TMI Blog2022 (4) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... o pursue or take steps in the said CP. But on the other hand it is found from the records made available from the Respondents that the Applicant was perusing other proceedings going on in different Fora including the Hon ble High Court at Kolkata and Gauhati, Civil Court at Jorhat and NCLT, Guwahati Bench, during the period from 2018 to 2021. There are no convincing reasons submitted by the Applicant to condone the inordinate delay of 1332 days - application dismissed. - M. A. (COMPANIES ACT) No.05/2021 In TP No.13//397/398/GB/2019 [CP NO.186 OF 2013] - - - Dated:- 8-4-2022 - Hon ble Shri Rohit Kapoor, Member (J) And Hon ble Shri Prasanta Kumar Mohanty, Member (T) FOR THE APPLICANT - MR. DHRUPAD DAS, ADVOCATE FOR THE RESPONDENTS - MR.RATNAKO BANERJEE, SR. ADVOCATE MR. D. SHARMA, ADVOCATE ORDER [ Per : Mr. Prasanta Kumar Mohanty, Member ( T ) ] 1. The present Miscellaneous Application is filed by the Mrs. Sharmila Shetty, the applicant herein under Rule 15 of NCLT Rules, 2016 praying for condonation of delay in filing the application under Rule 48 of the NCLT Rules, 2016 for restoration of the Company Petition TP No.13/397/398/GB/2016 [CP No.186 of 2013] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up with her Counsels but she did not get any satisfactory reply. 2.5 Subsequently, around 26.11.2018 the husband of the Applicant Mr. Vijay Shetty was finally diagnosed with a serious Ascending Thoracic Aneurysm and finally an Angiogram was done on 07.01.2019 and surgery was scheduled for 21.01.2019. Unfortunately, the lifesaving treatment that was recommended for Mr. Vijay Shetty was not readily available in Indian Hospitals due to which the Applicant along with her husband had to leave for United States of America in January, 2019 and after surgery at the Hospital at Penn Medicine in Philadelphia, it took a long time for his recovery. As he was recovering, she was following up with the Counsels telephonically and she was assured that they would do the needful. 2.6 As it was an extremely life-threatening surgery, the husband of the Applicant was banned from any kind of travel and the Applicant had to stay back in the United States of America to support and help her husband till his recovery. It was only on 21.08.2019, the Counsel of the Applicant appointed to represent her interest before the Hon ble Tribunal had shared a draft of the Restoration Application proposed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Company Petition in default. Further, it is settled principle of law that whether the delay is for a short period or a long period is of no consequence, and as long as sufficient cause is shown, long delay can be condoned and the Hon ble Tribunal must use its discretion judiciously to appreciate the facts placed on record in the present Application and take a liberal view while considering the facts constituting the sufficiency of the cause on the basis of which condonation of delay is sought. Further, applicability of Limitation Act, 1963 does not put a bar on institution of an Oppression and Mismanagement case under the Companies Act, 2013. 3.2 Section 433 of the Companies Act, 2013 makes the provisions of the Limitation Act, 1963 applicable to the Act. However, it befits the Applicant to point out that Section 433 of the Act cannot be applied to each and every section of the Act, especially to the cases of Oppression and Mismanagement. Moreover, as per language of Section 433 as the case may be the question of limitation required is to be examined on the facts of each case. 3.3 In contrary to the other provisions in the Act, the provisions for filing a petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing through video conferencing. Heard the learned Counsels appearing for both the sides. The Petitioner and the Respondent are directed to file a written submission in 5/6 pages citing relevant judgments within 10 days from today exchanging the copy thereof to each other. 2. Matter is reserved for Orders . 5. Thereafter, on 18.01.2022, the Respondents No.1 and 2 have filed their brief notes on submissions stating that- 5.1 The CP which was earlier numbered as C.P.No.186 of 2013 was filed by the applicant/petitioner under Section 397 and 398 of the Companies Act, 1956 before the CLB, Kolkata Bench. Thereafter, the CP was transferred to this Hon ble Bench and was renumbered as T.P. No.13/397/398/GB/2016 and the same was dismissed by this Bench vide its Order dated 13.07.2017 in presence of the learned Advocate representing the Petitioner/ Applicant and Respondents No.1 and 2. 5.2 In July, 2021, the Petitioner/Applicant has filed the present application for condonation of delay of 1332 days for seeking restoration of the CP which was dismissed on 13.07.2017, very belatedly giving no cogent reasons or grounds for seeking condonation. 5.3 The Law of Limitation is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s allegations made against the previous lawyers in their absence. 6. In support of their submissions, the Respondents have referred to the following judgements/citations: i. (2010) 5 SCC 459 Page 465, Para 14 and 15 (Oriental Aromachemical Industries Vs. Gujarat Industrial Development Corporation and Another). ii. (2007) 2 SCC 322 Para 5 (D. Gopinathan Pillai Vs. State of Kerala and Another. iii. (2013) 12 SCC 649 Paras 1, 2, 6, 18, 20, 21 to 23, 26, 29, 31 32 (Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others) iv. 2017 SCC Online Delhi 12750 Para 7 (Mitender Pal Singh Solani Vs. Surender Singh and Anr.) v. SCC Online Madras 722 2009 (1) CTC 319 (C. Raghupathy Vs. C. Govindan and Others) 7. The Applicant has filed her written submissions on 03.02.2022 reiterating the facts stated in the Misc. Application and relied upon the following judgements: i. The Municipal Corporation of Ahmedabad Vs. Manish Enterprises Ltd. reported in AIR 1993 Guj 145 (Para No. 6 7 at page Nos. 36 to 37) ii. N. Balakrishnan Vs. M. Krishnamurthy reported in (1998) 7 SCC 123 145 (Para Nos. 10, 11 and 13 at page 40) iii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. It is settled position that the Law of Limitation is founded on public policy to ensure that the parties seek their remedy without restoring to dilatory tactics. The Hon ble Supreme Court has also laid down the law as to hold that in the case of delay for a short duration, courts may have a liberal approach, but when the delay is inordinate and of a longer duration, court must have a strict approach. The Hon ble Supreme Court in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649, Para 22.4 has also held that increasing tendency to perceive delay as a non-serious matter requires to be carved. 12. Applicant submits that the Order passed by this Bench on 13/07/2017 was ex-parte but it is found from the records made available that the order of July 13, 2017 was not an ex-parte order as submitted by the petitioner. The attendance sheet of this Bench for hearing on 13.07.2017 annexed with shows the presence of the learned Advocates representing the Applicant/Petitioner. 13. The other ground mentioned by the Applicant in the condonation application is that because of illness in her family, the applicant was unable to pursue or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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