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TMI Blog2019 (11) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... , the plea raised by the Applicant/Respondent No. 7 in the Interlocutory Application that the Company Petition is barred by limitation is required to be examined only after looking into the averments made in the Company Petition and any affidavit filed in reply to the Company Petition. Since limitation point is to be viewed from mixed question of law and fact, therefore at this preliminary stage it cannot be decided that the Company Petition is barred by limitation. However, this point of limitation can be examined at the time of final hearing. - I.A. No. 30 2019 in CP 69/KOB/19 - - - Dated:- 25-11-2019 - Ashok Kumar Borah, Member (J) And Veera Brahma Rao Arekapudi, Member (T) For the Appellant : P. Gopinatha Menon, Senior Advocate For the Respondents : Joseph Kodianthara, Senior Advocate ORDER 1. This Interlocutory Application has been filed by the applicant who is the respondent No. 7 in the main Company Petition No. 69/KOB/2019. This IA is for the limited purpose of considering the plea of limitation as preliminary issue in the said Company Petition and connected cases. 2. The applicant inter alia stating that the petitioners (respondents in this IA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claims should not be allowed to be agitated in petitions under Section 241 and 242 of the Companies Act. Section 433 of the Companies Act, 2013 is clear in its intent, leaving no room for confusion or doubt as to the applicability of the provisions of Limitation Act, 1963. The Applicant further submits that this question may also be relevant in the context of the Interim Directions dated 29.8.2019 and 2.9.2019 issued by this Tribunal. According to the Applicant, in compliance with the aforesaid orders of this Tribunal, the 1st Respondent in the Company Petition has already provided copies of all documents pertaining to the period of three years immediately prior to the date of presentation of the petition for authentication by the Advocate Commissioner appointed by this Tribunal. The question of examining or providing of copies of documents for the prior period will also depend on the decision to be taken by this Tribunal on the question of limitation and the period for which an enquiry into the alleged oppression and mismanagement can be maintained before this Tribunal. 6. The applicant, thus, submits that in the instant Company Petition, the allegations of oppression and mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent: there must be a continuing course of oppressive conduct, which must be continuing at the date of the hearing of the petition. Further the conduct must be such as to be oppressive to the petitioner in his capacity as a member; whatever remedies he may have in respect of exclusion from the company's business by being dismissed as an employee or a director, he will have none under the provisions relating to oppression. On the other hand, these provisions are not confined merely to conduct designed to secure pecuniary advantage to the oppressors; they cover the case of wrongful usurpation of authority, even though the affairs of the company proper in consequence. 11. It is also submitted by the Respondent/petitioner No. 1 that it is an established principle of law that the question of limitation is one of a mixed question of fact and law and cannot in such circumstances be heard at an interim / preliminary stage and it can be considered while granting the relief in the main company petition. 12. Similarly, the learned Senior Counsel for the Respondent/Petitioner No. 1 has relied upon the following Judgements to substantiate his plea to reject the Interlocutory Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by the petitioners and the averments contained in the Company Petition. In such circumstances, there is no requirement or justification for authenticating documents prior to the financial year 2017-18. Further, considering that the Ist respondent company was incorporated as early as 18.1.1988, any such exercise would be very time consuming and a waste of judicial resources. 16. However, learned senior counsel for the petitioner (respondent herein) has made submissions stating that the respondent (applicant herein) may be directed to give all the available records with the company for authentication by the Advocate Commissioner appointed by this Tribunal and he further submitted that certification of non-availability/destruction of records may also be done by the respondent company and the same be furnished to the Advocate Commissioner appointed by this Tribunal. 17. On 2.9.2019, after hearing both the parties on the IA, this Tribunal modified its Order dated 29.8.2019 as under: A. Shri Sankar P. Pankcker, Member, Southern India Regional Counsel, ICAI, Insolvency Professional residing at Jaikunj, Chittoor Road, Kochi 682 035 is hereby appointed as Advocate Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and these activities were happening since long and continued till date of filing the main company petition. As such these are continuous acts of oppression and mismanagement occurs till date. Accordingly, he submitted that the main company petition was filed seeking various reliefs in the interest of justice. He therefore, claimed to dismiss the IA. 22. In the light of the above averments of both the learned senior counsels and to arrive at a conclusion, we have referred to the Judgement of Hon'ble Supreme Court in the case of Ramesh B. Desai others Vs. Bipin Vadilal Mehta others [ (2006) 5 SCC 638) which was as follows: 13. Sub-rule (2) of Order XIV Rule 2 CPC lays down that where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna vs. Brig. F.J. Dillon and it was held as under: (SCR p.421) Under Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. This principle would be equally applicable to a Company Petition. Therefore, unless it becomes apparent from the reading of the Company Petition that the same is barred by limitation the petition cannot be rejected under Order VII Rule 11(d) CPC. 23. In the light of the above Judgement, it is very clear that when a question deciding limitation occurred, it cannot solely be decided as a question of 'fact alone. We have to look into the contents and circumstances of the main petition and decide whether this can be decided based on facts alone or there involved a question of fact and law . After going through the main Company Petition and the pleadings in the IA, we are convinced that the main company petition does have a mixed question of law and fact . Therefore, the plea of the applicant that the Company Petition is barred by limitation is to be viewed as a mixed question of facts and law for which it is necessary to peruse the relevant facts and the law. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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