AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (11) TMI 1405
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....) has been dismissed. 1.B Company Appeal 107 of 2018 is arising out of Impugned Order passed by NCLT dated 16th February, 2018 passed in IA No.260 of 2017 in IA 19 of 2016 in TP No.122 of 2016 whereby the application filed by the Appellant under Section 420(2) of the Companies Act has been dismissed. 1.C Company Appeal 108 of 2018 is arising out of Impugned Order passed by NCLT dated 16th February, 2018 passed in IA No.261 of 2017 in IA No.23 of 2016 in TP 125 of 2016 whereby the application filed by the Appellant under Section 420(2) of the Companies Act has been dismissed. 1.D Company Appeal 110 of 2018 is arising out of Impugned Order passed by NCLT dated 16th February, 2018 passed in IA No.193 of 2017 in IA No.17 of 2016 in TP No.120 of 2016 whereby the application filed by the Appellant under Section 420(2) of the Companies Act has been dismissed. 1.E Company Appeal 111 of 2018 is arising out of Impugned Order passed by NCLT dated 16th February, 2018 passed in IA No.194 of 2017 in IA No.19 of 2016 in TP 122 of 2016 whereby the application filed by the Appellant under Section 420(2) of the Companies Act has been dismissed. 1.F Company Appeal 112 of 2018 is arising out of I....
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....015 this petition is filed alleging oppression and mismanagement. It is stated that no action was taken by the petitioner between 2011 and 2015 and, therefore, the petition is barred by limitation. It is also stated that the delay in filing the petition is fatter and the petition is disentitled for the discretionary reliefs sought for to invoke equitable discretion of the Tribunal under section 402 of the Companies Act, 1956 or 242(2) of the Companies Act, 2013. 6. There is no limitation period prescribed under the Companies Act, 1956. The period of limitation as prescribed under the Companies Act, 1956 is only applicable to the appeals made to Appellate Tribunal. Section 433 of the Companies Act, 2013 which came in to effect on 01.06.2016 plays on Provisions of Limitation Act are applicable to the proceedings under the Companies Act, 2013. 7. It is relevant to mention here that this petition was filed in January 2015 under Section 397 and 398 of the Companies Act, 1956. Thereafter, no period of limitation is provided under section 398 and 399 of the Companies Act. This petition being filed before 01.06.2016 under Section 397 and 398, no period of limitation is there for fili....
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....ismissed on 29th May, 2017 and claimed that in the Order dated 29th May, 2017, the NCLT had not considered oral arguments on delay and latches as were advanced as well as written submissions and the rulings relied on were not discussed. The Appellants claimed that because of this, the Review Application was being filed for grounds mentioned. The prayer stated that in view of the aforesaid, the Tribunal should recall the Order dated 29.05.2017 and pass fresh Orders, after considering the oral arguments as well as written submissions which had been filed. 7. The learned NCLT heard the parties and passed the Impugned Orders dated 16th February, 2018. In Company Appeal 105 of 2018, copy of the Order is at Annexure A-1. Inter Alia, NCLT held that considering the provisions of law, it had no power to review its own Orders. It found that it could correct "mistake apparent from the record" but considering the facts of the matter and the law, although it had not referred to the Judgements relied on, NCLT held that there was no mistake apparent from the record and so it went on to dismiss the IAs which had been filed. 8. The present Appeals are filed being aggrieved by such Impugned Orders....
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.... written submissions like Annexure A-5 - Page 155 but NCLT did not consider them and when the application under Section 420(2) of the new Act was filed, it wrongly dismissed the same. The learned counsel for the Appellants considering the reasonings recorded by the NCLT in the Impugned Order, accepted that NCLT does not have power to review but according to him, the present matter would fall in the category of "mistake apparent on the record" and the Order should have been recalled. When the attention of the learned counsel for the Appellants at the time of arguments was drawn to the application (Annexure A-7) where it is mentioned that the Appellants were seeking "review", the learned counsel stated that the substance of the application mattered and not the form. According to him in the prayer, the request was only for "recall" of the Order and thus, the application should have been treated not as seeking review but recall due to mistake apparent on the face of record. The counsel referred to para - 24 of the Impugned Order to submit that the NCLT should not have discussed the Judgement in the matter of "Praveen Shankaralayam vs. M/s Elan Professional Appliances Pvt. Ltd. & Ors."....
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....Judgements referred to in the written submissions had caused miscarriage of justice. In para - 5 of the application, the Appellants mentioned "therefore this review application on the following among other grounds". The application then referred to the grounds and the prayers said that "in view of the aforesaid", the Order dated 29th May, 2017 deserved to be recalled and "fresh orders" were required to be passed. In form and substance thus the application was to review and recall Orders and to pass fresh Orders considering the arguments and Judgements referred. 11. The learned NCLT in the Impugned Order referred to Sub-Section (2) of Section 420 of the new Act which reads as under:- "The Tribunal may, at any time within two years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it, and shall make such amendment, 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." 12. The learned NCLT also referred to Rule 9 of NCLT Rules which reads as under:- "(2) The Tribunal may, at any time....
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....er dated 29th May, 2017 was passed. Apparently, it was strenuous exercise to show that if the Judgements relied on had been considered, the Order dated 29th May, 2017 could have been different. The application A-7 was in form and substance seeking recall of the Orders because the review was being sought. 16. NCLT, however, went on to consider the wordings of Sub-Section (2) of Section 420 and proceeded to discuss if the Appellants made out a case of "mistake apparent from the record" and after discussing the material, concluded that there was no mistake apparent from the record. Before us also, the main reliance of the learned counsel for the Appellants is Judgement in the matter of "Assistant Commissioner, Income Tax" (Supra). Relying on this Judgement, it is claimed that in that matter, the Income Tax Appellate Tribunal had held that authorities of the Income Tax were right in not granting exemption to the assesse regarding liability to pay tax and had dismissed the appeal but when later the Judgement of the High Court was pointed out, which was a binding decision of superior Court which had held to the contrary that the assesse, a charitable institution, was exempted, the Tribu....
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....its judgement to discuss as to what would be an error of law which is apparent on the face of record and which can be corrected by a writ but not an error of fact, however grave it may appear to be. We will reproduce para - 30 of the Judgement in the matter of Assistant Commissioner, Income Tax for beneficial reading. In para - 30, Hon'ble Supreme Court held as under:- "30. In our judgment, therefore, a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need longdrawn- out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no Court would permit it to remain on record. If t....
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....t of the parties and consequences of the actions at the time of final hearing it is not possible to come to a conclusion whether there was delay or latches on the part of the original petitioner and whether it is a voluntary delay or delay in action on account of any other factor. It is settled law that delay and latches are not fatal to the cases unless the delay resulted in grave prejudice to the rights of the parties that were asked to face litigation. It is also settled law that unless the delay amounts to waiver it is not fatal to the case of the petitioner. In that view of the matter this Tribunal needs a detailed examination of the material on record to give a final finding whether there is delay and latches on the part of the petitioner. In fact, in the order dated 29.05.2017, there is no finding that there is no delay and no latches on the part of the petitioner. The finding on such aspect is reserved for final hearing." 17.1 The NCLT then has in the Impugned Order referred to the Judgement in the matter of "Praveen Shankaralayam vs. M/s. Elan Professional Appliances Pvt. Ltd. & Ors." and how unlike the matter of Assistant Commissioner of Income Tax, Rajkot, it was not a....