TMI Blog2017 (3) TMI 1826X X X X Extracts X X X X X X X X Extracts X X X X ..... at the very threshold. The objection of maintainability is rejected. Application dismissed without cost to be consigned on record. - IA 01/2017 in TCP 86/397-398/CLB/MB/MAH/2014 - - - Dated:- 10-3-2017 - M.K. Shrawat, Member (J) For the Appellant : Chirag R. Sonecha, Advocate ORDER M.K. Shrawat, Member (J) 1. The impugned Application (IA 01/2017) submitted on 24th of January 2017 challenging the maintainability of the Main Petition (CP 86/2014) submitted on 13th October, 2014. The Respondents have challenged the Petition on the ground of barred by limitation . 2. From the side of the Applicants/Respondent, Ld. Representative has pleaded that on account of the introduction of Section 433 in Companies Act, 2013 the provisions of Limitation Act 1963 are now applicable on this Petition. He has pleaded that the financial statements for the year 2005-06 were in the knowledge of the Petitioner, hence he should not have taken the grievance in the year 2014, after the lapse of around six years. As per the Limitation Act 1963 the period prescribed is 3 years for institution of any suit which according to him has exhausted in this case. The Petitioner was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sides at some length. The basic feature of the Petition under consideration is that the relief claimed are prima-facie perpetual in nature. Such as Prayer to appoint an appropriate person to manage the affairs of the Company is an issue of continuing in nature. Likewise, a request is for appointment of a Chartered Accountant. Further seeking restraint order against the Respondent not to account false entries in the Account Books. All these instances referred from the Main Petition thus indicate that the issue raised is continuing in nature. A distinction is therefore visible that in a situation when no specific period for filing a Petition is prescribed in the Companies Act then the period of three years is unwarranted. This very bench has taken a view in the case of Miscellaneous Application No. 90 of 2016 in CP No. 18/241/NCLT/MB/MAH/2016 between M/s. M.C. Davar Holding Private Limited v/s. M/s. Aurosagar Estates Private Limited Ors. order dated 10th March, 2017 wherein it is held as under:- 3.1 The second strong objection of the Respondent to the Application is that the alteration in AoA of Respondent No. 1 Company took place way back in the years 2008 and 2012. The ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 6540-44 of 2003, decided on August 14, 2003. 2. Raghu Thilak D. John Versus S. Rayappan Others. Supreme Court Cases (2001) 2 Supreme Court Cases 472 (Before K.T. Thomas and R.P. Sethi, JJ.) Civil Appeal No. 787 of 2001, decided on January 23, 2001 5. On both the issues - (i) whether under the facts and circumstances an amendment is legally permissible and (ii) whether the amendment is barred by limitation?- arguments of both the sides were heard at considerable length. The question of limitation shall be addressed first. 5.1 The law laid down under the Companies Act, 2013 is by enactment of Section 433 under the title Limitation . This Section prescribes:- Limitation 433. The provisions of Limitation Act, 1964=3 (36 of 1963) shall, as far as may be, apply to proceedings or appeals before the Tribunal or the Appellate Tribunal, as the case may be. 5.2 The phrase emphasized during arguments from the side of the Applicant is as far as may be . This phrase has wide effect on deciding the issue of applicability of the provisions of the Limitation Act, 1963 because undisputedly conferring large power and unfettered discretion to NCLT The dominant purpose of int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is appropriate to clarify that if through an amendment a fresh cause of action arises or a fresh claim is made, then such an amendment may not be allowed to carry out. 5.4 To resolve this controversy, perused Order VI Rule 17 of the Code of Civil Procedure, 1908, wherein Amendment of pleadings are prescribed, which says that Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner as may be jest and necessary for the purpose of determining the real questions in controversy between the parties. It a trite law that this exception is prescribed to facilitate the proceedings, if found necessary and helpful in determining the question in controversy. The amendment must not be allowed if it would result in introducing a new case or a fresh cause of action. It can also not be allowed if it would allegedly change the very nature of the Suit. 5.5 Keeping brevity in mind, to sum up the controversy, it can be safely adjudged that while deciding such type of prayers a Tribunal can avoid to adopt a hyper-technical approach. Instead, a liberal approach can facilitate the speedy disposal of pending disputes. Sometimes, technicalities h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed u/s. 241 of the Companies Act, 2013 i.e. under the Chapter Prevention of Oppression and Mismanagement , which has not concluded or stopped or exhausted in this case in a particular year, rather in continuance; hence out of question of period of limitation. Be that as it is, the issue of applicability of Limitation Act is open as far as the maintainability of the main Petition is concerned. 5.8 Inter alia, as a result, the Application seeking permission to carry out the amendment (MA 90/2016) is hereby allowed with a direction to serve the Amended Petition to the other side within 15 days on receipt of this Order. Thereafter, the litigants are directed to complete the pleadings earliest possible. The Petition is now listed for hearing on 10th April, 2017. The stay or any Interim Relief shall remain in continuance till the next date of hearing as pronounced. 5. In support of the already expressed view it is also worth to place reliance on a decision of Hon'ble Madras High Court pronounced in the case of A Brahmaraj vs. Sivakumar Spinning Mills Pvt. Ltd., Tirunelveli-6 Others (Refer supra, wherein it was held as under:- There could, therefore, be no doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
