TaxTMI 
TaxTMI 
2022 (4) TMI 1003
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....el of her Counsel Mr. Amit Vyas from Mumbai to Guwahati to attend on that day, as the Applicant was not in the country at that time. 2.2 The Applicant not being a resident of Guwahati was not in a position to keep check on the Company Petition and thus she had appointed Counsel to safeguard her interest and relied upon the information given to her by them to pursue the Company Petition. However, on 12.07.2017, the Applicant was informed by her Counsels that the matter was listed before this Hon'ble Tribunal on 13.07.2017 and not on 17.07.2017. As no arrangement could be made within such a short period to attend the matter on 13.07.2017, the Company Petition was dismissed in default. 2.3 Upon subsequent enquiry, it emerged that the Counsel at Guwahati had informed the Counsel at Kolkata about the next date of hearing in the Company Petition as 13.07.2017, but for some reasons the Counsel at Kolkata intimated the wrong next date of hearing and consequently, the matter went unattended. The Applicant immediately contacted her Counsel who assured her that a restoration application will be filed within time and the Applicant must not worry about the same and they were accordingly instr....
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....he Applicant immediately, but subsequently, it has emerged that the Application for restoration had not been filed by the Counsels despite the repeated reminders till November, 2019. The Applicant was left with no option but to engage new Counsels and the Applicant along with her husband asked for No Objection Certificates from all the Counsels appointed by her and such Certificates were received by the Applicant only in January, 2020. 2.7 Before the Applicant could effectively instruct the newly engaged Counsels, the Applicant suffered from abdominal pains and became bedridden and disabled her from travelling to India when the world came to an absolute standstill due to Covid-19. 2.8 Owing to the global pandemic Hon'ble Supreme Court on 23.03.2020 passed an order in Suo Moto Writ Petition (C) No.(S) 3/2020 recognising the difficulties being faced by the litigants and their advocates and thus extending the prescribed time of limitation for filing any application/petition/appeal. 2.9 During the shutdown around May, 2020 the abdomen pain of the Applicant got worse and she was unable to get treatment and had to rush to the Emergency Department at Bryn Mawr Hospital on 12.08.2020 an....
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....alleging Oppression and Mismanagement are prima facie perpetual in nature and the prayers sought in the Company Petition are also perpetual in nature. 3.4 Section 22 of the Limitation Act, 1963 provides that in case of continuing breach of contract or in the case of continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or tort, as the case may be, continues. Since, there is no provision stating that an Oppression and Mismanagement case is to be filed within a prescribed time after the cause of action arose is given under the Companies Act, 1956 or the Act, all the averments made by the Applicant in the Company Petition can be agitated by way of a fresh Petition as on today also. However, in the interest of justice and equity, since the Applicant has already diligently pursued the Company Petition before it was dismissed in default, it is humbly prayed that this Hon'ble Tribunal be pleased to condone the delay in filing the Restoration Application. 3.5 The Company Petition seeks reliefs that are perpetual in nature and the causes of action on which the Company Petition is founded is continuing in nature and are very much al....
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....rt must have a strict approach. 5.4 The applicant has not only explained the inordinate and gross delay in filing the application for restoration after three years and 10 months, but has also deliberately made false and incorrect statements. The applicant has not approached this Hon'ble Tribunal with clean hands, and, therefore, is neither entitled to any order for condonation nor any discretionary order, in their favour. The Respondents demonstrated from the records that the applicant has made false statements on oath by alleging that the order of July 13, 2017 was an ex-parte order and also that the applicant was unable to visit India or file application for restoration earlier. 5.5 The other purported ground in the condonation application is that because of illness in her family, the applicant was not active and was unable to pursue or take steps in CP is also false and incorrect and this will appear from the fact that after the Order dated 13.07.2017 was passed, the applicant was very active in other Fora and several proceedings were filed at the instance of the applicant and several pleadings were filed by the applicant in different Fora including the Hon'ble High Court at K....
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....ce of the case may be required, although the application is not made until after the expiry of the time appointed or allowed. 8- Having heard the Learned counsel for the parties, we are of the view that it was always open to the Tribunal to extend the time appointed /fixed by the Rules and the Tribunal was empowered to restore the application in the interest of justice upon the such terms and conditions as may be imposed by the Tribunal." iv. Bhaskar Publication & Allied Industries Pvt. Ltd. Vs. Kishori Devi Agarwal and Ors. [2012 (1) MPHT 57] (Para 16 at page 50) v. Municipal Corporation of Ahmedabad Vs. Voltas Limited and Etc. reported in (1994) 2 GLR 1325 (Para 22 and 30 at page Nos. 64 & 66) vi. Sadashiv Shankar Patil Vs. Warna Agro Pvt. Ltd., being TCP 86/397-398/CLB/MB/MAH/2014 (Para 6 at page 85) vii. Jaswant Rai Arora and Ors. Vs. Bhawani Paper Mills Pvt. Ltd. and Ors. CP No.40/2013 - NCLT, Kolkata Bench (para 52 and 53 at page No.95) 8. In support of her claim/submissions, the Applicant has also referred to Section 433 of the Companies Act, 2013 and Section 22 of the Limitation Act, 1963. ORDER 9. Heard both the sides and perused the records made available. Af....