2017 (3) TMI 1561

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....(Clause 4), Article 14, Article 15, Article 16, Article 17, and Article 26 (Clauses 1, 2, 3 and 4). These Articles conferred certain privileges upon the Petitioner, Mr. Ashit M. Patel ("AMP") and other members of the AMP Group and AMP Group Companies, as has been set out more particularly in paragraph 6C of the Petition, and it is alleged by the Respondents that these Articles have been deleted by a Special Resolution passed at an Extra-ordinary General Meeting of Respondent No. 1 which took place on December 15, 2012. 8. It is submitted that since the respondents have pleaded the aforesaid additional facts and adduced the additional documents (Exhibit B and Exhibit D to the Reply), and since the Respondents have made several averments in furtherance of these alleged amendments to the Articles of Association dated December 15, 2012 to supplement their case before this Hon'ble Tribunal, it has become necessary and incumbent upon the Applicant to amend the present Petition." 2. From the side of the Applicant, Ld. Senior Advocate Mr. Vikram S. Namkani has pleaded that it was wrong on the part of the Respondent Company and other Respondents to amend the Articles of Association v....

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....e side of the Respondents, Ld. Senior Advocate Mr. Dinyar Madan appeared and opposed the Application on two grounds, No. 1, that the Respondents have challenged the maintainability of the Petition and that the amendment as sought is barred by limitation. According to him the Petitioner Company was all along aware of the amendment in the AoA. Notice of the EOGM held on 30th March, 2008 and 15th December, 2012 were duly given to the Petitioner Company vide Notices of EOGM dated 24th March, 2008 and 14th November, 2012 respectively. On the occasion when the EOGM was held, the said amendments took place in the AoA of the Respondent No. 1 Company. He has informed that sufficient evidences in support of the said statement are either on record or available with the Respondents. He has reiterated that the Authorised Representative of the Petitioner Company viz. Mr. Shailesh Patel was present and attended the EOGM held on 30th March, 2008. A Resolution was passed in the EOGM and thereupon amended the AoA of Respondent No. 1 Company as well as communicated to the concerned authorities as mandated by law. According to his vehement contentions, the attempt of amendment is nothing but an aftert....

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.... general, no specific time or period has been prescribed in The Act (2013) for seeking permission of amendment. In support of this argument, reliance has been placed on the following decisions:- "1. Charminar Cooperative Urban Bank Limited Versus Mohan Reddy And Others. (2008) 17 Supreme Court Cases 743 (Before Ruma Pal and P. Venkatarama Reddi, JJ.) Civil Appeals Nos. 6540-44 of 2003, decided on August 14, 2003. 2. Raghu Thilak D. John Versus S. Rayappan and Others. Supreme Court Cases (2001) 2 Supreme Court Cases 472 (Before K.T. Thomas and R.P. Sethi, JJ.) Civil Appeal No. 787 of 2001, decided on January 23, 2001. 5. On both the issues - (i) whether under the facts and circumstances an amendment is legally permissible and (ii) whether the amendment is barred by limitation - arguments of both the sides were heard at considerable length. The question of limitation shall be addressed first. 5.1 The law laid down under the Companies Act, 2013 is by enactment of Section 433 under the title "Limitation". This Section prescribes:- "Limitation 433. The provisions of Limitation Act, 1964=3 (36 of 1963) shall, as far as may be, apply to proceedings or appeals before the Tribunal....

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....ights are not inter-exchangeable. The necessity of amendment arises from the facts brought to the knowledge of the Petitioner consequent upon the service of Petition/Suit on the other side. The amendment can be said to be dependent upon the facts already narrated in a Suit, but by no stretch of imagination it can be hold that the amendment is alike Suit. Rather, it is appropriate to clarify that if through an amendment a fresh cause of action arises or a fresh claim is made, then such an amendment may not be allowed to carry out. 5.4 To resolve this controversy, perused Order VI Rule 17 of the Code of Civil Procedure, 1908, wherein "Amendment of pleadings" are prescribed, which says that Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner as may be jest and necessary for the purpose of determining the real questions in controversy between the parties. It is a trite law that this exception is prescribed to facilitate the proceedings, if found necessary and helpful in determining the question in controversy. The amendment must not be allowed if it would result in introducing a new case or a fresh cause of action. It can also no....