whether the delay has to be condoned or not, from the facts narrated above, this Tribunal is of the considered view that issue of limitation in the present case, is a mixed question of fact and law. This Tribunal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2011 and subsequently by letter dated 20.11.2012 requested the 1st Respondent Company for the purported subscription agreement and the Respondent Company vide letter dated 05.12.2012, sent a copy of the agreement and further informed the petitioner that the activities of the 1st Respondent Company have been wound up with the suspension of lease agreement with the land lords. e) It is averred that upon perusal of the records an d the share subscription agreement, it is found that the 1st Respondent Company had an obligation under the agreement to amend its articles and list the Company at the Stock Exchange in Madras and Bombay and remove restrictions of share transfer, which obligation they have clearly not fulfilled. Further, it is averred that the 5th Respondent has fulfilled its obligation under the agreement for offering right of first refusal to the existing shareholder by publication of notice in the journal. f) It is also averred that upon perusal of the financial statements of the 1st Respondent Company, it reveals the fact that they have given interest free unsecured loan to its director for an amount of ₹ 1,20,25,337/-which is outstanding even as on the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010) 5TPL (Web) 424 SC, wherein it has been categorically held by the Apex Court as follows: While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. After all, justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold It is pertinent to point out that unless mala fides are writ large on the conduct of the party, generally as a normal 1 rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities. Apart from the above, appellant would not have gained in any manner whatsoever, by not filing the appeal with in the period of limitation. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the Court to see to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also by adopting a pedantic approach. 7. In relation to the Respondents, it may be seen from the record of proceedings of CP/95/2017 that the 2nd Respondent has died and the R1, R4 and R5 have been set ex-parte. However, only R3 has filed the counter in this Application and has stated that the Petitioner has been acting in a lethargic manner by writing letters to the Respondent Company and other authorities for failure to rectify its register and Section 59 of the Act, 2013 states that if the delay takes place in the Register then the applicant is entitled to move before the competent forum for necessary reliefs within the prescribed period of limitation. It was further stated in the counter that the Judgment relied on by the Applicant is no way relevant to the facts and circumstances of the case and the Applicant has slept for over more than 4 years in approaching this Tribunal and under the circumstances prayed for dismissal of this Application. 8. Heard both sides and perused the records. As already seen from the facts narrated above, after the filing of the Counter by the 3rd Respondent in the main Company Petition CP/95/2017, in which they have stated that the Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order XIV Rule 2(2) as a preliminary issue or any other such issue of law which required examination of the disputed facts. In case of dispute as to facts, it is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed. It cannot be decided as a preliminary issue if the facts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976. 62. In our opinion, it cannot be laid down as proposition of law under Order VII Rule 11(d) that plaint cannot be rejected as barred by limitation. It can be said that it is permissible to do so mainly in a case where the plain averment itself indicate the cause of action to be barred by limitation and no further evidence is required to adjudicate the issue. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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