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2018 (6) TMI 24 - Tri - Companies LawTribunal s power to review its order - mistake apparent from the record - Held that - 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 before the Company Law Board in the year 2016. After the constitution of this Tribunal Applications challenging maintainability were filed by more than one respondent with a prayer to dismiss the main petition on the ground of limitation, alleging 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.
Issues Involved:
1. Whether the Tribunal has the power to review its own order. 2. Whether the non-consideration of oral and written arguments and cited judgments constitutes a mistake apparent from the record. Issue-wise Detailed Analysis: 1. Power of Review: The Tribunal examined whether it possesses the authority to review its own orders. Section 420(2) of the Companies Act, 2013, and Rule 11 of the NCLT Rules, 2016, were scrutinized. Section 420(2) allows the Tribunal to rectify any apparent mistake within two years from the date of the order, provided no appeal has been preferred against such order. Rule 11 confers inherent powers to the Tribunal to make necessary orders to meet the ends of justice or prevent abuse of process. However, the Tribunal concluded that the power to review is not inherent and must be conferred by law either specifically or by necessary implication. The Tribunal found no provision in the Companies Act, 2013, or the NCLT Rules that expressly or impliedly grants it the power to review its own orders. Therefore, the Tribunal determined it lacks the authority to review its own orders. 2. Mistake Apparent from the Record: The Tribunal then addressed whether the non-consideration of oral and written arguments and cited judgments in its previous order constituted a "mistake apparent from the record." The Applicants argued that the Tribunal's failure to consider certain decisions (Praveen Shankaralayam v. Elan Professional Appliances, Esquire Electronics Inc. v. Netherlands India Communications Enterprises Ltd., and Sanjay Agarwal v. Meghalaya Finlease (P.) Ltd.) amounted to such a mistake. They relied on the Supreme Court's interpretation in Asstt. CIT v. Saurashtra Kutch Stock Exchange Ltd. [2008] 14 SCC 171, which defined a "mistake apparent from the record" as a patent, manifest, and self-evident error. The Tribunal acknowledged that it did not refer to the cited judgments in its order dated 29.05.2017. However, it emphasized that the issue of delay and latches was reserved for final hearing, and the Tribunal had observed that the allegations were of continuous oppression and mismanagement. The Tribunal noted that the decisions cited by the Applicants did not lay down a proposition of law applicable to all fact situations but were specific to their respective cases. The Tribunal found that non-consideration of these judgments did not constitute a mistake apparent from the record, as it did not meet the criteria of being a patent, manifest, and self-evident error. Conclusion: The Tribunal concluded that it does not have the power to review its own orders and that the non-consideration of the cited judgments did not amount to a mistake apparent from the record. Consequently, the applications filed by the original respondents 1 and 2 were dismissed.
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