9911796707
TMI Blog2005 (9) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... to be passed, M/s. Transgene already stood merged with M/s. Serum Institute, by reason of an order of amalgamation dated January 31, 2001 passed by the Mumbai High Court in C.P. Nos. 1205 and 1206 of 2000 and as M/s. Transgene stood dissolved and merged with the applicant and was not in existence, no order of winding up could have been passed against M/s. Transgene. In support of his submission that a decree passed against a dead person is a nullity, learned counsel for the applicant placed reliance on the judgment of the apex court in Jangli v. Deputy Director of Consolidation [1982] 1 SCC 478 and of this court in Golla Krishna Murthy v. Golla Yellaiah [2001] 5 ALD 484 and Immadi Laxmi v. Sreyabhilashi Chit Funds [2002] Suppl. 1 ALD 126. 3. He submitted that the applicant came to know of the ex parte order of winding up passed by this court against M/s. Transgene only when they received the notice of the application in C.A. No. 29 of 2005, filed by respondents Nos. 1 and 2, praying to substitute M/s. Serum Institute in the place of M/s. Transgene on January 21, 2003, and in support of his argument that limitation would run from the date of knowledge of the decre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the alleged notices, exhibit A26 dated June 2, 2000 and exhibit A28 dated June 16, 2000, under section 434 of the Companies Act, 1956, sent by respondents Nos. 1 and 2 to the managing director of M/s. Transgene at their Madhuranagar address under exhibits A27 and A29, certificates of posting dated June 2, 2000 and June 16, 2000, are also forged and fabricated documents. At any rate, Sri K. K. Rao, who is alleged to have issued exhibit Al ceased to be the managing director of M/s, Transgene from July 18, 2000. The plea of fraud, as stated above, according to the applicant is sufficient cause, and in the interest of justice and to ensure that an illegality is not perpetrated, he prayed that the delay of 665 days in filing application to set aside the ex parte order of winding up has to be condoned. He placed reliance on the judgments of the Apex Court in Collector, Land Acquisition v. Katiji [1987] 62 Comp. Cas. 370; [1987] 2 SCC 107; [1987] 66 STC 228 (SC), O. P. Kathpalia v. Lakhmir Singh [1984] 4 SCC 66, S. P. Chengalvaraya Naidu v. Jagannath [1994] 1 SCC 1, Balkar Singh v. Jagdish Kumar [2005] 3 SCC 186 and MCD v. State of Delhi [2005] 4 SCC 605 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of winding up by this court. 9. He submitted that this court ordered notice before admission in the company petition on January 16, 2001, and respondents Nos. 1 and 2 had taken out notice to the Himayatnagar address of M/s. Transgene, and M/s. Eagle Poonawalla Industry Ltd., the sister concern of M/s. Serum Institute, redirected the same to Pune, and Sri Deshpande, who happened to be one of the ex-directors of M/s. Transgene having received the notice on February 15, 2001 executed a vakalat before a notary at Pune in favour of Sri G. Venkateswara Rao, advocate, for appearing in the matter, which is also signed by one other director as authorised signatory of M/s. Transgene. Sri G. Venkateswara Rao, advocate, appeared in the matter on February 19, 2001 and took time. Later he withdrew and another advocate, Sri C. Kodandaram filed vakalat on April 4, 2001, which was also executed by Sri Deshpande. The said advocate took time for filing counter, and thereafter, the matter was adjourned on five occasions. The company petition was admitted by this court on August 28, 2001, and proof of paper publication was filed on November 8, 2001, and ultimately, after recording the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d this is evident from the certificate of registration, issued by the Registrar of Companies, Hyderabad, for shifting of M/s. Transgene from Hyderabad in Andhra Pradesh to Pune in Maharashtra on December 27, 2000, and as such, this court has jurisdiction to entertain the company petition. He denied the contention of the applicant that respondents Nos. 1 and 2 played fraud upon the court and contended that it is M/s. Transgene and its directors, who have played fraud upon the court. 12. He thus submitted that the applicant though had knowledge of the proceedings before this court through one of its directors / yet having entered appearance did not contest the matter, and as such, prayed that the condone delay application be dismissed, and more so when the applicant failed to show sufficient cause. 13. Replying to the stand taken by the counsel for respondents Nos. 1 and 2, learned counsel for the applicant submitted that respondents Nos. 1 and 2 were aware of the orders of winding up passed by the Mumbai High Court, and yet they proceeded with the company petition as if they do not know anything about the amalgamation of M/s. Transgene with the applicant. He submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal or making the application within the period prescribed. 16. The provisions of section 5 of the Limitation Act are discretionary in nature, in that, in order to condone the delay for making an application beyond the period prescribed, the party making the application has to satisfy the court that he had sufficient cause for not making the application in time, and unless and until the court is satisfied that the party making application had sufficient cause for not making the application in time, the delay would not be condoned. There are dual line of cases, one line of cases insisting that each day's delay must be explained and the other line of cases insisting that a liberal approach should be adopted in the matters of condoning the delay. There is no doubt that "every day's delay must be explained" does not mean that a pedantic approach should be made, and more so when section 5 of the Limitation Act itself says that the party making the application beyond the prescribed time should have had sufficient cause for not filing the application in time It may be noticed whether in the instant case the applicant had sufficient cause for not making the application within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransgene in the company petition on February 19, 2001, and took some time for filing counter. However, for the reasons best known to them, Sri. G. Venkateswara Rao, had withdrawn his vakalat. Thereafter, Sri Deshpande, once again executed another vakalat in favour of another advocate, namely Sri C. Kodandaram, for representing on behalf of M/s. Transgene. The said advocate, filed vakalat on April 4, 2001, and sought some time, for filing counter, and at his request the matter was adjourned to April 18, 2001, and thereafter, the matter was adjourned from time to time to June 19, 2001, June 26, 2001, July 24, 2001, and August 14, 2001, and as there was no representation on behalf of M/s. Transgene, this, court by order dated August 28, 2001 admitted the company petition, and in terms of the said order, respondents Nos. 1 and 2 had also taken out paper publication on September 14, 2001. The proof of paper publication was filed by respondents Nos. 1 and 2 on November 8. 2001. Thereafter, evidence was let in by them on November 23, 2001. Though M/s. Transgene was represented by a counsel, as there was no representation on their behalf despite granting several adjournments, this court by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any petition filed by respondents Nos. 1 and 2, and they being aware of the proceedings in the company petition, the applicant now cannot be allowed to contend that they are not aware of the proceedings in the company petition and the ex parte order of winding up passed by the court therein on December 18, 2001. As the company is run and managed by its board of directors, the fact that one or two of it directors are aware of the proceedings itself is sufficient to say that the applicant was aware of the proceedings in company petition and the ex parte order of winding up passed therein by this court on December 18, 2001, and more so, having regard to the actions taken by the said directors in prosecuting the company petition, as stated above. In that view of the matter, it has to be held that the applicant was aware of the proceedings in the company petition as also the ex parte order of winding up passed therein by this court on December 18, 2001. 21. Even assuming that the applicant came to know of the company petition filed by respondents Nos. 1 and 2 and the ex parte order of winding up passed therein by this court on January 18, 2001, only when they received the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistry is not numbering my application stating that there is a delay in filing the said application. I say that there is no delay in filing the application as the said application has been filed immediately after Serum Institute of India Ltd. was served with notice of this honourable court praying for substitution of Serum Institute of India Ltd., in place of Transgene Vaccine Ltd. I say that as and by way of abundant caution and so as to avoid further delay I am filing this application that delay if any in filing the application may kindly be condoned." 23. Thereafter, the applicant though in paragraphs 3, 4, 5, 6 and 7 of the affidavit pleaded that the applicant was not a party to the aforesaid proceedings in the company petition, that the applicant is sought to be adversely affected by the ex parte order of winding up, that respondents Nos. 1 and 2 failed to comply with the statutory rules 27, 28, 29, 30 and 31 of the Companies (Court) Rules, 1959 as framed by the Central Government (wrongly mentioned in the affidavit as honourable Supreme Court of India), and that the application filed by respondents Nos. 1 and 2 is likely to evoke serious civil consequences for the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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