TMI Blog2018 (6) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... eging delay/latches, no cause of action etc. These applications filed by original respondents 1 and 2 cannot be considered under Section 420(2) of the Companies Act, 2013 or under Rule 11 of NCLT Rules since there is no mistake apparent from the record in the order dated 29.05.2017. - I.A. No. 261 of 2017 in I.A. No. 23 of 2016 in Company Petition No. T.P. 125 of 2016, I.A. No, 292 of 2017 in I.A. No. 24 of 2016 in Company Petition No. T.P. 125 of 2016 - - - Dated:- 16-2-2018 - MR. BIKKI RAVEENDRA BABU AND MS. MANORAMA KUMARI, JJ. For The Applicant : Learned Advocate Mr. Amalpushp shrotri Mr. S K Batra For The Respondent : Mr Kunal Vaishnav with Mr himesh Naidu And L J Golani ORDER (Per : Hon'ble Mr. Bikki Raveendra Babu, Member Judicial) 01. Original respondents No. 1 and 2 in T.P. No. 125 of 2016 filed I.A. No. 23 of 2016 and I.A. No. 24 of 2016 respectively challenging maintainability of TP No. 125 of 2016 on the grounds of limitation, latches, no cause of action, suppression of material facts, approaching the court with unclean hands, Ashok Kumar Khosla has no jurisdiction to file this petition and on the ground that original respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevent abuse of the process of the Tribunal . 07. In view of Section 420(2) and Rule 14 of NCLT Rules it is clear that this Tribunal has got power to rectify the order if there is any mistake apparent from the record and if it is brought to the notice of this Tribunal within two years from the date of the order. 08. Here itself it is pertinent to refer to the judgment relied upon by the learned counsel appearing for the respondents 1 2 in Asstt. CIT v. Saurashtra Kutch Stock Exchange Ltd. [2008] 14 SCC 171. In that decision Hon'ble Supreme Court of India while interpreting Section 254(2) of the Income Tax Act has defined mistake apparent from the record 09. Learned counsel appearing for the Applicants contended that non-consideration of decision of jurisdictional court can be said to be a mistake apparent from the record, relying upon the aforesaid decision of Supreme Court. 10. It is contended by the learned counsel appearing for the Applicants that this Tribunal while passing order dated 29.05.2017 did not take into consideration the following decisions cited in IA No. 23 of 2016 and IA No. 24 of 2016: - (1) Praveen Shankaralayam's case (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no provision that confer power of review on this Tribunal either specifically or by necessary implication. It is settled law that power of review is not inherent power. Therefore, this Tribunal cannot exercise the power of review invoking Rule 11 of NCLT Rules. Therefore, the finding of this Tribunal is that, no power of review has been conferred on this Tribunal either expressively or impliedly in any of the provisions of the Companies Act, 2013 or in the NCLT Rules. 17. There is no dispute about the aspect that this Tribunal has got power to correct mistake apparent from the record . Therefore, the crucial question is what is mistake apparent from the record. 18. Main contention of the learned counsel appearing for the Applicants is that this Tribunal has not taken into consideration oral submission, written submissions and the decisions relied upon by the Applicants in IA No. 23 of 2016 and IA No. 24 of 2016 while passing order dated 29.05.2017. In this context it is necessary to refer to the judgment of Hon'ble Supreme Court relied upon by the learned counsel for the Applicants. Facts of the case in the judgment of Supreme Court in Saurashtra Kutch Stock Exchang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened . 21. Hon'ble Supreme Court after referring to the aforesaid judgment of the Constitution Bench of Supreme Court, held as follows: - 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 long-drawn-out process of reasoning on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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. In that view of the matter, the decision of NCLT, New Delhi in Praveen Shankaralayam's case (supra) has not been referred to in the order. The decision of NCLT in Praveen Shankaralayam's case (supra) holding that reasonable time for complaining about the case of oppression is three years applies only in cases where acts are not continuous acts of oppression and mismanagement in respect of the cases filed before coming into force of Companies Act, 2013. In case the decision in Praveen Shankaralayam's case (supra) is applied to all cases filed before coming into force of Section 433 of the Companies Act, 2013 they have to be dismissed on the ground of delay and latches if they are filed beyond three years irrespective of fact situation. Therefore, the decision of NCLT, Delhi Bench in the case of Praveen Shankaralayam's case (supra) does not laid down any proposition of law which applies to all cases irrespective of fact si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel appearing for the applicant for the purpose of order dated 29.05.2017 passed by this Tribunal does not lay down any proposition of law which applies to all fact situations. The issues involved on the maintainability of the company petitions depend upon the facts of the case. Therefore, the non-referring of the judgments relied upon by the learned counsel for the applicant in the order dated 29.05.2017 is not a mistake apparent from the record. 28. In fact, this Tribunal in the order dated 29.05.2017 held that the question of limitation in this case is mixed question of fact and law. Delay aspect has to be considered at the final hearing, the authority of Ashok Kumar Khosla to file this petition is upheld subject to the challenge pending in other courts. This Tribunal also held that the controversy regarding convening of EOGM has to be decided only at the time of final hearing. A reading of the entire order of this Tribunal dated 29.05.2017 only indicate that this Tribunal was not inclined to dismiss the petition without there being a final hearing considering the facts and circumstances of the case. It is pertinent to mention here that original petition was filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
