M.K. Shrawat, Member - (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 aware about the shareholding hence not entitled to raise the objection after lapse of so many years. In his opinion it is a settled law that Petition filed for "Oppression and Mismanagement" if suffers from delay and laches is barred by limitation. In support he has cited a decision of NCLT, Principle Bench, New Delhi pronounced in the case of M/s. ABRO Technologies Pvt. Ltd. vs. M/s. Delhi Warehousing Pvt. Ltd. & Ors. (CP No. 41(ND)/2016 Order dated 22/12/2016. Reliance was also placed on following two decisions:- (i) Petitioner: Kamlesh Babu & Ors. v/s. Respondent: Lajpat Rai Sharma & Ors. (Appeal (civil) 2815 of 2008) Judgement dated 16th April, 2008. (ii) Praveen Shankaralayam v/s. Elan Professional Appliance (P) Ltd.,2016 76 taxmann.Com 290 (NCLT-New Delhi) Judgement dated 20th October, 2016.
(3.) From the side of the Respondent/Petitioner it is pleaded 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 be' the question of limitation required to be examined on the facts of each case. In this case, according to him, the "Oppression as well as Mismanagement" of the company is continuing therefore in the absence of any limitation period prescribed under the Act, it is legally not possible to reject the Petition on the ground of maintainability. He has further argued that the certification was made on para 16 of the petition. The said certification has not been challenged. It is not legally permissible to challenge now that the petition was not within the prescribed time of limitation. This declaration was very much in the notice of the Respondent but so far not objected in the Reply. The act of "Oppression and Mismanagement" is continuous hence the question of limitation do not arise in this case. The question of limitation is based upon law and facts of each case, he has pleaded. According to Ld. Advocate as per Order VIII Rule II of CPC the defendant should have raised in his pleadings the issue of maintainability. Now at this final stage should not have taken the opposite party by surprise. In this case no such proper objection was raised. The reliance was placed on the following decisions:- MADRAS HIGH COURT A. Brahmaraj v/s. Sivakumar Spinning Mills Pvt. Ltd., Tirunelveli-6 & Others;