TaxTMI 
TaxTMI 
TaxTMI 
2019 (7) TMI 1024
X X X X Extracts X X X X
X X X X Extracts X X X X
....The said order was preceded by the first motion order dated 26th February, 1999 convening the meetings of the shareholders and secured and unsecured creditors of SCIL, TEL and MAML on 17th April, 1999. 3. The Appellant filed the aforementioned application being CA No. 730/2002 more than three years later on 22nd July, 2002 inter-alia on the ground that the Appellant, who claimed that he held 52,470 equity shares of TEL (constituting 52.47% of the shareholding) did not receive notice of the said meeting of shareholders called pursuant to the order dated 26th February, 1999. The Appellant stated that he was the brother of Respondents No.5 and 6 and late Shri Gulshan Kumar and that TEL, MAML and SCIL were closely held family companies. Respondent No.4 was the son of late Shri Gulshan Kumar and therefore a nephew of the Appellant as well as Respondents No.5 and 6. Respondent No.7 was the wife of late Shri Gulshan Kumar. Respondents No.8 and 9 were Directors in SCIL. Respondent No.10 was the wife of the Appellant and therefore a proforma Respondent. Likewise Respondents No.11 and 12 who were the children of Appellant and Respondent No.10 were also proforma Respondents. 4. According t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Rules seeking recall of the order dated 20th September, 1999 by which the scheme for merger of TEL and MAML with SCIL had been approved. 9. The contesting Respondents raised a preliminary objection that CA No. 730/2002 was not maintainable. It was contended that the remedy under Rule 9 of the Company (Court) Rules invoking the inherent jurisdiction of the Court was available only if there was no other alternative remedy for the Applicant. According to the contesting Respondents at the time that the application was filed on 22nd July 2002 Section 391 (7) of the Act had not been repealed and an appeal could have been filed thereunder. This was without prejudice to the contention that such appeal would in any event be time barred. 10. In the impugned order, the learned Single Judge also took note of the second main objection raised by the contesting Respondents that in respect of the 52470 shares of TEL, the name of the Appellant was never entered in the register of members as a shareholder. He was also not a member qua the 100 shares which earlier stood transferred to Respondent No.4 prior to the merger on 27th February 1999 and which was also reflected in the annual return of TEL....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... A preliminary objection has been raised by the Respondents 1, 4 to 8 contesting the maintainability of the present appeal. Mr. Amit Sibal, learned Senior counsel appearing for the said Respondents made the following submissions in this regard: (i) The application filed by the Appellant under Rule 9 of the Company (Court) Rules purportedly sought 'recall' of the order dated 20th September, 1999 passed by the learned Company Judge approving the Scheme of Amalgamation between SCIL, TEL and MAML. In effect it was an invitation to the learned Single Judge to re-examine the merits. Therefore, in effect the impugned order was an order dismissing a 'review' petition. (ii) The Appellant was not a party to the said proceedings. Reliance is placed on the decision of the Division Bench (DB) of this Court in Ram Kohli v. Indrama Investment Pvt. Ltd (2014) 186 CC 358 (Del) holding that an application filed by a litigant who was not a party to the original proceedings seeking to challenge the scheme of merger sanctioned by the Court should be treated as one seeking review of the said order. (iii) A distinction had to be drawn between a petition seeking review of an order and that seeking....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gesh, learned counsel appearing for the Appellant, submitted as under: (a) The decision in Ram Kohli v. Indrama Investment Pvt. Ltd. (supra) was distinguishable on facts. The said decision dealt with the merits of the matter and not an application for recall. The DB in that case proceeded on the basis that Section 391 (7) of the Act stood deleted without creating a corresponding provision for appeal. This was a mistaken basis since in fact the repeal of the said provision had not been notified till April 2015. (b) The Companies (Second Amendment) Act 2002, the Press Note No. 2/2003 dated 4th April 2003, the notification dated 10th July, 2012 of the Ministry of Corporate Affairs and the Gazette of India dated 14th May, 2015 when read together showed that in fact there was no repeal of Section 391(7) of the Act. Therefore, the present appeal was maintainable even thereunder. (c) There was a genuine confusion in this regard and appeals were not getting numbered unless it was filed under Section 483 of the Act. He accordingly submitted that the present appeal ought to be treated as one under Section 391 (7) of the Act. There could never be a situation where the party is le....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pt a different route. On 22nd July 2002 he chose to file an application under Rule 9 of the Company (Court) Rules seeking recall of the order dated 20th September 1999 approving the merger of TEL and MAML with SCIL. He persisted with that application and invited a full fledged judgment of the learned Single Judge. Therefore, it is not open for the Appellant to now contend that the said application should in fact be treated as an appeal against the order dated 20th September 1999 under Section 391 (7) of the Act. At no time before the learned Single Judge was an attempt made to withdraw the said application with liberty to file an appeal which would, if filed, lie before the DB. 22. The Court is inclined to agree with the submission of the contesting Respondents that CA 730 of 2002 filed by the Appellant was indeed a petition seeking review of the order dated 20th September 1999 and that correspondingly the impugned order is one rejecting a review petition. There is a distinction between an application for 'recall' of an order and one seeking its 'review'. In Asit Kumar v. State of West Bengal 2009 (1) SCR 469, the Supreme Court observed: "There is a distinction between ...... a....