2017 (3) TMI 1893 - HC - Indian Laws

Time Limitation - actual infringement for a right to sue to accrue - Section 9A of the Code of Civil Procedure 1908 - HELD THAT - The evidence of Dhar on this is entirely unconvincing. He claims to have known nothing of this till he was told about these filings by Madhukar whose evidence was not led. We do not know why. This is surely no basis on which to proceed on a mixed question of fact and law. The plaint says that the 2002 filings were ones that Messer Holdings saw on 26th April 2005. There is nothing at all to support this. There is nothing to explain why from 2002 to 2005 with all these litigations at various stages Messer Holdings did not check these filings. In 2003 Messer Holdings filed Appeal No. 855 of 2003 and demanded disclosure of the Settlement Agreement. Messer Holdings is a stranger to the Settlement Agreement. It is of no consequence to Messer Holdings whether that document is cancelled or not; it must get a declaration that it is not bound by that document (to which it is not a party). The case cannot therefore fall under Article 59 at all. Even after holding that the prayers as time barred the present suit have to be numbered as a Commercial suit. Registry is directed to have that done. All the requirements of the Commercial Courts Commercial Division and Commercial Appellate Division of High Courts Act 2015 will apply. Ordinarily this would mean the application of the amended provisions of Sections 35 and 35A of the CPC (as amended by the Commercial Courts Act) and that in turn would mean that costs must follow the event. The proviso inserted by the amendment requires me to give reasons for not imposing costs. Application disposed off.

Summary

Issues Involved:
1. Whether any of the reliefs claimed are barred by limitation.
2. The frame of the suit.
3. Litigation history and background.
4. Pleadings and evidence.
5. Rival submissions and findings.

Detailed Analysis:

A. The Preliminary Issue:
1. Issue: Whether any of the reliefs claimed are barred by limitation.
2. Finding: The court rejected the Plaintiff's suggestion that limitation cannot be a preliminary issue, citing the Supreme Court decision in *Foreshore Co-operative Housing Society Ltd v Praveen D Desai & Ors.* The court held that prayers (q) to (u) are time-barred as the Plaintiff knew of the Ruias' claim to the shares by 2000 or 2001, which represented a clear threat to their rights.

B. The Frame of the Suit:
3. Suit Details: The suit concerns 75,001 shares of the 1st Defendant company. The Plaintiff seeks declarations of beneficial ownership, registration of shares, and cancellation of a 2002 Settlement Agreement.
4. Parties Involved: The 1st Defendant is a public limited company dealing in industrial gases. Defendants Nos. 2 to 9 are individuals and entities within the Ruia family. Defendant No. 10 is a German company, Griesheim. The Plaintiff, Messer Holdings, is a subsidiary of Griesheim.
5. Relief Sought: The Plaintiff challenges the reversion of shares from Griesheim to the Ruias, claiming beneficial ownership and seeking to cancel the Settlement Agreement of 5th December 2002.

C. Litigation History & Background:
6. Key Agreements:
- 1995: Share Purchase and Cooperation Agreement (SPCA) between Griesheim and Goyal Gases.
- 1997: Share Purchase Agreement (SPA) between Griesheim and the Ruias.
7. Disputes:
- 1998: Supreme Court restrained Griesheim from registering shares in its name.
- 2000: Ruias filed a suit claiming rights to the shares and sought to implead Messer Holdings.
- 2001: Ruias filed a second suit seeking rescission of the SPA with Griesheim.
8. Settlement:
- 2002: Griesheim and the Ruias entered into a Settlement Agreement, reverting shares to the Ruias.
- 2005: Messer Holdings received a copy of the Settlement Agreement.

D. Pleadings and Evidence:
9. Plaintiff's Claim: The Plaintiff argues that the suit is within limitation as they only became aware of the Settlement Agreement in 2005. They claim beneficial ownership of the shares and seek to invalidate the reversion of shares to the Ruias.
10. Evidence: The Plaintiff led evidence through Mr. KK Dhar, who testified about the transfer of shares and the subsequent discovery of the Settlement Agreement.

E. Rival Submissions and Findings:
11. Plaintiff's Argument: The Plaintiff argues that the cause of action arose in 2005 upon discovering the Settlement Agreement, making the suit timely under Article 59 of the Limitation Act.
12. Defendant's Argument: The Defendants argue that the Plaintiff's right to sue arose in 2000 or 2001 when the Ruias filed suits challenging the Plaintiff's title to the shares.
13. Court's Finding: The court held that the right to sue accrued when the Plaintiff became aware of the Ruias' suits, representing a clear threat to their title. The suit is governed by Article 58, which provides a three-year limitation from the date the right to sue first accrues. Consequently, the prayers (q) to (u) are time-barred.

Conclusion:
The court concluded that prayers (q) to (u) in the suit are barred by limitation as the Plaintiff's right to sue accrued in 2000 or 2001. The remaining prayers (v) to (z) are within time, but their maintainability depends on the Plaintiff's ability to establish ownership and beneficial interest in the shares. The preliminary issue is disposed of accordingly, and the suit is to be numbered as a Commercial suit.