2005 (9) TMI 322 - HC - Companies Law

Summary

Issues Involved:
1. Application under Section 5 of the Limitation Act, 1963.
2. Knowledge and awareness of proceedings.
3. Allegation of fraud.
4. Jurisdiction of the court.
5. Delay in filing the application to set aside the ex parte order of winding up.
6. Sufficiency of cause for delay.

Issue-wise Detailed Analysis:

1. Application under Section 5 of the Limitation Act, 1963:
The application was filed by M/s. Serum Institute to condone a delay of 665 days in filing an application to set aside an ex parte order of winding up dated December 18, 2001, against M/s. Transgene Vaccine Ltd. The court emphasized that Section 5 allows for the extension of the prescribed period if the applicant shows sufficient cause for the delay.

2. Knowledge and Awareness of Proceedings:
The applicant claimed ignorance of the winding-up proceedings and the ex parte order until January 21, 2003, when they received notice of an application for substitution. However, it was noted that one of the directors of M/s. Transgene, who later became a director of M/s. Serum Institute, had executed vakalats and engaged advocates to represent M/s. Transgene in the proceedings, indicating awareness of the case.

3. Allegation of Fraud:
The applicant alleged that the ex parte order was obtained by fraud, citing forged documents (exhibit A1, A26, and A28). The court, however, focused on whether the delay in filing the application to set aside the order could be condoned, rather than delving into the merits of the fraud allegations.

4. Jurisdiction of the Court:
The applicant argued that the court lacked jurisdiction as M/s. Transgene had shifted its registered office from Hyderabad to Pune before the winding-up petition was filed. The court found that as of the filing date, the registered office was still in Hyderabad, giving it jurisdiction.

5. Delay in Filing the Application to Set Aside the Ex Parte Order of Winding Up:
The applicant filed the application to set aside the ex parte order on November 17, 2003, which was refused by the Registry due to the delay. The present application to condone the delay was filed on November 22, 2003. The court noted that the applicant failed to take expeditious steps to contest the order despite claiming knowledge of it in January 2003.

6. Sufficiency of Cause for Delay:
The court found that the applicant did not provide sufficient cause for the delay. The affidavit in support of the application lacked detailed reasons for the delay, merely stating there was no delay. The court emphasized that sufficient cause must be shown for each day's delay, and the applicant failed to do so.

Conclusion:
The court dismissed the application to condone the delay of 665 days in filing the application to set aside the ex parte order of winding up, citing a lack of sufficient cause and detailed explanation for the delay.