9911796707
TMI Blog2003 (10) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... offered their underwriting and/or procurement services for the public issue of the complainant in February 1995. 3. The public issue of the petitioner s company was floated on 14th February, 1995 and was closed on 18th February, 1995. However, as the subscription was below 90% within 30 days of the closing of public issue, the public issue devolved on the underwriters. The underwriters failed to make payment of the underwriting amounts within 30 days as a result of which within 60 days of the closure, petitioner M.S. Shoes could not collect 90% of the public issue amount. Under section 69 of the Companies Act, 1956, if within 60 days at least 90% of the public issue amount is not procured by the company, either by subscription, by public and/or by devolvement, the money collected by the Company in the public issue is to be returned to the public. According to the petitioner, the underwriters failed to honour their underwriting commitments, the petitioner M.S. Shoes had to return the entire amount received from the public and consequently suffered heavy losses and damages due to non-performance of the underwriting obligations by the various respondents. 4. In the underwritin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liminary objection with regard to the maintainability of the compensation applications. It was submitted that section 12B of the MRTP Act permits for redressal of dispute giving rise to the claim of compensation on alleged breach of contract between the parties from two Forums but the petitioner has to choose either of the two Forums and cannot be permitted Forum shopping under the garb of provisions of section 12B of the Act. Since the petitioner has already approached this Court in Arbitration proceedings, therefore, the petitioner is not entitled to file these proceedings. The Commission has dismissed the cases being barred by limitation. 12. Mr. Manmohan, learned senior counsel appearing for the respondent submitted that the Commission s judgment is sound and it based on the ratio laid down by the judgments of the Apex Court. In support of his submissions that these petitions cannot be entertained because the petitioner has not approached the Commission within reasonable time. Reliance has been placed on the judgment of the Navin J. Shah s case ( supra ). In this case the Court observed that for filing a claim petition at the relevant time, there was no period of limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er any Act to a Civil Court. 15. Reliance has also been placed on one of the decisions of the Commission passed in Haryana Flour Mills (P.) Ltd. v. Haryana State Industrial Corpn. [CA No. 26 of 1998 dated 21-12-2000]. The Court in this judgment observed : "No doubt, no specific provision of law of limitation has been made applicable to the provisions of the MRTP Act, but the Hon ble Supreme Court in the case of Corporation Bank and Others v. Navin J. Shah 2000 CTJ 81 (SC) (CP) held that even if the Legislature has not provided any limitation for claiming money relief, the claimant must approach the concerned Court expeditiously within a reasonable period and the reasonable period of time is to be computed by taking aid of Article 137 of the Limitation Act, which prescribes limitation of 3 years. As such, this decision is binding on us and it has to be seen that whether the claim, as set out and filed by the petitioner on 5-12-1997 against the respondent HSIDC, is well within the period of limitation and as such maintainable." 16. Reliance has also been placed on another judgment passed by the Commission in Rajender Jaina Towers (P.) Ltd. v. Lloyd Sales Corpn. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calls for interference under Article 136 of the Constitution. Hence we dismiss the petition." 20. In State of Kerala v. V.R. Kalliyanikutty [1999] 3 SCC 657 the Court observed that when the right to file a suit under section 70(3) is expressly preserved, there is necessary implication that the shield of limitation available to a debtor in a suit is also preserved. The Court further observed that it would be ironic if an Act for speedy recovery is held as enabling a creditor who has delayed recovery beyond the period of limitation to recover such delayed claims. 21. Replying to the preliminary submission, Mr. Rajiv Nayyar, Sr. Advocate submitted that in Navin J. Shah s case ( supra ) the Court did not notice earlier judgments of the Apex Court and this judgment requires re-consideration. He placed reliance on France B. Martins v. Mrs. Masalda Maria Teresa Rodrigues [1999] 4 Comp. LJ 32 in which Their Lordships of the Supreme Court observed that when Legislature in its wisdom thought it appropriate not to prescribe the period of limitation for proceedings under the Act, the Court cannot apply the provisions by implication. 22. Reliance has also been placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved that Act in which no statutory limitation has been prescribed that does not mean that claim petition can be entertained anytime. The ratio of the judgment is that the claim ought to be made within reasonable period. What is the reasonable time to lay a claim depends upon the facts of each case. In the legislative wisdom, three years period has been prescribed to lay a claim for money. The Court observed that the period of three years is the reasonable period to raise a claim in a matter of this nature. The claim of the petitioner is in the nature of a money claim and on the analogy of the Navin J. Shah s case ( supra ) the claim ought to have been filed within the statutory limit for filing such claims by way of civil suits, i.e., three years. In the Navin J. Shah s case ( supra ) Their Lordships of the Supreme Court examined the facts of the case in detail and thereafter observed that the claim involved in that case was essentially for money. In this view of the matter, the Court observed that the period of three years is the reasonable time to raise a claim in a matter of this nature. This is also in consonance with the provisions of the Limitation Act. 27. Lear ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
