TMI Blog2022 (3) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... n order accordingly - The power of Review is not an Inherent Power and Rule 11 of the National Company Law Rule, 2016 cannot be pressed into service. Furthermore, there is no express provision that showers Power of Review upon the National Company Law Tribunal either in an express fashion or by means of necessary implications, as the case made be. As far as the present case is concerned, even though the Appellant has preferred the instant Company Appeal (AT)(CH) 11 of 2022 before this Tribunal, as against the impugned order dated 11.03.2020 in IA No. 29/KOB/2020 in TCP/21/KOB/2019, under Section 421 of the Companies Act, 2013, since the Central Government has established the Serious Fraud Investigation Office to investigate fraud relating to a Company and that the Central Government is to assign the investigation into affairs of a Company by Serious Fraud Investigation Office and its Director may designate such numbers of Inspectors, as he may consider necessary, for the purpose of such investigation vide Section 212 of the Companies Act, 2013 by following the procedure under Section 213 of the Companies Act, 2013, in stricto sense of the term. When the Prime Grievance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Interim Administrator to look into the affairs of the Company . 5. The Learned Counsel for the Appellant points out that the National Company Law Tribunal, Chennai on 31.10.2018 had appointed Hon ble Mr. Justice Narayana Kurup (Retd.) as an Administrator superseding the Board in existence, to carry on the Functions of the Company until further orders. Moreover, with the formations of the National Company Law Tribunal, Kochi Bench , the case was transferred to the said Bench and the petition was renumbered as TCP/21/KOB/2019. 6. The Learned Counsel for the Appellant proceeds to point out that the Hon ble Administrator submitted an Interim Application before the Tribunal Kochi Bench and in I.A. No. 29/KOB/2020, it was mentioned that, in order to comply with the directions of the National Company Law Tribunal, Chennai , the Hon ble Administrator had requested the then Managing Director, to make available all the Documents required for the purpose of complying with the directions of the Tribunal Chennai and that despite several requests and even after the directions of the National Company Law Appellant Tribunal , New Delhi, and the Hon ble Tribunal , t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that only the Central Government is authorised to accord sanction to initiate an Investigation against the Company and its Officers , who are in Default as per section 210(2)(3) of the Companies Act, 2013. In this connection, the Learned Counsel for the Appellant refers to the Judgment of this Appellate Tribunal dated 02.12.2019 (3 Member Bench) in Union of India, Through Serious Fraud Investigation Office (SFIO) v. Maharashtra Tourism Development Corporation Anr. [vide Company Appeal (AT)(INS) No. 964/2019 with Company Appeal (AT)(INS) No. 965/2019] wherein it was held that an Adjudicating Authority was not competent to straightway direct any investigation to be conducted by the Serious Fraud Investigation Office . However, the Adjudicating Authority being empowered to pass an order under Section 213 of the Companies Act, 2013, it is always open to the Adjudicating Authority / Tribunal to issue a Notice in regard to the aforesaid Charges to the Promoters and others (including) Union of India Through SFIO and after following the procedure laid down in Section 213 of the Companies Act, 2013, if a prima facie is made out, it can refer the matter to the Central Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s , Headquarters, after obtaining the legal advice had instructed the Appellant to file an Appeal against the impugned order dated 11.03.2020 in I.A. No. 29/KOB/2020 in TCP/21/KOB/2019 and to furnish a Report to be placed before the Internal Committee appraising it, of the facts to take considered view in regard to the desirability of SFIO Investigation . 16. According to the Learned Counsel for the Appellant, the request of the Regional Director , Southern Region, Chennai, in November-December, 2020, to modify the instruction for an Appeal into one of a Review Petition in order to avoid travel to Delhi, during Pandemic was not acceded to. Further, because of the establishment of National Company Law Appellate Tribunal, at Chennai, the instant Appal came to be filed. 17. To be noted, Section 210 of the Companies Act, 2013 deals with Investigation into affairs of Company . Section 211 of the Companies Act, 2013 speaks of establishment of Serious Fraud Investigation Office. Section 212 of the Companies Act, 2013 pertains to Investigation into affairs of Company by Serious Fraud Investigation Office . Section 213 of the Companies Act, 2013 Investigation into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, there being an element of indefiniteness inherent in its very nature and it must be left to be decided judiciously, on the facts of each case. 23. It is to be remembered that the Companies Act, 2013 does not clothe the Tribunal to Review its own order and Judgment . But Section 420(2) of the Companies Act, 2013 is empowering the Tribunal to act any time within two years from the date of the order in order to rectify any mistake apparent from the record, amend any order passed by it and to make such amendment, if a mistake is brought to its notice by the Litigants/Stakeholder. Undoubtedly, a Tribunal has no inherent power of review as per Civil Procedure Code. However, the Tribunal has the requisite power to set right/rectify any mistake apparent from record and to amend an order accordingly, as per decision APC Credit Rating (P) Ltd. v. Registrar of Companies, NCT New Delhi reported in (2017) 205 Comp Cas 492 at pages 494 495. 24. The power of Review is not an Inherent Power and Rule 11 of the National Company Law Rule, 2016 cannot be pressed into service. Furthermore, there is no express provision that showers Power of Review upon the National Company Law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India (through Serious Fraud Investigation Office) ought to have preferred the Appeal against the impugned order dated 11.03.2020. However, such recourse has not been resorted to. Viewed in that perspective, this Tribunal unresistingly comes to a consequent conclusion that the Appellant/Registrar of Companies, Kerala is not the proper and competent person to prefer the instant Company Appeal (AT)(CH) No. 11 of 2022. Per contra, the Central Government (Union of India, through Serious Fraud Investigating Office) is the appropriate person/Primary Authority to prefer an Appeal , as an Aggrieved Person , as per Section 421(1) of the Companies Act, 2013. Therefore, the Appeal as framed and filed by the Appellant is per se not maintainable in the eye of law, it is an otiose one and it fails. 28. In view of the foregoing detailed discussions and reasons, the instant Company App (AT)(CH) No. 11/2022 is dismissed. No costs. I.A. No. 114/2022 is closed. It is made quite clear that the dismissal of the instant Company Appeal (AT)(CH) No. 11/2022 will not preclude the Central Government (Union of India through Serious Fraud Investigation Office) in assailing the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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