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TMI Blog2008 (7) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... treated as having been filed in time, there is no ground to interfere with the aforesaid order of the BIFR on merits. - WRIT PETITION (CIVIL) NO. 2207 OF 2007 - - - Dated:- 10-7-2008 - MUKUL MUDGAL AND V.K. SHALI, JJ. Maneesha Dhir and Preeti Dalal for the Petitioner. Ajay Kumar Tandon, V.K. Tandon ,V. Seshagiri, A. Mariarputham, Anurag Mathur, Mr. Indrani Mukherjee and Mr. Chandrani Mukherje e for the Respondent. JUDGMENT Mukul Mudgal, J . This writ petition challenges the order of AAIFR dated 21 February, 2007, dismissing the appeal preferred by the petitioner on the ground of limitation. The order of the BIFR confirmed its earlier order dated 2 January, 2002 to wind up the company under section 20(1) of the Sick Industrial Companies (Special Provisions) Act (hereinafter referred to as the SICA) and further directed that the opinion be forwarded to the concerned High Court for necessary action in accordance with law. The company was also restrained under section 22( b ) of SICA, from disposing of or alienating any of its fixed assets and current assets without specific prior approval of the BIFR and the charge holders until the appointment of an O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 22A of the Act that the company should not dispose of or alienate in any other way any of its fixed assets and current assets without specific prior approval of the BIFR and the shareholders till such time as an Official Liquidator was appointed by the concerned High Court. 4. 4 March, 2004, was the date of the impugned order, which order was admittedly passed in the presence of the consultant of the petitioner company. The certified copy of the said order was applied for the first time on 19 May, 2004 The appeal was thereafter filed before AAIFR on 4 June, 2004. Reliance was placed by Ms. Maneesha Dhir, the learned counsel for the petitioner, on regulation 13 of the BIFR Regulations, 1987, which reads as follows: 13. Service of notices or other documents. - (1) Every notice or other document required to be served on or delivered on any person maybe sent by registered post addressed to the person or his agent empowered to accept service at the address furnished by him for service or at the place where the person or his agent ordinarily resides or carries on business or personally works for gain, and every notice or other document required to be delivered to or fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner: 7. We find from records that the impugned order was passed on 4.3.2004 in presence of the representative on behalf of the appellant. The application for certified copy of the impugned order was submitted on 19.5.2004, although the impugned order dated 4.3.2004 was issued to all concerned including the appellant by the Board on 24.3.2004 and the appellant ought to have received the same in the normal course shortly after 24.3.2004 which can be presumed from the provision under section 114 of the Indian Evidence Act and Illustration ( f ) thereof. 7. On the basis of the above reasoning, the appeal was dismissed as being barred by limitation. 8. We have heard the learned counsel for the petitioner who relied upon the judgment of the Hon'ble Supreme Court in Puwada Venkatesara Rao v Chidamna Venkata Ramana (1976) 2 SCC 409. The relevant position of law laid down by the Hon'ble Supreme Court in the said judgment reads as follows: 10. The two decisions are reconcilable. The Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence. In the Bombay case, the presumption had been held to have been rebutted by the evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that the presumptions could not be dislodged by evidence in rebuttal. It was not seriously disputed that the presumption may be rebutted but the real controversy between the parties turns on the question if a bare statement on oath by the tenant denying the tender and refusal to accept delivery was sufficient to rebut the presumption. This question to my mind must be answered in favour of the tenant because by making such a statement on oath, the tenant has really produced the best possible evidence he could. The presumption raised is with regard to the tender to him of a postal cover and refusal by him of its delivery. The best he could do is to make a statement on oath that no such tender was ever made to him and there was, therefore, no question to refuse the delivery. What other evidence could be possibly given in such a case Such an evidence would, to my mind be sufficient to shift the onus to the landlord to establish actual tender and refusal to accept delivery, inter alia, by producing the postman concerned. In our view the above position does not support the pleas raised by the learned counsel for the petitioner as the application for certified copy was filed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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