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TMI Blog2019 (7) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... was not constituted, there was no question of matters involving Section 391 of the Act being transferred to it. The NCLT came into being finally when the 2013 Act came into force 1st June 2016. The fact remained that when the appeal was filed on 18th February 2013, Section 391(7) of the Act continued in the statute book. The entire 2002 Amendment omitting Section 391(7) of the Act stood repealed finally only on 14th May 2015 with the passing of the Repealing and Amendment (Second) Act, 2015. This Court is also not persuaded with the plea of the Appellant that he was not seeking a review of the main order by filing CA 730 of 2002 but invoking the inherent jurisdiction on the basis that a fraud had been committed by the answering Respondents - The Appellant was seeking to explain away the limitation on that basis since he was seeking a review of the main order nearly three years after it was passed. Once it is clear that CA 730 of 2002 was nothing but a review petition, the corollary is that the impugned order is one that dismisses a review petition and against such order no appeal is maintainable. The present appeal is not maintainable and is dismissed as such. - Company Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Appellant on 19th February, 1998. Another agreement had been arrived at on 21st February, 1998. According to the Appellant in terms of the family settlement dated 19th February 1998, eight properties were to be transferred in his favour. 5. It had further been agreed that ₹ 2.5 crores were to be paid to the Appellant by Respondents Nos.4, 5 and 6. As quid pro quo the Appellant agreed to transfer his shares in TEL, MAML and SCIL in favour of Respondent No.6. Accordingly, on 21st February, 1998 his shares in the aforementioned three companies were transferred by him in favour of Respondent No.4. Eight gift deeds dated 26th February, 1999 for the properties set out in the family settlement were executed in favour of the Appellant and Respondents Nos. 11 and 12. However, the deeds with respect to only four of those properties were registered in favour of the Appellant and Respondents No.11 and 12. According to the Appellant by failing to register the remaining four properties, the Respondents 4 to 6 had dishonoured the family settlement. Two of these properties belonged to TEL. 6. As far as the sum of ₹ 2.5 crores was concerned, according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointed a Local Commissioner (LC) to inspect the record of TEL both at the office of the Registrar of Companies (ROC) as also in the registered office of the Company itself. The LC s report revealed that there were nine shareholders of TEL as per the register of members and name of the Appellant did not find mention therein. The register of members maintained at the registered office of TEL was initialled as far back as on 24th July 2002 at the stage of first visit by the earlier LC. Therefore, this was not a tampered document. On the other hand, the records of TEL with the office of the ROC raised serious doubts since some pages missing. 12. The learned Single Judge concluded that the name of the Appellant did not appear in the list of registered members and, therefore, no notice was required to be sent to him. The learned Single Judge also noted that the Appellant only filed photocopies of the transfer forms and the original thereof had not been produced. A letter dated 2nd March 1998 of TEL stated that the original share transfer forms had been given to the Appellant. The share transfer forms were unstamped and therefore the requirements of Section 108 of the Act h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween a petition seeking review of an order and that seeking its recall. As explained in the Vishnu Aggarwal v. State of UP (2011) 14 SCC 813 inasmuch as the learned Single Judge has in the impugned order considered the merits of the Appellant s arguments regarding the validity of the order approving the merger of TEL and MAML with SCIL under Sections 391 and 394 of the Act, the impugned order has to be treated as having dealt with the application of the Appellant as an application seeking review. (iv) In terms of Order 47 Rule 7 read with Order 43 Rule 1 (w) of the Code of Civil Procedure, 1908 (CPC) an order declining review is not an appealable order. Reliance is also placed in decisions in Vinod Kapoor v. State of Goa (2012) 12 SCC 378, Shanker Motiram Nale v. Shiolalsing Gannusing Rajput (1994) 2 SCC 753 and Shiv Charan Singh v. State of Punjab (2007) 15 SCC 370 . (v) An order declining a review is not a judgment within the ambit of Section 10 of the Delhi High Court Act (DHC Act). Reliance is placed on the decisions in Government of NCT of Delhi v. Mool Chand Sharma 2013 (135) DRJ 705 and Basant Kharbanda v. Punjab Sind Bank 65 (1997) DL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 483 of the Act. He accordingly submitted that the present appeal ought to be treated as one under Section 391 (7) of the Act. There could never be a situation where the party is left remediless. (d) The application for recall was not seeking review of the order dated 20th September 1999 in terms of Order 47 CPC but was on the ground that a fraud had been committed by the contesting Respondents. Therefore, the application was maintainable. Reliance was placed on the decision in Kuldeep Gandotra v. Union of India 2007 (136) DLT 44 . Analysis and reasons 18. The above submissions have been considered. It is to be noticed that the approval of the scheme of amalgamation was under Section 391 of the Act and not Section 394 of the Act. The corresponding provision in the Companies Act, 2013 ( 2013 Act ) is Section 230. However, at the relevant time when the appeal was filed, the provision relevant for that purpose was Section 391(7) of the Act. Although in terms of the Companies (Second Amendment Act) 2002 ( 2002 Amendment ), Section 391 (7) stood omitted, the said amendment was to take effect only from date notified by the Central Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order is one rejecting a review petition. There is a distinction between an application for recall of an order and one seeking its review . In Asit Kumar v. State of West Bengal 2009 (1) SCR 469 , the Supreme Court observed: There is a distinction between ...... a review petition and a recall petition. While in a review petition, the Court considers on merits whether there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. 23. This was reiterated in Vishnu Aggarwal v. State of UP (supra). Once this becomes clear, then the question that arises is whether the present appeal, directed against an order dismissing a review petition is maintainable? As righty pointed out by Mr. Sibal, an order declining review is not an appealable order on a collective reading of Order 47 Rule 7 and Order 43 Rule 1 (w) CPC. In Bussa Overseas and Properties Private Limited v. Union of India (2016) 4 SCC 696 , the Supreme Court explained the legal position thus: 30. The decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant that he was not seeking a review of the main order by filing CA 730 of 2002 but invoking the inherent jurisdiction on the basis that a fraud had been committed by the answering Respondents. As rightly held by the learned Single Judge, when the remedy of an appeal was available to the Appellant, the inherent jurisdiction was not to be exercised. The fact of the matter is that Appellant was indeed seeking a review and the ground for that was the alleged fraud committed by the Respondents, which incidentally has been disbelieved by the learned Single Judge. The Appellant was seeking to explain away the limitation on that basis since he was seeking a review of the main order nearly three years after it was passed. Once it is clear that CA 730 of 2002 was nothing but a review petition, the corollary is that the impugned order is one that dismisses a review petition and against such order no appeal is maintainable. Consequently, the decision of this Court in Kuldeep Gandotra v. Union of India (supra) is of no assistance to the Appellant. 27. Viewed from any angle, therefore, the present appeal is not maintainable and is dismissed as such. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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