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TMI Blog2019 (11) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... y Petition. Pertinently, till October 2017, no such grievances were raised by the petitioners till 2017. 3. According to the applicant/respondent No. 7, Section 433 of the Companies Act, 2013 unequivocally provides that the provisions of the Limitation Act, 1963 shall be applicable to proceedings or appeals before the Tribunal or the Appellate Tribunal. The Hon'ble Supreme Court in B.K. Educational Services Pvt Ltd Vs. Parag Gupta and Associates, reported in AIR 2018 SC 5601 has settled the question as to the applicability of the provisions of the Limitation Act, 1963 and has declared that the provisions of the Limitation Act, 1963 shall be applicable to the proceedings under the NCLT. 4. The Applicant refers the Judgements of the NCLT, Principal Bench and the NCLAT in Esquire Electronics Inc. and Others Vs. Netherlands India Communications Enterprises Ltd and Others, reported in 2016 135 CLA 267 and 2018 143 CLA 433 respectively, wherein the Principal Bench held that "It is a well settled principle of law that law comes to the rescue of those who are vigilant about their rights. For measuring the extent of vigilance, the legislature has provided period of limitation under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciates) (ii) Order dated 14.11.2017 in CP No. 16/241 & 242/NCLT/AHM/2016 by NCLT, Ahmedabad (Sangeeta Maheshwari Vs. Premsagar Agricultural Pvt Ltd.. (iii) Judgement dated 15.2.2017 by NCLAT in CA(AT) No. 26 of 2016 (Esquire Electronics Inc. & others Vs. Netherlands India Communications Enterprises Ltd & others (iv) Judgement dated 21.7.2017 by NCLAT in CA(AT) No. 100 of 2017 (Aurosagar Estates Pvt Ltd & others Vs. M.C.Davar Holdings Pvt ltd) (v) Order dated 21.2.2018 by NCLAT in CA(AT) No. 56 of 2018 (Sanjay Goel Vs. Majestic Buildcon Pvt Ltd. 8. In the Counter filed by the respondent No. 1, ie. Petitioner No. 1 in the main Company Petition No. 69/KOB/2019, while contesting and controverting all the averments of the applicant/respondent No. 7, inter alia stating that there is no merit whatsoever in the IA and the said application is itself a ruse to get over the Interim Orders passed by this Tribunal in the above Company Petition with respect to which the applicant/respondent is clearly in contempt on account of intentional non-compliance. 9. According to the Respondent/Petitioner No. 1, a petition filed under Section 241 and 242 of the Companies Act, 2013, which envisag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after hearing both the parties, we have passed an Interim Order on 29.8.2019, which read as follows: "A. Shri Sankar P. Panicker, Member, Southern India Regional Counsel, ICAI, Insolvency Professional residing at Jaikunj, Chittoor Road, Kochi 682 035 is hereby appointed as Advocate Commissioner to authenticate (i) Minutes of the Meetings of the Board of Directors and Shareholders of the Ist Respondent Company that were held from the date of incorporation of the Company till the date of the Petition (ii) Books of Account of the Ist Respondent Company as on date of Petition (iii) Statutory Records/Registers/Books of the Ist Respondent Company as on date of Petition and to receive copies of the above from the Ist Respondent Company. The fee of the Advocate Commissioner is to be decided in consultation with him and to be shared between the parties equally. The Advocate Commissioner is advised to submit his compliance report before next date of hearing, ie. 17.9.2019. B. Respondent No. 2 to 7 are directed to maintain the status quo with regard to the shareholding pattern of the Ist Respondent Company as on date until further orders; and C. The appointment of the 6th respondent as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is relevant to note that the applicant/respondent No. 7 preferred the present IA No. 30 of 2019 raising the question of limitation of the Company Petition while the Interim Orders dated 29.8.2019 and 2.9.2019 of this Tribunal are in force. 19. The question now arises for consideration in this IA is whether the Company Petition is barred by limitation as pointed out by the Applicant/Respondent No. 7. 20. The learned senior counsel for the applicant/respondent No. 7 has argued that on account of introduction of Section 433 in Companies Act, 2013 the provision of Limitation Act 1963 are now applicable on this Petition. Whereas, the learned senior counsel for Respondent/Petitioner No. 1 has argued that the Provision 433 of Companies Act do not apply on each and every case. Rather as per the language of the section 'as the case may' the question of limitation required to be examined on the facts of each case. According to him, the act of "oppression and mismanagement" is continuous, hence the question of limitation do not arise in this case. 21. The main pleading in the Company Petition under consideration is that the reliefs claimed are against the acts of oppression, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit." Though there has been a slight amendment in the language of Order XIV Rule 2 CPC by the Amending Act, 1976, but the principle enunciated in the above quoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the Court to try a suit on mixed issue of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue. In the very same Judgement, the Hon'ble Supreme Court has further held as follows: "19. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im Order on 29.8.2019 and consequently the Applicant/Respondent No. 7 filed the Interlocutory Application with the prayer to modify / clarify the said order and subsequently an Order dated 2.9.2019 was issued by this Tribunal on the said IA, we observe that the Applicant/Respondent No. 7 has not offered their counter memo in the Company Petition till date. 24. We are therefore of the view that since limitation point is to be viewed from mixed question of law and fact, therefore at this preliminary stage it cannot be decided that the Company Petition is barred by limitation. However, this point of limitation can be examined at the time of final hearing. 25. In the light of the above, the Interlocutory Application filed by the applicant (Respondent No. 7 in the Company Petition) raising the preliminary issue of limitation is rejected at this stage. 26. The Applicant/Respondent No. 7 is also directed to file their Counter memo with a copy of the same served to the Respondent/Petitioner No. 1 within one month from the date of issue of this Order. Respondent/Petitioner No. 1 may file his rejoinder, if any, before the next date fixed. 27. This Order will be equally applicable in conn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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