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2022 (4) TMI 1003 - Tri - Companies LawApplication for condonation of delay of 1332 days - Seeking restoration of petition - ex-parte order or not - HELD THAT - 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 in ESHA BHATTACHARJEE VERSUS MANAGING COMMITTEE OF RAGHUNATHPUR NAFAR ACADEMY AND OTHERS 2015 (1) TMI 1053 - SUPREME COURT has also held that increasing tendency to perceive delay as a non-serious matter requires to be carved. 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. 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 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.
Issues Involved:
1. Condonation of delay in filing the restoration application. 2. Validity of the reasons provided for the delay. 3. Applicability of the Limitation Act and principles of law regarding delay. 4. Examination of the Applicant's conduct and bona fides. 5. Evaluation of the Respondents' objections and supporting judgments. Issue-wise Detailed Analysis: 1. Condonation of delay in filing the restoration application: The Applicant filed a Miscellaneous Application under Rule 15 of NCLT Rules, 2016, seeking condonation of delay in filing a restoration application under Rule 48 of NCLT Rules, 2016. The Company Petition TP No.13/397/398/GB/2016 [CP No.186 of 2013] was dismissed in default on 13.07.2017. The Applicant sought condonation for a delay of 1332 days. 2. Validity of the reasons provided for the delay: The Applicant cited several reasons for the delay, including misinformation about the hearing date, the sudden illness and death of her father-in-law, financial and management issues at a hospital, her husband's severe health condition requiring surgery in the USA, and her own health issues exacerbated by the COVID-19 pandemic. The Applicant argued that there was no inaction, negligence, or lack of bona fide on her part and that sufficient cause existed for the delay. 3. Applicability of the Limitation Act and principles of law regarding delay: The Applicant argued that Section 433 of the Companies Act, 2013, which makes the provisions of the Limitation Act, 1963, applicable to the Act, should not apply rigidly to cases of Oppression and Mismanagement. The Applicant contended that acts of Oppression and Mismanagement are continuing offenses, and each act gives rise to a fresh and continuous cause of action. The Applicant cited Section 22 of the Limitation Act, 1963, which provides that in cases of continuing breach of contract or tort, a fresh period of limitation begins at every moment the breach or tort continues. 4. Examination of the Applicant's conduct and bona fides: The Respondents argued that the Applicant had not only failed to explain the inordinate delay but had also made false and incorrect statements. They pointed out that the Applicant was actively pursuing other legal proceedings in various forums during the period in question, contradicting her claims of being unable to act due to personal and family health issues. The Respondents contended that the Applicant did not approach the Tribunal with clean hands and was not entitled to any discretionary relief. 5. Evaluation of the Respondents' objections and supporting judgments: The Respondents referred to several judgments to support their objections, emphasizing the importance of the Law of Limitation and the need for a strict approach in cases of inordinate delay. They argued that the Applicant's claims were false and that the delay was not justified. The Respondents highlighted that the order dated 13.07.2017 was not ex-parte, as the Applicant's counsel was present during the hearing. Order: After hearing both sides and reviewing the records, the Tribunal found that the Applicant did not provide convincing reasons for the delay, especially given her active participation in other legal proceedings during the same period. The Tribunal emphasized the importance of the Law of Limitation and the need for a strict approach in cases of long delays. Consequently, the Tribunal rejected the Applicant's prayer for condonation of the 1332-day delay and dismissed the Miscellaneous Application with no costs.
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