TaxTMI 
TaxTMI 
2017 (3) TMI 1893
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........ 34 E. RIVAL SUBMISSIONS AND FINDINGS ........................... 42 A. THE PRELIMINARY ISSUE 1. This judgment disposes of the following preliminary issue framed under Section 9A of the Code of Civil Procedure, 1908 ("CPC") on 25th August 2016: "Whether any of the reliefs claimed are barred by limitation?" 2. The attempt by the Plaintiff, made till the very end, to suggest that limitation cannot be a preliminary issue being a mixed question of fact and law must be rejected out of hand in view of the Supreme Court decision in Foreshore Co-operative Housing Society Ltd v Praveen D Desai & Ors. (2015) 6 SCC 412 The correctness of Foreshore was questioned in Jagdish Shyamrao Thorve v Shri Mohan Sitaram (Special Leave Petition (C) No. 22438 of 2015, order dated 17th August 2015), and the matter was directed to be placed before the Hon'ble the Chief Justice of India for constituting a larger Bench, that reference has not yet been answered. Consequently, Foreshore continues to hold the field. I did not permit the Plaintiffs' counsel to argue to the contrary, and I cannot possibly accept their argument that I should follow the earlier Supreme Court decision in Gunwa....
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....xhibit A hereto) as also from representing to the public at large that they are owners of the suit shares or have any beneficial interest therein;" 4. To understand how the suit lies, I should explain the array of parties. The 1st Defendant ("Bombay Oxygen") is a public limited company. It deals in industrial gases. Its shares are listed on the Bombay Stock Exchange. Defendants Nos. 2 to 9 are individuals and entities within the Shyam Ruia family ("Ruias"). Defendant No. 10 ("Griesheim") is a German Company. It was previously known as Messer Griesheim GmbH. Defendant No. 12 is a company with which Bombay Oxygen has apparently entered into a Development Agreement. That is covered by the remaining prayers that are within time. Defendant No. 13 is the Union Bank of India in whose favour Defendant No. 12 has apparently created a mortgage. We are not in the present proceedings under Section 9A concerned with Defendants Nos. 12 and 13. Defendant No. 11 ("Goyal Gases") is also an Indian Company. Griesheim holds 49% of the equity of Goyal Gases. The rest is held by the Suresh Goyal family and group. The Plaintiff ("Messer Holdings") is a company incorporated in the British Virgin Island....
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...., Messer Holdings, knew in 2000 or, at any rate, no later than 2001 that Ruias had filed a suit claiming these very shares. This was not some mere idle claim of which Messer Holdings could think to take no notice. Messer Holdings was aware of both Suits. It was sought to be joined to the 2000 suit by an amendment and it was made a Defendant to the second suit filed in 2001 by the Ruias. It sought impleadment itself. I will examine the claims in these Suits, but it seems to me that irrespective of the fact that both Suits were later held by the Supreme Court to be utterly frivolous, that subsequent decision cannot alter the fact that the two suits nonetheless represented a very real, eminent and proximate infringement of, or, at any rate, a clear and unequivocal threat to Messer Holdings' rights in respect of these shares. I cannot accept Mr Sreegesh's argument that no suit was necessary by Messer Holdings until such time as there was written documentation between Griesheim and the Ruias, and Messer Holdings was made aware of this. It is equally impossible to accept his submission that there can ever be a class of civil suits to which no limitation applies. I have also rejec....
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....heim was also free to purchase additional equity from the public. The SPA had a First Refusal Clause 6.1, but this did not apply to any sale of the shares by Griesheim to a company from its parent group, the Hoechst Group. 15. On 25th August 1998 Griesheim paid the entire consideration of Rs 13.04 crores to Ruias. Griesheim's nominees were appointed to Bombay Oxygen's board. Griesheim took over the management of Bombay Oxygen. Goyal Gases moved the Delhi High Court against Griesheim from getting any shares in Bombay Oxygen, saying this violated the non-compete clause in the 1995 SPCA between Griesheim and Goyal Gases. Goyal said this on the basis that Griesheim's investment in Bombay Oxygen constituted a violation of the non-compete clause. By its order dated 18th December 1998, the Supreme Court permitted Griesheim to purchase and pay for additional shares of Bombay Oxygen acquired from the public but restrained Griesheim from getting these shares registered in its name. By a later order dated 8th February 1999 the Supreme Court held that since Ruias had been paid, the question of ownership and registration would be decided in arbitration proceedings between Grieshe....
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.... dated 6th May 1999 and 9th June 1999 be vacated on the ground that that orders travelled beyond Clause 6.1. On 29th February 2000, accepting the undertaking by Griesheim that it would abide by Clause 6.1 of the SPA, this Court disposed of the Ruias' Notice of Motion No. 1804 of 1999. It directed Griesheim and Goyal Gases not to implement or enforce any arbitral Award without leave of the Court. The parties were left at liberty to adopt appropriate proceedings to enforce their respective rights. 21. On 13th March 2000, Griesheim and Goyal Gases agreed on the broad terms of a settlement of their disputes (then pending arbitration) relating to the 75,001 equity shares of Bombay Oxygen. Messer Holdings contends that in terms of this understanding Griesheim undertook to transfer these 75,001 shares of Bombay Oxygen to Messer Holdings for a consideration of DM 10 million equivalent to Euro 5,112,918.82. Griesheim agreed to deliver the actual share scrips of Bombay Oxygen to Messer Holdings with duly executed transfer and proxy forms. The terms of this understanding were concluded on 13th March 2000. On 20th May 2000, Griesheim is said to have delivered the physical share scrips f....
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....fer of the Bombay Oxygen shares to Griesheim were both vitiated by misrepresentation. Messer Holdings was joined as a party to this suit. The Ruias filed Notice of Motion No. 392 of 2001 seeking a restraint against, and again this is important, Goyal Gases and Messer Holdings from exercising any rights as the beneficial owners of these shares. 26. This would be an opportune moment to consider the precise reliefs that the Ruias sought in these two Suits. These are the reliefs in Ruias' suit No. 509 of 2001: "(a) for a declaration that the Share Purchase Agreement dated 23rd June 1997 is liable to be rescinded; (b) for an order of this Hon'ble Court directing the said Share Purchase Agreement dated 23rd June 1997 be rescinded; (c) that in the alternative to prayers (a) and (b) above, for a declaration that the Share Purchase Agreement dated 23rd June 1997 was voidable and has been validly avoided by the Plaintiffs; (d) that in the alternative to prayers (a), (b) and (c) above, for a declaration that the Share Purchase Agreement dated 23rd June 1997 was terminable by the Plaintiffs and has been validly terminated by the Plaintiffs; ....
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....s with all accretions. Prayer (b)(iv) also sought an injunction restraining any transfer of the 75,001 shares of Bombay Oxygen in the name of any entity or person without the Ruias' consent and, in prayer (b)(v) a restraint against any of the Defendants (by that time which included Messer Holdings) from exercising any beneficial rights in respect of those 75,001 shares. For completeness, here are the prayers in the first suit No. 2499 of 1999: (a)(i) For a declaration that the acquisition of the said 30,000 shares pursuant to the public offer is illegal, null and void and of no legal effect whatsoever. (ii) For a permanent order and injunction restraining the defendants from exercising any rights in respect of the said 30,000 shares including and in particular voting rights; (b)(i) for a declaration that the said agreement dated 23rd June 1997 (Exhibit -B hereto) stands validly terminated and/or avoided. (b)(ii)(a) that it be declared that Defendant Nos. 3 to 5 have no right, title or interest of any nature whatsoever in (b)(ii)(b) that in the alternative to prayer (b)(ii) this Hon'ble Court be pleased to order and direct t....
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.... or court in violation of Clause 6.1 of the Share Purchase Agreement dated 23rd June 1997, being Ex 'B' hereto: (iv) making any claim before the Arbitrators or any court which if granted will amount to a breach or violation of the provisions of Clause 6.1 of the said Share Purchase Agreement dated 23rd June 1997, being Ex. 'B' hereto; (v) procuring any breach of the provisions of clause 6.1 of the said Share Purchase Agreement dated 23rd June, 1977 being Ex. 'B' hereto; (b1)(a) In the alternative and in the event of prayer (b) not being granted and in the event of it being held that the said agreement is void, defendant Nos. 1, 4 and 5 be ordered and decreed to deliver/return to the respective Plaintiffs the said 45001 shares together with all accretions thereto from 23rd June 1977 on such terms of this Hon'ble Court may direct. (b) For the purpose aforesaid defendants Nos. 1, 4 and 5 be ordered and decreed to do and perform all acts, deeds, matters and things and to execute all documents, deeds and writings in furtherance thereof. 28. These are important because this is the point in time on which Messer Holdi....
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.... Messer Holdings (according to the Plaintiffs) and received payment for that (according to the Plaintiffs). Surely the terms of the Settlement Agreement were irrelevant, and Messer Holdings can be hardly heard to say that the challenge to the Settlement Agreement turned on the terms of that Agreement between the Ruias and Griesheim. From Messer Holdings' perspective, these terms of Settlement, whatever they may have been, were entirely irrelevant. The fact of the settlement between Ruias and Griesheim was sufficient and, I am unable to see how Messer Holdings could treat this as not affecting it. It was also possible for Messer Holdings to file a substantive suit seeking a declaration -- as indeed it only now does -- of its entitlement to these shares and saying that any settlement or agreement to the contrary between Ruias and Griesheim was not binding on it. 31. At this stage, I must also note that the settlement between the Ruias and Griesheim is dated 5th December 2002. Messer Holdings maintains that it was not given a copy of this document till 14th October 2005. As we shall see, that date is largely immaterial. 32. On 17th March 2003, Goyal Gases filed an Affidavit ....
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....s own Appeal demanding disclosure. This Notice of Motion was opposed. Ultimately on 28th September 2005 the Division Bench directed the Ruias to disclose the agreement, and this takes us to 14th October 2005. This is the date when, according to Messer Holdings, a copy of the Settlement Agreement of 5th December 2002 was first furnished to it. Now that Settlement Agreement says nothing more than what the Ruias and Griesheim was saying all along, viz., that the Ruias and Griesheim had retained their SPA and the 75,001 suit shares reverted to Ruias. The fact that in the Settlement Agreement Ruias gave up their case of violation of the SEBI Regulations is largely irrelevant. In any case, it furnishes Messer Holdings no cause of action distinct, separate or independent of that which arose earlier. 36. On 5th December 2005, Messer Holdings filed a Notice of Motion in its Appeal now saying that since there was a Settlement Agreement Ruias' suit was infructuous and was liable to be dismissed. The Ruias opposed this Notice of Motion. They also filed a Chamber Summons to amend their first suit No. 2499 of 1999 by adding a prayer for delivery of the 75,001 shares from Messer Holdings, ....
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....nt to the filing of the SUIT-III. We do not wish to examine those questions as such enquiry would be purposeless at this stage in view of the subsequent developments.) of SUIT-II is that RUIAS do not want MGG to transfer any of the shares of BOCL acquired by MGG pursuant to AGREEMENT-II in favour of either GGL or MHL or any other person without first offering them to RUIAS. Such a transfer in the opinion of RUIAS would be in violation of Clause 6.1 of the AGREEMENT- II. Coming to SUIT-III, RUIAS want to wriggle out of the AGREEMENT-II and therefore, the various alternative prayers! in substance seeking to nullify the acquisition of 75001 shares by MGG under AGREEMENT-II. (Prayers (a) to (f) of suit-III (see para 17 supra)). They also rely upon the events subsequent to 23.06.1997 - transactions between GGL and MGG etc. and seek various prayers which are already noticed. (Prayer (b) to (k) of suit III (see para 17 supra)). Having filed SUIT-III, RUIAS once again amended the SUIT-II enlarging the scope of the suit. Whether such amendments are legally tenable or not is a question to be examined from the point of view of the principles governing the law on the question of joind....
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....2002. RUIAS should normally be entitled to have their names entered into the records of BOCL as holders of the said shares by following appropriate procedure. If either GGL or MHL is objecting to the right of MGG to effect the said transfer in favour of RUIAS, they must establish a superior title (to MGG) in the said shares. It goes without saying that it can be done only in some legal action initiated by either GGL or MHL or both jointly. But they cannot seek a declaration of their title in the SUITS-II and III filed by the RUIAS. In a bid to establish their title MHL filed SUIT-IV. (See prayer (q) in SUIT IV (extracted at para 26 supra)). The right of MHL, if any, will have to be decided in the said suit. Until the said suit is decided, we do not see any ground in law on which either GGL or MHL can object to the transfer of the shares in favour of RUIAS pursuant to the settlement dated 5.12.2002. 36. What exactly is the procedure which RUIAS are required to follow to effectuate the transfer of shares pursuant to the settlement dated 5.12.2002 is for RUIAS to explore. Because during the long pendency of the instant litigation there is a considerable change in the law rega....
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....ns thereto from 23rd June 1997 on such terms as this Hon'ble Court directs. --SUIT-III i.e. for a declaration in favour of RUIAS that they are entitled to the recovery of 75001 shares jointly against MGG, GGL and MHL etc. RUIAS having agreed not to prosecute the suits against MGG cannot continue the suits against other defendants in the suits whose claim (if any) rests on the right and title of MGG. The continuance of the SUITS-II and III, in our opinion, is, therefore, wholly without any cause of action and an abuse of the judicial process. Therefore, these SLPs filed by MHL and GGL purportedly aggrieved by the impugned orders passed in the various applications filed in the two suits filed by RUIAS become infructuous. Therefore, the said SLPs arising therefrom are dismissed. 38. The consequent factual position would be: (i) the legal rights acquired (whatever they are) by MGG in 45001 shares of BOCL purchased from RUIAS pursuant to AGREEMENT-II should revert back to RUIAS unless it is found that the purported transfer of 45001 shares by MGG pursuant to the consent award dated 21.09.2000 in favour of MHL created any right or....
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....ne of the suits even issues have been framed so far. The learned counsel appearing for the parties very vehemently urged that there should be a finality to the litigation and therefore this Court should examine every question of fact and law thrown up by the enormous litigation. We believe that it is only the parties who are to be blamed for the state of affairs. This case, in our view, is a classic example of the abuse of the judicial process by unscrupulous litigants with money power, all in the name of legal rights by resorting to half-truths, misleading representations and suppression of facts. Each and every party is guilty of one or the other of the above- mentioned misconducts. It can be demonstrated (by a more elaborate explanation but we believe the facts narrated so far would be sufficient to indicate) but we do not wish to waste any more time in these matters." 42. The Supreme Court ended with this admonition: "44. This case should also serve as proof of the abuse of the discretionary Jurisdiction of this Court under Article 136 by the rich and powerful in the name of a 'fight for justice' at each and every interlocutory step of a suit. Enormous amoun....
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....as by then Defendant No. 10 had transferred the suit shares to the Plaintiff company and had expressly recognized themselves as trustee of the Plaintiff Company. Hence, the purported reversion/sale/transfer of the suit shares do not confer any valid right or title on Defendant No. 2 to 9 and Defendant No. 2 to 9 cannot continue to exercise rights emanating from such shares]. As is more particularly stated hereafter, sometime in or about August 1998, Defendant Nos. 2 to 9 who where the holders of 45001 shares in the said Company, transferred the said shares to Defendant No. 10 for a consideration equivalent to Rs. 13.5 crores. Additionally, Defendant No. 10 acquired 30,000 shares in the said Company from he open market for a consideration of Rs.9 crores and thus acquired a total of 75001 shares (suit shares) in the said Company. In order about August 2000 Defendant No. 10 further transferred the entire lot of suit shares (75001 shares) to the Plaintiff for a consideration of 10 million DM (equivalent to Euro.51,12,918.82) and delivered to the Plaintiff the original share certificates and duly executed documents of transfer in respect thereof. The Plaintiff was, however, unable to lo....
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.... for a declaration that such a purported transfer or reversion of shares to Defendant Nos. 2 to 9 is nullity and/or of no legal effect and that the Plaintiff is entitled to all rights as a beneficial and legal owner of the suit shares. 45. The next portion of the plaint that is relevant for my purposes is paragraph 7(xxxiv) at pages 27 to 29 and this is how it reads: "(xxxiv) On 26th April 2005, the Plaintiff came across a corporate announcement made by Defendant No. 1 Company on the Website of the Bombay Stock Exchange wherein they admitted that as on 30th September 2002, the suit shares (75001 shares) had been acquired by Defendant No. 10 but were not transferred to their name in view of Court Orders restraining such transfer. In a separate Notice of "Share Holding Pattern" as on 31/12/2002 posted on the said Website, it was also claimed by Defendant No. 1 that as of 31st December 2002, the 30,000 shares acquired by Defendant No. 10 from public shareholders could not be transferred in the name of Defendant No. 10 in view of various Court Orders but the same had been sold/ transferred to the promoters of the said Company (Defendant No. 1), and that the said shares cont....
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....ligence. The Plaintiff was unable to apply for registration of the suit shares in its name at any time prior thereto in view of the interim orders which restrained not only the Plaintiff but even prior thereto, the Plaintiff's transferee, Defendant No. 10 from registering the shares in its name. Further, the Plaintiff has learned about the purported Development Agreement in respect of the immoveable property at Mulund only as late as 4.4.2008 as stated hereinbefore. The suit is within time. 14A. The cause of action for filing of the present suit arose for the first time on 14th October 2005, when pursuant to the Order dated 28th September 2005, a copy of the Agreement dated 5th December 2002 was handed over to defendants No. 2 to 9 to the plaintiff and it was upon receipt of the said Agreement, the plaintiff came to know about the contents thereof, which gave rise to the filing of the present suit. Cause of action further arose when the plaintiff on or about April 2008 came to know about the purported development agreement in respect of the property at Mumbai and thus the suit is within limitation." 47. The parties went to trial on the preliminary issue on this basi....
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.... dismissal of the Special Leave Petitions in 2016. 50. Mr Dhar was cross-examined in Court before me. Right at the beginning he was asked how much of his Affidavit is true to his own knowledge and what portions was based on record. I allowed him to make markings on the original. Paragraphs 1, 3, 4, 6 to 8, 10 to 13, 16, 22, 24, 25 and 28 were the ones the witness ticked as being to his knowledge. 51. In answer to Questions 9 to 11 he claimed that Messer Holdings became the legal and beneficial owner of the suit shares because he had seen Transfer Certificates and because he claimed that the original share scrips and the Transfer Deeds with Messer Holdings. He saw this because, according to him, he was at the office of Morgan Trade & Commerce Limited on the day when these shares were delivered. In answer to paragraph 12 he confirmed that he saw these on 20th May 2000. He was not however aware whether these shares were ever lodged with Bombay Oxygen. He did however say that he was present when Griesheim offered to settle its disputes with Goyal Gases without infringing Clause 6.1 of the SPA. This offer of Settlement, according to Mr Dhar, in answer to Question 20 was in late-19....
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....NG TO DECREES AND INSTRUMENTS Description of suit Period of Limitation Time from which period begins to run 59. To cancel or set aside an instrument or decree or for the rescission of a contract Three years When the facts entitling the plaintiff to have the instrument or decree. cancelled or set aside or the contract rescinded first become known to him." 53. Mr Sreegesh describes this as a 'compulsory' cause of action that requires the institution of the suit. That compulsory cause of action is the Settlement Agreement of 5th December 2002, one that was disclosed only on 14th October 2005. Till then, he submits, Messer Holdings had no cause of action at all. It is only when this document surfaced, he submits, that Messer Holdings "apprehended" that the said Settlement Agreement between Defendant No. 10 and Defendants Nos. 2 to 9 if left outstanding would emerge as an insurmountable obstacle to the Plaintiffs' right over the suit shares "including its right to lodge the said certificate for registration notwithstanding that the physical share certificates and duly filled transfer forms continue to remain with the Plaintiff". This was inf....
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....is view, therefore, the suit falls within Article 59 and is brought within time. 54. As we shall see, Mr Sreegesh is entirely wrong in his submission that there must be an actual infringement for a right to sue to accrue, and that a direct, clear and unequivocal threat to title does not furnish any cause of action. The authorities cited by Mr Sreegesh himself do not support so overbroad a proposition. 55. In the alternative he submits that if the suit does not fall under Article 59 then it must be seen not as a suit for declaration simpliciter. It must still be seen as a composite suit and that brings it within the fold of Article 113 of the Limitation Act 1963: "PART X -- SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD Description of suit Period of Limitation Time from which period begins to run 113. Any suit for which no period of limitation is provided elsewhere n this Schedule. Three years When the right to sue accrues." 56. He cites much authority in support of his proposition that Gouranga Sahu & Ors v Bhaga Sahu & Anr, AIR 1976 Ori 43 (para7); National Sports Club of India & Ors v Nandlal Dwarkadas Chhabria & Ors, 1997 (30) Bom.C.R....
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....lieve, that any fraud had been committed, or (ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or (iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed. (2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order: Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be." 59. He submits that the knowledge of the fraud must be knowledge of the date of the Settlement Agreement of 5th December 2002. This date is 14th October 2005 and hence the suit is within time. 60. I hav....
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....sser Holdings so-called beneficial right in the suit shares came to be challenged by the Ruias in August 2000 when the Ruias filed a Chamber Summons to implead Messer Holdings, or in February 2001 when it filed the second suit. 63. I believe Mr Kapadia is correct and there is a fundamental aspect that Mr Sreegesh did not address: there was no reason for Messer Holdings to be joined as a party defendant to either of the Ruias suits except for a direct and overt threat and challenge by the Ruias to Messer Holdings' beneficial rights in the suit shares. I have already set out the prayers in suit No. 2499 of 1999 after the relevant amendments. These show that Messer Holdings knew of that substantive challenge to their rights. 64. Messer Holdings also appeared in the second suit against the Ruias in respect of the shares. It appeared before the learned Single Judge and applied for a disclosure of the Settlement Agreement. This was in an Affidavit dated 17th March 2003 filed by one Mr Ajit Shukla on behalf of Messer Holdings in suit no. 2499 of 1999. This Affidavit is at pages 100-101 of the compilation. This shows that Messer Holdings knew of the Agreement between Griesheim an....
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....) of Messer Holdings' alleged title. 69. The right to sue, says Mr Kapadia, and I think quite correctly, arises on an overt, clear and unambiguous challenge or threat. The filing of a suit threatening one's title to the property is nothing if not overt. It is difficult to conceive of anything more overt than this in a civil claim. Section 9 of the Limitation Act 1963 clearly says that once time has begun to run, no subsequent disability or inability to institute a suit stops it. Time began to run from the date of Messer Holdings' knowledge of an overt challenge to its title and this was in August 2000 or February 2001 and no later. I also believe Mr Kapadia is correct in saying that this is a suit that falls within the meaning of Article 58, which speaks of suits for a declaration and provides for three years from the date when the right to sue first accrues. The difference between Article 58 and Article 113 is that the former speaks of time running from the date when the right to sue first accrues, i.e., from no later date. Mr Kapadia is also correct in saying that limitation ceases running only in two situations: on the filing of a suit, or on the grant of an anti-....
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....order to clear the way with a view to establish his title is to get a declaration that the decree or deed is invalid so far as he himself is concerned and he must therefore sue for a declaration and not for the cancellation of the decree or deed. ... My attention has not been drawn to any decision which throws any real doubt on the general proposition that when a person seeks to establish title which cannot be established without removing a decree or an instrument to which he is himself a party, then whatever be the garb in which he dresses his suit, its substantial character must be a suit for the cancellation of the decree or instrument; but if the establishment of his title is being impeded by the effect of a transaction between other parties, he cannot legitimately ask for the cancellation of that transaction but can only ask for a declaration that so far as he is concerned, it is not binding. 71. This is precisely the case here. Messer Holdings is a stranger to the Settlement Agreement. It is of no consequence to Messer Holdings whether that document is cancelled or not; it must get a declaration that it is not bound by that document (to which it is not a party). The case c....
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....r of which were cited Prem Raj v DLF Housing & Construction Pvt Ltd & Anr AIR 1968 SC 1355 is of no conceivable application to the present case. The question there was of whether a party to a contract could sue for specific performance and, in the alternative, for rescission. The Supreme Court held it could, but the converse was not true. This has nothing at all to do with our situation where such a relief is sought by a stranger to the contract. 73. Returning to the plaint, I do not see how Messer Holdings can maintain the argument that the declaration it seeks are based on a cause of action that did not arise till 2005. Messer Holdings needed this declaration in August 2000 or at the latest in February 2001. To this, the Supreme Court's subsequent holding of the Ruias' suits to be without a cause of action and perhaps even an abuse of process of the Court is not an answer; it cannot be. The Supreme Court clearly said Messer Holdings would have to establish its case in its own suit and all defences were left open. What matters is not the tenability or the chance of success of an overt challenge, but the date when that overt challenge is made. When it comes to limitation....
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....Daulat Lad v Ashok Govind Tawade, 2002 (3) Bom CR 475; Ambalal Ranchhoddas & Anr V Shamjibhai Ladhabhai Patel & Anr, (1969) 10 GLR 197; Bharat Singh v Kunwar Singh & Anr, AIR 1991 MP 368; Kuttapan Achari v State of Kerala, 2005 (1) KLT 273; 77. In this view of the matter, I must conclude that prayer (q), (r), (s), (t) and (u) of the suit are completely barred by limitation. 78. The suit will continue for the remaining prayers, viz., prayers (v), (w), (x) and (z). It is however another matter whether the Plaintiffs can maintain the remaining prayers without being able to obtain a declaration in terms of prayer (q) and (s) and a decree in terms of prayer clauses (r), (t) and (u). After all, their rights in relation to the 2008 Development Agreement that is the subject matter of prayers (v) and (w) and the mortgage deed mentioned in prayer clauses (x) and (y) are entirely dependent on a declaration of Messer Holdings being the owner and having beneficial interest in the suit shares in the first place. If not, it is an outsider to Bombay Oxygen. However, this is not a matter that I am required to consider in the present preliminary issue under Section 9A. All contentions must be ....