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TMI Blog2017 (8) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... years back on 15th October, 2012, prayer made in amendment petition being barred by limitation, the Tribunal was not competent to allow the amendment. In view of discussion as made above, impugned order cannot be upheld. We, accordingly, set aside the impugned order dated 10th March 2017 and direct the Tribunal to hear the petition on the basis of the pleadings as already made in the petition under Section 241 of the Companies Act, 2013, reply thereof and rejoinder, if any, filed. However, it will be open to the Tribunal to peruse any document and call for any document if it is satisfied related to the cause of action and allegation, originally made. It is desirable that the petition be disposed of expeditiously, more than three months having already passed - Company Appeal (AT) No. 100 of 2017 - - - Dated:- 21-7-2017 - Mr. Balvinder Singh And Mr. S.J. Mukhopadhaya, JJ. For The Appellant : Mr Amit Sibal, Senior Advocate, Mr Rakesh Kumar and Mr Nitesh Vasudeva, Advocates For The Respondent : Mr Somasekhar Sundaresan, Mr Rohan Deshpande, Mr Rishad A Choudhury, Mr Kulkarni Ninad and Mr Uddyam Mukherjee, Advocates. JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for the setting aside of the impugned judgment Ld. Counsel submitted that the Limitation Act, 1963 should be made applicable to the proceeding before the Tribunal, including the amendment to the pleadings to introduce a fresh cause of action. 5. Ld. Counsel for the Appellants further submitted that under the Companies Act, 1956 (hereinafter referred to as Act, 1956), the applicability of the provisions of the Limitation Act, 1963 was restricted only to proceedings under Section 10F of the Act, 1956, as per Section 10GE of the said Act. Section 433 of the Companies Act, 2013 specifically incorporates the Limitation Act, 1963 by reference. More particularly, the language of Section 433 of the Companies Act, 2013 makes it clear that the provisions of Limitation Act, 1963 shall 'as far as may be' apply to the proceedings or appeal before the Tribunal and Appellate Tribunal. 6. Ld. Counsel for the Appellants further submitted that in this context, judicial precedent with regard to the phrase 'as far as may be/as the case may be' has explicitly enunciated that all the provisions of the statute incorporated by reference (i.e. Limitation Act, 1963 in the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffected by the fraud becomes aware of being defrauded. Once these issues are taken into account, it is manifest that in exercise of its inherent powers and in accordance with the settled principles applicable to amendment of pleadings, the Ld. Tribunal is indeed empowered to grant on merits any amendment to pleadings. 12. The question arises for consideration are - (i) Whether the Tribunal is empowered to amend a petition under Section 241 of the Act, 2013 and if so, to what extent ? (ii) Whether the amendment sought for and allowed by Tribunal in the impugned order amounts to amendment with regard to a fresh cause of action ?; and (iii) Whether the amendment as sought for and allowed by the impugned order is barred by limitation ? 13. The Central Government in exercise of power conferred by Section 409 of the Companies Act, 2013 promulgated the National Company Law Tribunal Rules, 2016 (hereinafter referred to as NCLT Rules). Rule 155 of the NCLT Rules provides for general power to amend defect or error in any proceeding before the Tribunal, as quoted below:- 155. General power to amend. - The Tribunal may, within a period of thirty days from the date of comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sub- section (1), the Tribunal or, as the case may be, the Appellate Tribunal, shall record the reasons for not disposing of the application or petition or the appeal, as the case may be, within the period so specified; and the President or the Chairperson, as the case may be, may, after taking into account the reasons so recorded, extend the period referred to in sub-section (1) by such period not exceeding ninety days as he may consider necessary. 16. From the provisions as referred to above, we find that the Tribunal having power to regulate its own procedure, may exercise its discretion and permit any amendment to the pleadings within a period of thirty days from the date of completion of pleadings - (i) to rectify any defect or error in the proceeding before it, for the purpose of determining the real question or issues raised by or depending on such proceeding; and (ii) to facilitate expeditious disposal and determination of matters before it (as per Section 422 of the Companies Act, 2013). 17. As such the NCLT Rules in general do not provide right to the parties to file a petition for amendment of their respective pleading or prayer and the Tribunal is also n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 72, requisitioning any public record or document or a copy of such record or document from any office; (e) issuing commissions for the examination of witnesses or documents; (f) dismissing a representation for default or deciding it ex parte; (g) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and (h) any other matter which may be prescribed. (3) Any order made by the Tribunal or the Appellate Tribunal may be enforced by that Tribunal in the same manner as if it were a decree made by a court in a suit pending therein, and it shall be lawful for the Tribunal or the Appellate Tribunal to send for execution of its orders to the court within the local limits of whose jurisdiction, - (a) in the case of an order against a company, the registered office of the company is situate; or (b) in the case of an order against any other person, the person concerned voluntarily resides or carries on business or personally works for gain. (4) All proceedings before the Tribunal or the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228, and for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he legality of amendment of Article of Association as took place on 15th October 2012, unrelated to the allegation of 'oppression and mismanagement' made in the original petition. 24. As the amendment petition related to a different cause of action as took place in October 2012, we are of the view that the Tribunal was not competent to allow the petition for amendment with regard to separate cause of cause in respect of which no pleading was made nor any prayer made in the original application under Section 241. 25. Section 433 of the Companies Act, 2013 relate to 'limitation' as quoted below: Limitation - 433. The provisions of the Limitation Act, 1963 shall, as far as may be, apply to proceedings or appeals before the Tribunal or the Appellate Tribunal, as the case may be. 26. In C.N. Paramsivan (supra), the Hon'ble Supreme Court while dealing with provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 held that the expression as far as possible in relevant sections (Section 29 therein) only indicates that all those provisions of Act and Rules (Income Tax Rules therein) are applicable except those who do not have an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Companies Act, 2013 has been preferred. 31. In Radhika Devi v. Bajrangi Singh [1996] 7 SCC 486, the Hon'ble Supreme Court while dealing with Rule 17 of Code of Civil Procedure, 1908, held amendment of plaint seeking to take right of opposition party acquired by bar of limitation cannot be allowed. 32. In the present case, as the amendment sought with regard to a fresh cause of action which has taken place more than three years back on 15th October, 2012, prayer made in amendment petition being barred by limitation, the Tribunal was not competent to allow the amendment. 33. In view of discussion as made above, impugned order cannot be upheld. We, accordingly, set aside the impugned order dated 10th March 2017 and direct the Tribunal to hear the petition on the basis of the pleadings as already made in the petition under Section 241 of the Companies Act, 2013, reply thereof and rejoinder, if any, filed. However, it will be open to the Tribunal to peruse any document and call for any document if it is satisfied related to the cause of action and allegation, originally made. It is desirable that the petition be disposed of expeditiously, more than three months hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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