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TMI Blog2023 (12) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... fication of the Appointed Date to 01.10.2020, which was dismissed on the ground that NCLT did not have the power to review its own order. It is seen from the record that the Appointed Date as per the Scheme is 01.10.2020 and the same is within a period of one year from the date of filing of the Application for Approval of the Scheme with NCLT i.e., 29.09.2021 . It is relevant to rely on the Judgment of this Tribunal, in which matter, this Tribunal placed reliance on the Judgment of the Hon ble Apex Court in Miheer H. Mafatlal v. Mafatlal Industries Limited., [ 1996 (9) TMI 488 - SUPREME COURT] , in which case, the Court had laid down the broad contours of the jurisdiction of the Company Court in granting a sanction to the Scheme holding that jurisdiction of the Company Court while sanctioning the Scheme is supervisory only, i.e., to observe that the procedure set out in the Act is met and complied with and that the proposed scheme of compromise or arrangement is not violative of any provision of law, unconscionable or contrary to public policy. The Court is not to exercise the appellate jurisdiction and examine the commercial wisdom of the compromise or arrangement arrived at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated in the Scheme approved by NCLT, Mumbai. 2. The NCLT while fixing the Appointed Date as 01.10.2020, reasoned as follows: 7.1.9. Due to such an interpretation being given to Section 232(6) of the Companies Act, 2013, the Ministry of Corporate Affairs (MCA) received several queries which it has addressed by way of the circular. It has relied on the rulings of the Hon'ble Apex Court in Marshall Sons Co. India Limited (supra) and the Hon'ble Madras High Court in Equitas Housing Finance Limited and Equitas Micro Finance Limited with Equitas Finance Limited in C.P. Nos. 119 to 121 of 2016 as the basis for its clarification. On a perusal of the clarification issued by the MCA vide its General Circular No.09/2019 on 21.08.2019, posits the following facts; The 'Appointed Date' can be a specific calendar date or be tied to the occurrence of an event e.g., grant or transfer of licenses, the fulfilment of conditions precedent, etc. (prospective date). If the Appointed Date' is a calendar date, it may precede the date of applying for the Scheme before the NCLT. If the Appointed Date is predated by a year or more from the date of applying wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to the Appointed Date as given by the Petitioner Company, this Tribunal in terms of Clause 1.2 of Part I of the Scheme hereby fix the Appointed Date as 01.10.2022. 3. The Learned Senior Counsel Mr. Krishnendu Datta submitted that NCLT has failed to consider that the Chennai First Motion Application was filed on 29.09.2021 by the Appellants and therefore the Appointed Date, mentioned in the Scheme was not antedated, beyond a year from the date of filing of the First Motion Application. 4. It is submitted that as per the MCA General Circular No. 09 / 2019, F.No. 7 / 12 / 2019 / CL I, dated 21.08.2019 (hereinafter referred to as the MCA Circular ), no reasons were required to be provided for the said Appointed Date, since it was not ante-dated, beyond a year from the date of filing of the Chennai First Motion Application. It is argued that since NCLT, Mumbai, had by way of an Order dated 06.06.2022, already sanctioned the Scheme with the Appointed Date as 01.10.2020, the impugned order by changing the Appointed Date to 01.10.2022, has made the Scheme unworkable. 5. The Learned Senior Counsel for the Appellant drew our attention to Clause 1.9 of Part I of the Scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e specifically brought out in the scheme and it should not be against public interest. 11. Clause 1.2 of the Scheme provides that Appointed Date means, October 1, 2020, or such other date as may be fixed or approved by the National Company Law Tribunal or any other appropriate authority. 12. It is not in dispute that the NCLT, Mumbai had already sanctioned the Scheme with the Appointed Date of 01.10.2020, vide Order dated 06.06.2022. In the IA filed on 31.03.2023, the Appellants had sought for rectification of the Appointed Date to 01.10.2020, which was dismissed on the ground that NCLT did not have the power to review its own order. It is seen from the record that the Appointed Date as per the Scheme is 01.10.2020 and the same is within a period of one year from the date of filing of the Application for Approval of the Scheme with NCLT i.e., 29.09.2021 . 13. At this juncture, it is relevant to rely on the Judgment of this Tribunal, reported in 2021 SCC OnLine NCLAT 548, in which matter, this Tribunal placed reliance on the Judgment of the Hon ble Apex Court in Miheer H. Mafatlal v. Mafatlal Industries Limited., (1997) 1 SCC 579, in which case, the Court had laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Court will have no further jurisdiction to sit in appeal over the commercial wisdom of the majority of the class of persons who with their open eyes have given their approval to the scheme even if in the view of the Court there would be a better scheme for the company and its members or creditors for whom the scheme is framed. The Court cannot refuse to sanction such a scheme on that ground as it would otherwise amount to the Court exercising appellate jurisdiction over the scheme rather than its supervisory jurisdiction. It is the commercial wisdom of the parties to the scheme who have taken an informed decision about the usefulness and propriety of the scheme by supporting it by the requisite majority vote that has to be kept in view by the Court. The Court has neither the expertise nor the jurisdiction to delve deep into the commercial wisdom exercised by the creditors and members of the company who have ratified the Scheme by the requisite majority. Consequently the Company Court's jurisdiction to that extent is peripheral and supervisory and not appellate. The Court acts like an umpire in a game of cricket who has to see that both the teams play their game according ..... X X X X Extracts X X X X X X X X Extracts X X X X
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