2019 (4) TMI 1801 - Tri - Companies Law

Review/recall of order - power of Tribunal to review of its order - compliance with the provisions of Section 131 read with Section 128(1) of the Companies Act, 2013 - HELD THAT - This Tribunal not being a civil Court, has no power or authority to review its own order even if the new facts pleaded in the supplementary affidavit were not brought to the notice of the Tribunal when this case was argued on the side of the Applicant. Power of review of its own order is not mentioned in Section 424(2) of the Companies Act,2013. The prayer is not for rectifying any mistake apparent from the record, but for recalling of the order dated 24th January,2019. As per Section 420(2) of the Companies Act,2013 this Tribunal is empowered to amend the order if the mistake is brought to the notice by the parties within two years of the date of the order. The prayer of incorporation of crucial and necessary facts and documents cannot be entertained. The Petitioner has failed to place on record any justifiable reason for not placing those so called crucial and necessary facts at the stage of hearing and passing of the orders sought to be reviewed - The request of the Petitioner seeking to approve the proposed Scheme of demerger without compliance of the provisions of the Act, as directed, is declined. The prayer for recalling the order dated 24th January, 2019 is not maintainable.

Summary

Issues:
Compliance with Sections 131 and 128(1) of the Companies Act, 2013; Review of Tribunal's order dated 24th January, 2019; Power of Tribunal to recall its order; Incorporation of crucial facts and documents in a supplementary affidavit for reconsideration of the order.

Compliance with Sections 131 and 128(1) of the Companies Act, 2013:
The Tribunal had previously directed the applicant to comply with the provisions of Section 131 read with Section 128(1) of the Companies Act, 2013. Despite being given time to submit a revised financial statement, the applicant filed a Supplementary Affidavit later, seeking to include crucial facts and documents that were not presented during the initial hearing. The Tribunal noted that reconsidering these facts would amount to reviewing its earlier order, which is not within its authority as per the Companies Act, 2013.

Review of Tribunal's order dated 24th January, 2019:
The Tribunal clarified that it lacks the power to review its own order, even if new facts are presented in a supplementary affidavit after the initial hearing. While the Companies Act, 2013 allows for amendment of orders if mistakes are pointed out within two years, the Tribunal emphasized that the request to recall the order dated 24th January, 2019 is not permissible under the current circumstances.

Power of Tribunal to recall its order:
The Tribunal highlighted that it does not have the jurisdiction to recall its order dated 24th January, 2019, as the law does not provide for such a provision. The applicant's plea to reconsider the order based on new facts was deemed inadmissible, as the Tribunal emphasized that the request for recalling the order is not maintainable under Section 420(2) of the Companies Act, 2013.

Incorporation of crucial facts and documents in a supplementary affidavit for reconsideration of the order:
The Tribunal rejected the applicant's request to incorporate additional facts and documents through a Supplementary Affidavit for the reconsideration of the previous order. It emphasized that the applicant failed to provide a justifiable reason for not presenting these crucial facts during the initial hearing, and withholding them prevented the Tribunal from making informed decisions. Consequently, the Tribunal declined the request to approve the proposed Scheme of demerger without complying with the Act's provisions, as directed.

In conclusion, the Tribunal dismissed the applicant's plea for reconsideration of the order dated 24th January, 2019, emphasizing that the Tribunal lacks the authority to review its own orders and recalling the order is not permissible under the Companies Act, 2013. The applicant's failure to provide crucial facts during the initial hearing led to the rejection of their request for approval of the demerger scheme without complying with the Act's provisions.