9911796707
TMI Blog2018 (11) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... Trust would be enough. However, in the matter of delay and latches, it is always mixed question of law and facts. Going through the Impugned Judgement of the NCLT, we find that it is very well reasoned and there is no error in the Judgement. The NCLT has rightly concluded that it could not review the Judgement dated 29th May, 2017 and the effort to say that there is error apparent on record to recall the whole Judgement dated 29th May, 2017 and rewrite the same after taking note of the Judgements and arguments Appellants wanted to rely on, was clearly not acceptable. Such exercise cannot be said to be error apparent on the face of record in the set of facts which we have. There is no substance in these Appeals. Each of these Appeals is dismissed - Company Appeal (AT) No.105 of 2018, Company Appeal (AT) No.107 of 2018, Company Appeal (AT) No.108 of 2018, Company Appeal (AT) No.110 of 2018, Company Appeal (AT) No.111 of 2018 And Company Appeal (AT) No.112 of 2018 - - - Dated:- 8-8-2018 - Mr A.I.S. Cheema, Member (Judicial) And Mr Balvinder Singh, Member (Technical) For The Appellant : Shri S.K. Batra, PCS For The Respondents : Shri Anurag Sharma and Shri Sunil Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agree that in all the matters, similar facts are involved and same question of law is arising and thus, all these appeals may be considered and disposed together. Counsel for both sides agreed and they have argued these Appeals referring to the record of Company Appeal 105 of 2018 as the lead case. Both the counsel agree that in these matters, similar worded Impugned Orders are there and thus these Appeals can be and may be decided with same Order. 3. Referring to the record of Company Appeal 105/2018, we are proceeding to decide these Appeals. 4. Copy of the Company Petition TP 120/2016 is at Annexure A-2 (Page 59). The original Petitioner is M/s. Alliance Industries Limited who filed the petition through Director, Ashok Kumar Khosla against Respondent No.1 M/s. Peoples General Hospital Private Limited (present Appellant). Respondent No.2 Suresh Narayan Vijay is also Respondent in the Company Petition. There are 3 other Respondents but they are not made party here in the Appeal. In the matters - IA 16/2016, 17/2016 and 18/2016 came to be filed by Respondents raising grievances, inter alia, regarding limitation and delay and latches. The learned NCLT after hearing the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and law. Therefore, it is held that no limitation is provided for filing this petition in January, 2015 under Section 397 and 398 of the Companies Act, 1956. Even assuming that limitation act is applicable for the rights of facts and circumstances it assumes it would be a mixed question of facts and law. 9. Coming to the aspect of delays and latches unless and until the events relegation made by the parties are closely scrutinised by making reference to the documents, context of the parties and consequences of the actions, it is not possible to judge whether the delay and latches are there on the part of the petitioner or not and it is voluntary delay or delay in action on account of any other factor can be judged only after initial hearing of the matter. 5. The other grievances raised (with which we are not concerned here) were also dealt with and learned NCLT passed Orders that it did not see any ground to dismiss the original Petition without conducting a final hearing. Consequently, it dismissed the IAs. 6. It appears that Appellants did not go in appeal against above Orders. Appellants later filed IAs in the Company Petitions. In Company Appeal 105 of 2018, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to the IA 16/2016 which had been filed, and in the Reply gave certain admissions like the alleged illegal transfer of investment to Trust arose between 2001 2006; cause of action in alleged buy-back of shares by Respondent No.2 Appellant arose on 01.09.2006; cause of action on account of failure to arrive at settlement arose in 2010, 2013 and 2014 and cause of action on account of Notice of requisition of EOGM, rejection thereof arose in 2014. Based on this, the learned counsel for the Appellant submitted that the Appellant had in the IA 16/2016 claimed that the Company Petition has to be filed in reasonable time and even under the old Act, 3 years was the period specified as can be seen in the Judgement of Praveen Shankaralayam vs. M/s Elan Professional Appliances Pvt. Ltd. Ors. - 2016 SCC Online NLCT 85. According to the counsel, the Appellants relied on this Judgement to claim that the Petition was hopelessly delayed and deserved to be dismissed. The Appellants had also relied on the case of (1) Esquire Electronics vs. Netherlands India Communications Enterprises Ltd. - 2016 SCC Online NCLT 71 and (2) Sanjay Agarwal and another vs. M/s. Meghalaya Finlease Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Company Petition was never questioned when it was filed and it is not the case of the Appellants that the original Company Petition read as a whole would show that the petition was time barred. It is argued that there were various instances pointed out in the Company Petition running up to the year of 2015 when efforts on settlements failed and the learned NCLT has accepted in the Order dated 29th May, 2017 that the case put up by original Petitioners related to continuous acts of oppression and mismanagement. It has been argued by the learned counsel for Respondents that the Appellants are trying to show by referring to the Judgements relied on by them and their written arguments to say that if the same would have been considered along with the facts of the present matter, the Company Petitions should have been held to be time barred. The argument is that if one has to indulge in such exercise, it cannot be said to be error apparent on the face of record. Thus according to him, there is no reason to allow these Appeals and the Impugned Orders passed by NCLT are correct. 10. Having heard the counsel for both sides, we have gone through the record and Judgements referred to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions:- It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to [our] notice from which it could be gathered that the Government had power to review its own order. If the government had no power to review its own order, it is obvious that its delegate could not have reviewed its order. 13. On such basis, the learned NCLT concluded that power of review is not an inherent power and is required to be conferred either specifically or by necessary implication. 14. NCLT concluded that it did not have the power to review its Order. We find ourselves in agreement with such reasonings recorded by NCLT for concluding that it did not have the power to review even by invoking the inherent powers. The learned counsel for the Appellants has now accepted that NCLT did not have power of review of its own Orders. Looking to the application which had been filed (Annexure A-7) which had in form and substance sought review, NCLT should have rejected the application once it concluded that it did not have power of review. We are not impressed by the argument o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhagwati v. CIR reported in (2000) 246 ITR 188 wherein the Hon ble High Court of Gujarat held that the trust could claim such exemption, passed order since it was not brought to its notice when the order was passed. Subsequently when assesse came to know about the judgement of Hon ble High Court of Gujarat wherein it is held that trust is entitled for exemption, brought the same to the notice of the Tribunal by filing application under Section 254 (2) of the IT Act to correct the order stating that it is a mistake apparent from the record. Income-tax Appellate Tribunal corrected the mistake. Revenue Department carried the matter to Hon ble High Court of Gujarat. Hon ble High Court upheld the order of Income-tax Appellate Tribunal in recalling the order. Revenue Department carried the matter to Hon ble Supreme Court. That is how the matter came up before Hon ble Supreme Court. Hon ble Supreme Court held that the decision of Hon ble High Court of Gujarat on the aspect whether a trust is entitled for certain exemption from income-tax or not is pending in Income Tax Appellate Tribunal and when such decision is not brought to the notice of the Tribunal when the order was passed bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed by the Income Tax Appellate Tribunal. When the same was brought to the notice of the Tribunal, it accepted that it was error apparent on the face of record. If a Trust is entitled to exemption has been held by the High Court, in the jurisdiction of the High Court in view of Article 227 of the Constitution of India, it would be the applicable law. It would have to be applied universally in that jurisdiction and pointing out the assesse to be Trust would be enough. However, in the matter of delay and latches, it is always mixed question of law and facts. Here the Judgement passed was by another Bench of NCLT in the matter of Praveen Shankaralayam vs. M/s Elan Professional Appliances Pvt. Ltd. Ors. It had remained to be discussed in the Order dated 29th May, 2017. It was not something which had laid down a law of universal application. The Judgement discussed the provisions of law, binding precedents and discussed the facts of that matter to hold the Petition therein as time barred. Thus, we are not impressed by the arguments that only because the NCLT in Order dated 29th May, 2017 had not discussed the said Judgement of Praveen Shankaralayam vs. M/s Elan Professional App ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
