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2019 (7) TMI 1024 - HC - Companies LawMaintainability of application - Rule 9 of the Company (Court) Rules - approval of the scheme of amalgamation under Section 391 of the Act and not Section 394 of the Act - whether the present appeal, directed against an order dismissing a review petition is maintainable? - HELD THAT:- The approval of the scheme of amalgamation was under Section 391 of the Act and not Section 394 of the Act. The corresponding provision in the Companies Act, 2013 (‘2013 Act’) is Section 230. However, at the relevant time when the appeal was filed, the provision relevant for that purpose was Section 391(7) of the Act. Although in terms of the Companies (Second Amendment Act) 2002, Section 391 (7) stood omitted, the said amendment was to take effect only from date notified by the Central Government. The purpose behind omitting the Section 391 (7) of the Act was to provide jurisdiction in respect of the matters in relation to mergers and amalgamations to the National Company Law Tribunal (NCLT) which was constituted under the 2002 Amendment. Till such time the NCLT was not constituted, there was no question of matters involving Section 391 of the Act being transferred to it. The NCLT came into being finally when the 2013 Act came into force 1st June 2016. The fact remained that when the appeal was filed on 18th February 2013, Section 391(7) of the Act continued in the statute book. The entire 2002 Amendment omitting Section 391(7) of the Act stood repealed finally only on 14th May 2015 with the passing of the Repealing and Amendment (Second) Act, 2015. This Court is also not persuaded with the plea of the Appellant that he was not seeking a review of the main order by filing CA 730 of 2002 but invoking the inherent jurisdiction on the basis that a fraud had been committed by the answering Respondents - The Appellant was seeking to explain away the limitation on that basis since he was seeking a review of the main order nearly three years after it was passed. Once it is clear that CA 730 of 2002 was nothing but a review petition, the corollary is that the impugned order is one that dismisses a review petition and against such order no appeal is maintainable. The present appeal is not maintainable and is dismissed as such.
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