IMPORTANT POINT
Dispute between Directors inter se cannot save limitation.

J.M. Malik, Presiding Member—The filing of the appeal before the State Commission was delayed by 445 days i.e. barred by time by one year, two months and nineteen days. The State Commission dismissed the appeal on this ground.

2. Aggrieved by that order, the present revision petition has been filed. The petitioner-opposite party has also placed on the record the copy of condonation application filed before the State Commission. His counsel also argued that his case on merits is very strong. The complainant, who has got shares cannot be said to be consumer. It is alleged that during the period of termination the other Directors of the company while working in cahoots with his relatives, Anil Jain, the complainant, received application for allotment of shares in back date and issued receipt for money and filed a complaint before the consumer fora, Indore. The Directors of the Company did not contest the case effectively and filed reply in favour of the complainant and on the said basis, the learned Consumer Forum passed an order on 13.12.2010 directing the allotment of the shares to the complainant. The Company Law Board quashed the order on 29.12.2011 and took the decision treating the petitioner as Director of the Company. The meeting was called on 23.1.2012 but the said order was not brought to the knowledge of the petitioner. The petitioner came to know about the said order passed therein and received the copy of the order on 23.2.2012. The meeting of Board of Directors was called on 3.3.2012 and an oral request was made to file an appeal against the said order, which was refused by other Directors of the company with mala fide intention. The petitioner issued notice dated 2.3.2012 to the other Directors of the company and sought consent for filing the appeal and if consent was not given, mentioning to keep petitioner’s right open to file an appeal and as such the appeal before the first appellate court was filed. It was prayed that delay should be condoned in the circumstances.

3. We see no force in these arguments. We are not to decide the case on merits. The intricate question regarding the maintainability of appeal by the petitioner or whether complainant is a consumer or not and other relative questions are not being touched. First of all, the limitation point has to be decided. There is inordinate delay of 445 days in filing the appeal before the State Commission. The dispute between the Directors inter se cannot save the limitation. The finding of the State Commission in para 3 and 4 of the judgment which are reproduced as follows cannot be faulted.

“3. It is stated that the present Directors of the Company had been ousted by the respondents, who took charge of the company as its Directors and it was only on 29.12.2011 that the present Directors were reinstated as Directors in the Company that the case was processed for filing this appeal.

4. It is not disputed, the Company was existence all through and there was a change of Directors only. Merely on account of reinstatement of the present Directors, it cannot be said that there was a justifiable cause to file the appeal after one year, two month and nineteen days. Even otherwise, the Company being in existence, could have taken steps to file the appeal. No ground is made out for condonation of delay. The appeal is dismissed as time barred.”

4. This view is emboldened by the following authorities.

5. In Balwant Singh (Dead) v. Jagdish Singh & Ors.1, Apex Court was held:

“The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”

6. In the celebrated authority reported in Anshul Aggarwal v. New Okhla Industrial Development Authority2, it has