TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 867
X X X X Extracts X X X X
X X X X Extracts X X X X
....to list the case for hearing. 2. Brief facts of the case are as follows: A petition under Section 241 of the Act, 2013 was filed by Respondent alleging failure on the part of the Appellants (being the lessee) to pay certain instalments as was due under a lease agreement. It was also alleged that in lieu of Inter Corporate Deposits (hereinafter referred to as ICDs) provided to Appellants (1st and 2nd Respondents) and they must transfer all his shares held in the 1st Appellant company to persons known as AMP Group and the companies they control. It is pertinent to note in this regard that the persons to whom the shares are prayed to be transferred in the Company Petition are entities disentitled to approach the Tribunal by virtue of being disqualified under sub-section (l)(a) of section 244 of the Act, 2013. 3. According to Appellants, the Company Petition was filed by the Respondent before the Tribunal on 22.8.2016 and by way of an application moved on 4.10.2016 the Respondent sought to amend the Company Petition seeking to raise a fresh cause of action by challenging certain amendments to the Articles of Association (hereinafter referred to as Articles) of the 1st Appellant com....
X X X X Extracts X X X X
X X X X Extracts X X X X
....so submitted that the provisions of the Limitation Act, 1963 must be fully applied to the proceedings instituted under Section 241 of the Act, 2013. This being the case, Ld. Counsel submitted that any cause of action sought to be agitated before the Tribunal must satisfy the preliminary test of limitation. This rule would be equally applicable to all fresh cause of action sought to be introduced into ongoing proceedings by way of an amendment to the pleadings. 8. Per contra, according to Ld. Counsel for the Respondent an amendment of pleading only works to the aid of the 2nd party. It enables the said party to get a clear notice of the issues being agitated and thereby enables a full and substantive response from their end to meet the case of the plaintiff (1st party) as amended. Reliance was placed on Hon'ble Supreme Court's decisions in "Pirgonda Hongonda v. Kalgonda Shidgonda Patil" AIR 1957 SC 363 and in "Sampath Kumar v. Ayyakannu" [2002] 7 SCC 559. 9. Insofar as law of limitation is concerned, according to Ld. Counsel for the Respondent, whether or not the amendment sought to be made relates to a cause of action is actually barred by limitation is a mixed question o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d their plaint is circumscribed by terms of Rule 155 for appropriate appreciation. Rule 17(1)(b) and rule 32 of NCLT Rules, 2016 are quoted herein:- "17. Functions of the Registrar. - (1) The Registrar shall have the following functions, namely:- xxx (b) receive applications for amendment of appeal or the petition or application or subsequent proceedings." "32. Interlocutory applications. - Every Interlocutory application for stay, direction, condonation of delay, exemption from production of copy of order appealed against or extension of time prayed for in pending matters shall be in prescribed form and the requirements prescribed in that behalf shall be complied with by the applicant, besides filing an affidavit supporting the application." 15. It is pertinent to notice that thirty days' time provided under Rule 155 NCLT Rules 2016 to amend a petition has been newly introduced into the Rules. No corresponding time period was provided under the erstwhile Company Law Board Regulation, 1999, thereby ensuring expeditious disposal of the application by Tribunal/Appellate Tribunal, keeping in view Section 422 of the Act, 2013, as quoted below:- "Expeditious Disposal by T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t, if the mistake is brought to its notice by the parties: Provided that no such amendment shall be made in respect of any order against which an appeal has been preferred under this Act." 19. The Tribunal and the Appellate Tribunal while disposing of any proceeding and appeal before it or as the case may, is not bound by the procedure laid down under the Code of Civil Procedure 1908, but shall be guided by the principles of natural justice and subject to other provisions of the Act and of any Rules made thereunder, as prescribed under Section 424 of the Companies Act, 2013 and reads as follows:- "Procedure Before Tribunal and Appellate Tribunal - 424. (1) The Tribunal and the Appellate Tribunal shall not, while disposing of any proceeding before it or, as the case may be, an appeal before it, be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice, and, subject to the other provisions of this Act ["or of the Insolvency and Bankruptcy Code, 2016"] and of any rules made thereunder, the Tribunal and the Appellate Tribunal shall have power to regulate their own procedure. (2) The Tribunal and the Appe....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... In "M/ s. Esquire Electronics and Ann, v. Netherlands India Communications Enterprises Limited & Ors"- Company Appeal (AT) 26 of 2016,, the Appellate Tribunal by judgment dated 15th February 2017 while held that continuing cause of action during a certain period was barred by limitation insofar inaction in regard to the alleged 'oppression and mismanagement' within a period of three years of filing of the Company Petition. The Appellate Tribunal held that such inaction is not barred by limitation. 22. The Company Petition in question was filed by Respondent/Petitioner on 22nd August 2016 alleging 'oppression and mismanagement'. It was alleged that in line of payment schedule every year, the 1st Respondent/ 1st Appellant received money from Respondents in the form of ICDs and in terms of original understanding between the Respondent/Petitioner and the Appellants, the share of Appellant/ 1st Respondent were to be transferred to the Respondent. However, despite prolonged proceedings with one Mr J.S Patel and 2nd Appellant/2nd Respondent, the aforesaid transfer of shares of the Respondent /Petitioner was never completed by 2nd Appellant/2nd Respondent, which was deli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uary 2017, the Appellate Tribunal held:- "12. We agree with the finding of Tribunal that Section 433 of the Companies Act, 2013 (hereinafter referred to as Act of 2013) makes it clear that the provisions of Limitation Act, 1963 (36 of 1963) apply to proceedings or appeals before the Tribunal or the Appellate Tribunal, as the case may be. The Tribunal also rightly held that the petitions under Sections 397 and 398 are enforceable like decree and for all purpose a suit within the meaning of Code of Civil Procedure. We also agree with the finding of the Tribunal that the suit for which there is no prescribed period is provided as per Article 113 of the Limitation Act, 1963, period of limitation is three years. For the reason aforesaid we agree with the finding of the Tribunal that appellant (s) cannot rake up any issue which is barred by limitation, i.e., for a period which is three years prior to the date of filing of the Petition." 29. In the present case we have observed that the Tribunal otherwise is not empowered to amend any petition except to the extent as prescribed under the Act and the Rules; the Tribunal cannot allow substantial amendment to the petition/application/appe....