2017 (8) TMI 802 - AT - Companies Law

Tribunal s general power to amend - mistake apparent on the face of the record - Held that - The appellant(s) filed the petition under Rule 154, which relates to rectification of order, if there is clerical or arithmetical mistakes in the order or error arising from any accidental slip or omission, as may occur. But such power cannot be exercised to review an order or judgment, in absence of clerical or arithmetical mistakes. We do not agree with the submission made on behalf of the counsel for the appellant that non-reference to any one or other judgment passed by the Appellate Tribunal or any court of law falls within the category of omission by the Tribunal. For the purpose of rectification of any order under Rule 154, the omission must be such, which should be related to the case. In absence of any evidence to show that a judgment of Appellate Tribunal or Court was referred, it cannot be accepted to be an omission by Tribunal. Further no Court or Tribunal is bound to refer all or any judgment cited by anyone or other party, whether relevant or irrelevant. For the reasons aforesaid and as the Tribunal has no general power to review its own order or judgment, we uphold the impugned orders dated 24th April, 2017 passed by Tribunal. Appeal from orders of Tribunal - Held that - As per sub-section (3) of Section 421, every appeal is required to be filed under sub-section (1) within 45 days from the date on which the copy of the order of the Tribunal is made available to the person aggrieved. As the Appellate Tribunal is empowered to entertain an appeal after expiry of the said period of 45 days from the date of receipt of the order but such power can be exercised only within a further period not exceeding 45 days that is total 90 days. If order(s) dated 26th September, 2016 were communicated the appellant(s) in October, 2016 actual date not supplied by the appellant(s) , even then, we find that now more than 9 months have passed and thereby the Appellate Tribunal has no power to condone the delay. For the said results, we express our inability to interfere with the impugned orders both dated 26th September, 2016 and reject such prayer.

Summary

Issues:
1. Jurisdiction of the National Company Law Tribunal to review its order passed under Section 441 of the Companies Act, 2013.

Analysis:
The appellant violated provisions of the Companies Act, 1956 and filed petitions for compounding the offenses under Section 441 of the Companies Act, 2013. The Tribunal dismissed the petitions, leading the appellant to file review applications citing omissions in considering relevant judgments. The Tribunal, in its orders dated 28th April, 2017, emphasized that review is distinct from an appeal and that compounding fees were imposed based on judicial discretion, considering the period of defaults, ultimately dismissing the review applications.

In the appeals challenging the orders, the appellant had initially deposited a lesser fee, but upon assurance of further deposit, the appeal was heard. The key issue raised was whether the Tribunal had the jurisdiction to review its order under Section 441 of the Companies Act, 2013. The Act does not explicitly empower the Tribunal to review its own orders and judgments, except for rectifying mistakes apparent from the record within two years, as per Section 420(2) of the Act.

The Tribunal's inherent powers under Rule 11 of NCLT Rules, 2016, allow it to make orders for justice and prevent abuse of process. However, Rule 154 specifically empowers rectification of clerical or arithmetical mistakes, not for reviewing judgments. The Tribunal's power to amend within 30 days from completion of pleadings is limited to procedural defects, not for reviewing orders on their merits.

The appellant's case did not fall under the category of a mistake apparent on the face of the record, warranting the Tribunal to exercise power under Section 420(2) of the Act. The Tribunal's inherent power under Rule 11 is not for reviewing orders post-disposal but for ensuring justice during proceedings. The appellant's reliance on Rule 154 for rectification did not apply as there were no clerical or arithmetical mistakes to rectify.

The Tribunal clarified that not referencing certain judgments did not constitute an omission requiring review. Courts are not obligated to refer to all cited judgments. Given the absence of a general power to review, the Tribunal upheld the orders dated 28th April, 2017. Regarding the original orders from September 2016, the Tribunal declined to review them on merit, citing finality under Section 421 of the Companies Act, as the appeal period had lapsed.

The Tribunal found no merit in the appeals, dismissing them without costs due to the extended delay beyond the appeal period specified under the Act.