TaxTMI 
TaxTMI 
2022 (3) TMI 118
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.... 3. It is represented on behalf of the Appellant that in CP No. 29/2017, was filed by Alexander Correya, Henry Peter and V R Jude Jose (R2 to R4) before the National Company Law Tribunal, Chennai Bench against 1st Respondent/ Bhagyodayam Company & Ors. and the Petitioners therein had alleged numerous 'acts' of 'Oppression and Mismanagement' of the affairs of the 1st Respondent/Company by the then Managing Director V J Paul Joseph. 4. It is brought to the fore that the 'Tribunal', on 28.08.2018 had passed order inter alia to the effect that 'since the company is incorporated for charitable purpose, the affairs of the Company are to be put on right track so that the object of the charity could be saved. Therefore, it is proper to appoint an Interim Administrator to look into the affairs of the Company'. 5. The Learned Counsel for the Appellant points out that the National Company Law Tribunal, Chennai on 31.10.2018 had appointed Hon'ble Mr. Justice Narayana Kurup (Retd.) as an 'Administrator' superseding the 'Board' in existence, to carry on the 'Functions' of the 'Company' until further orders. Moreover, with the formations of the 'National Company Law Tribunal, Kochi Bench',....
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....uditor' of the 1st Respondent/Company by the 'Tribunal'. 9. Assailing the validity, correctness, propriety and the legality of the 'impugned order' dated 11.03.2020 passed by the National Company Law Tribunal, Kochi Bench in I.A. No. 29/KOB/2020 in TCP No. 21/KOB/2019, the Learned Counsel for the Appellant contends that the 'Impugned Order' is bad in law, because of the fact that the 'Tribunal', without considering the ingredients of Sections 210 & 212 of the Companies Act, 2013 and also not taking note of the 'Judgment of the National Company Law Appellate Tribunal, New Delhi', had passed the same, which requires interference in the hands of this 'Tribunal' in 'Appeal'. 10. The Learned Counsel for the Appellant projects an argument that only the 'Central Government' is authorised to accord 'sanction' to initiate an 'Investigation' against the 'Company and its Officers', who are in 'Default' as per section 210(2)(3) of the Companies Act, 2013. In this connection, the Learned Counsel for the Appellant refers to the Judgment of this 'Appellate Tribunal' dated 02.12.2019 (3 Member Bench) in Union of India, Through Serious Fraud Investigation Office (SFIO) v. Maharashtra Tourism ....
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.... 14. It is relevantly pointed out that IA No. 29/KOB/2020 in TCP/21/KOB/2019, the 'Administrator' of 1st Respondent/ Bhagyodayam Company had sought for (1) a direction for an Order being issued to the Respondent No. 13 (ROC Kerala & Lakshadweep) herein or other Competent Authority to investigate the instances of the non-compliances and violation of the provisions of the Companies Act, 2013 and also contravention of the MOA and AOA, (2) in directing the Respondent No. 13 to prosecute the Offenders and take appropriate action Section 439(2) of the Companies Act, 2013, (3) to appoint an 'Auditor' of the Company from Annexure- A2 list. 15. The Learned Counsel for the Appellant points out that on 25.06.2020, the 'Ministry of Corporate Affairs', Headquarters, after obtaining the legal advice had instructed the 'Appellant' to file an 'Appeal' against the impugned order dated 11.03.2020 in I.A. No. 29/KOB/2020 in TCP/21/KOB/2019 and to furnish a Report to be placed before the 'Internal Committee' appraising it, of the facts to take 'considered view' in regard to the desirability of 'SFIO Investigation'. 16. According to the Learned Counsel for the Appellant, the request of the 'Regio....
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....of the proceedings' is an error based on clear ignorance or overlooking the existing provisions of Law, as opined by this 'Tribunal'. At this stage, this 'Tribunal' worth recalls and recollects the decision of the Hon'ble Supreme Court in T.C. Basappa v. T. Nagappa, AIR 1954 Supreme Court 440 wherein it is held that 'such an error is a patent error' and not a mere 'wrong decision'. 21. Further, in the decision of Hon'ble Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque, reported in 1995 1 SCR 1104 wherein it is held that 'it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of record'. 22. What is an error 'apparent on the face of record' cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature and it must be left to be decided judiciously, on the facts of each case. 23. It is to be remembered that the Companies Act, 2013 does not clothe the 'Tribunal' to 'Review its own order and Judgment'. But Section 420(2) of the Companies Act, 2013 is empowering the 'Tribunal' to act any time within two years from the date of the order in order to rectify any m....