TaxTMI 
TaxTMI 
2025 (12) TMI 1620
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....and since then was engaged in manufacturing selling, importing and exporting of LED lights, electric lights, other light fittings and electric appliances. In accordance with the Articles of Association of the 1st Respondent Company at the stage of incorporation of the company, there were three Directors, namely Mr. G. Senthil Raj, (Appellant), Mr. Arun Prakash Sivagurunathan (Respondent No. 2), and Mr. Giridharan Chidambaram, (Respondent No. 3) herein. Subsequently, an Additional Director was also introduced, namely, Mr. Devaraj Siddiah Peranaidu, i.e., Respondent No. 4 herein. 3. There are various factual aspects, which are required to be referred to, but for the purposes of the instant company appeal, as it is limited to consideration of the aspect of limitation, in IA/1241/2019 and its applicability on the application in IA/1241/2019 to set aside the order of withdrawal of the company petition CP/69/2014 and to re-open it we are not intrinsically dealing with the factual aspects as engaged consideration, in the proceeding, which was held before the Ld. NCLT, Chennai, by way of CP No. 69/2014 in TCP/151/2016, Mr. G. Senthil Raj Vs. M/s. Indo Mikasa Green Lighting Private Limit....
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.... had instructed the Company Secretary not to agree with the proposal of settlement as it has been submitted in the company petition, before the Ld. NCLT. 7. The Appellant contends that, despite there being, specific instructions imparted by him, to the Company Secretary for not to accept the terms of the compromise which was taken as to be the basis for withdrawal of the company petition, the Company Secretary acceded to the terms of settlement and misled the Tribunal, resulting into passing of an order on 28.09.2017, leading to dismissal of the company petition CP/69/2014. The gist of the said order is extracted hereunder: - "Mr. Gopi Narayanan Yadav, Representative for the Petitioner present. Counsel for R2 and R3 present and submitted that Forms No.SH4, in original, which are in blank and having signatures of R2 and R3 and attached the resignation of R3 are kept in the safe custody of the Registry may be handed over to the representative of the Petitioner. Based on this the representative of the Petitioner prayed for withdrawal of the petition. Therefore, he is directed to take the said documents from the Registry against proper receipt and to file the same before th....
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.... the company petition. It is contended by the Appellant that, the Company Secretary, who was then acting as an agent on his behalf, refused to move any such application for recall of the order dated 28.09.2017, by virtue of his communication, which was alleged to have been made on 03.05.2019. 11. It is the gap between 08.10.2017 until 03.05.2019, when there was an actual refusal of the Company Secretary to file a recall application as alleged by the Appellant, which is sought to be condoned by the Appellant while filing the application for recall that is, IA No. 1242/2019, which was supported with a Condone Delay Application that is, IA No. 1241/2019. He submits that, he made several phone calls to the Company Secretary and issued a letter on 13.06.2018 to him requesting to re-open the company petition, but there was an express reluctance and tacit denial shown on the part of the Company Secretary for filing of any application for reopening the company petition, that after several follow up messages and issue of detailed letters on 30.01.2019 and 30.04.2019, the Company Secretary finally gave in writing on 03.05.2019, his refusal to file an application for recall supported with ....
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....ative, who according to him was admittedly an authorized person as per Section 432 of the Companies Act to be read with Rule 119 of the NCLT Rules, 2016, the recall application has been filed with 594 days of delay and the only explanation which has been offered by the Appellant is that he was not informed by the Company Secretary of the fact of withdrawal the petition, is contrary to the records. 15. In support of his contention, qua the application for recall, the Appellant has argued it from two perspectives, that is, as follows: (i) The petition, that has been preferred under Section 241 of the Companies Act, 2013, cannot be withdrawn except with the leave of the Tribunal as contemplated under Rule 82 (2) of the NCLT Rules, 2016, which mandates that the withdrawal application has to be filed in Form 9. (ii) Since the proceedings under Section 397 of the Companies Act, 1956, are not private disputes confined to between few individuals and as they engage consideration of public interest at large, the same cannot be permitted to be withdrawn without ensuring the compliance of the provisions contained under Rule 82(2), NCLT Rules, 2016. 16. In order to meet ....
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.... of passing of the order of withdrawing the company petition, i.e., on 28.09.2017, the authority of the Company Secretary was withdrawn. It is also not the case of the Appellant that after passing of the order dated 28.09.2017, the information of passing of the order was not intimated by the Company Secretary which is apparent by issuance of the email that was sent by the Company Secretary on 08.10.2017, that is, within 10 days of the passing of the order. 19. In these eventualities, the Tribunal has rightly observed in the impugned order, that when the Appellant got the knowledge, of withdrawal of the company petition upon issuance of the email communication by the Company Secretary on 08.10.2017, and he kept silent for about two years, prior to filing of the application for the recall of the said order, the delay was indeed inordinate and unexplained, and the Tribunal has rightly rejected the Condone Delay Application. The consequential effect of the rejection of the Condone Delay Application, would be that the application for recall would automatically stand dismissed. 20. The controversy could be looked into from yet another perspective, that the application for Condonati....
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.... the Appellant himself from filing an application for recall of the order dated 28.09.2017, in face of alleged inaction on part of his agent, the Company Secretary subject to the condition that it was tenable in accordance with law. 22. There could be yet another aspect, which could be taken into consideration, while testing the impugned order on the parameters, which has been argued by the Appellant, admittedly from the contents of the order dated 28.09.2017. It apparently seems to be an order, which has been solicited by the Appellant himself through his authorised representative and therefore it will amount to be a consenting order. If the order was a consenting order, it cannot be recalled even by way of filing of an application under Rule 11 of NCLT Rules, 2016, by invoking the inherent powers of the Tribunal, because exercise of inherent powers could have been where the order was passed without a positive act or knowledge being taken from the Appellant for getting the company petition dismissed as withdrawn. In that eventuality, the recall cannot be utilized as a weapon to virtually solicit a review of an order dated 28.09.2017, which the Appellant himself had sought for, ....