Ashok Kriplani vs Konduru Prasanth Raju

NATIONAL COMPANY LAW APPELLATE TRIBUNAL CHENNAI BENCH (APPELLATE JURISDICTION) IA No. 59 / 2024 (Review Petition) in TA (AT) No. 79 / 2021 (Company Appeal (AT) (Ins) No. 851 / 2020) (IA No. 432/2021 and IA Nos. 191 & 329 / 2023)

In the matter of : Ashok Kriplani, Erst. RP of Dreamz Infra India Ltd. ...Appellant V Konduru Prasanth Raju, RP of Dreamz Infra India Ltd. & 17 Ors. ...Respondents

Present:

For Applicant : Mr. Ashok Kriplani (Party-in-Person)

For Respondents : Ms. R. Neha, Advocate for R1

ORDER

(Hybrid Mode)

25.06.2024:

This TA No. 79 / 2021 was initially instituted before the Principal

Bench, as Comp. App (AT) (INS) No. 851 / 2020 and was later on transferred

to the Chennai Bench, on Administrative grounds. The challenge given by the

above Appeal, under the Appellate provisions of Section 61 of the I & B Code,

2016, was to a Common Order, rendered on 04.09.2020.

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2. The said Company Appeal came up for consideration before this Court

and it was finally adjudicated upon by a Judgment rendered on 07.06.2023.

By the Judgment dated 07.06.2023, the Appellate Tribunal did not found any

substantial legal error committed by the learned Adjudicating Authority,

while deciding the Company Petition and accordingly, dismissed the Appeal.

3. Being aggrieved against the said Judgment of this Appellate Tribunal,

the Appellant had taken the matter before the Hon'ble Apex Court and the

Hon'ble Apex Court has dismissed the Appeal, Qua the Impugned Judgment

under challenge, leaving it ``open to the Applicant to file a Review

Application'', and if the same is done, the same i.e. Review was required to

be decided ``in accordance with Law''.

4. Consequently, the Review Application has been preferred by the

Applicant / Appellant, on 25.11.2023, which is under consideration.

5. The Review Applicant-in-person had pressed upon the Review

Application on merits contending thereof, that since, it has been preferred on

the basis of the directives issued by the Hon'ble Apex Court in its Judgment

of 19.10.2023, the same would be maintainable, before this Court and in

context thereto, he has made reference to Article 142 of the Constitution of

India. Article 142 of the Constitution of India is extracted hereunder:

``142. Enforcement of decrees and orders of Supreme Court and

orders as to discovery, etc.:

IA No. 59 / 2024 (Review Petition) in TA No. 79 / 2021 (CA (AT )(INS) No. 851 / 2020) 2 of 9 (1)The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be ``prescribed'' by or ``under any law made by Parliament'' and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

(2)Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.''

6. If the language of Article 142 and its intention prescribed by the

Constitutional mandate, is considered, it only deals with the aspect of

enforceability of a Judgment of a Court of Law, within the territory of India

and that enforceability has been restricted, that it has to be in such manner, as

may be prescribed ``by or under any Law made by the Parliament''. The

relevance herein would be to the words used under Article 142 i.e.

``prescribed by or under any Law made by the Parliament''. In order to answer

the implications of Article 142 , as it has been argued by the Learned

Applicant to the Review Petition, the interpretation of Article 142 has to be

dissected in its applicability in the present circumstances when the Review

IA No. 59 / 2024 (Review Petition) in TA No. 79 / 2021 (CA (AT )(INS) No. 851 / 2020) 3 of 9 Application which has been preferred, is ``prescribed''. The word

`prescribed', herein under a normal legal connotation means prescribed in

accordance with Law, and for the said purpose, the word ``prescription'', has

been dealt with in the Oxford Dictionary, which means that ``any particular

Law'', which is being codified by the Statute or by the Law Makers''. It

is the said prescription which is the condition precedent for meeting out the

intention expressed under Article 142, about the enforceability of a Judgment,

Order or a Decree passed by the Court.

7. The said expression as given under Article 142, is subsequently

followed with ``under any Law made by the Parliament'', meaning

thereby, the enforceability of an Order has to be in accordance with Law

prescribed and that too a Law which has been made by the Parliament, and in

the instant case I & B Code, 2016, since the proceedings have been taken

under this Law.

8. It's a Law which has been prescribed by the Statute and being

enforceable within the territory of India, meaning thereby, the Power of

Review, should prescribe for a Review of a Judgment already rendered. It

cannot be read, as if, it was an enforceability of a Judgment, in accordance

with Law, which could be brought within the ambit of Article 142, and even

otherwise also, the expression as made by the Applicant in person, by reading

the said provision of Article 142, as if, the directives of the Hon'ble Apex

IA No. 59 / 2024 (Review Petition) in TA No. 79 / 2021 (CA (AT )(INS) No. 851 / 2020) 4 of 9 Court as rendered on 19.10.2023, would mean to enforce the Order of granting

liberty to prefer a Review, is an expansion of the implication of Article 142

even much beyond the principle mandate of Law, particularly, when a Review

since being a creation of Statute, is not contemplated under the I & B Code,

2016.

9. It obviously meets out the directives issued by the Hon'ble Apex Court

in its Order of 19.10.2023, where the Hon'ble Apex Court has left it ``open''.

``Open'' herein means is that it is not a direction to sustain a Review; it is

only a liberty granted to the Applicant to file a Review, and if he does so,

obviously, it was to be decided ``in accordance with Law''. Law herein

would mean under the Law, as ``prescribed'' by the Constitution, under the

Statute. Since, I & B Code, 2016, does not prescribe for a Review, this will

not be a Law by way of prescription, under the Statute to sustain a Review

Petition, on the basis of the argument extended by the Applicant in the light

of the provisions contained under Article 142 of the Constitution of India.

10. The Applicant in support of his contention, particularly, in the context

of the argument extended in the light of the implications of Article 142 had

made reference to the various decisions of the Hon'ble Apex Court as it has

been rendered in number of cases for e.g., the one reported in AIR 2010 SC,

Page 229, Anil Kumar Jain V. Maya Jain, which dealt with as to what would

be the implication of Article 142 for the purposes and scope of enforcement

IA No. 59 / 2024 (Review Petition) in TA No. 79 / 2021 (CA (AT )(INS) No. 851 / 2020) 5 of 9 of a Decree rendered in a proceedings which was held under the Hindu

Marriage Act. The Applicant has particularly pressed upon Para 18 & 19 of

the said Judgment, which is extracted hereunder:

``18. The second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other Courts can exercise such powers. The other Courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which, in exercise of its extraordinary powers under Article 142 of the Constitution, can pass orders to do complete justice to the parties.

19. The various decisions referred to above merely indicate that the Supreme Court can in special circumstances pass appropriate orders to do justice to the parties in a given fact situation by invoking its powers under Article 142 of the Constitution, but in normal circumstances the provisions of the statute have to be given effect to.

The law as explained in Smt. Sureshta Devi's case (supra) still holds good, though with certain variations as far as the Supreme Court is concerned and that too in the light of Article 142 of the Constitution.''

11. The interpretation given to Para 18 & 19 of the said Judgment cannot

be expanded to a disproportionate interpretation of Law to lead to a fiction,

because, here it was a Decree by way of a mutual consent under Section 13

(B), which has been sought to be enforced, where the interpretation of Article

142 was considered in altogether a different context, under the conspicuous IA No. 59 / 2024 (Review Petition) in TA No. 79 / 2021 (CA (AT )(INS) No. 851 / 2020) 6 of 9 of social law. Yet again by way of a repetition, it is relevant to remark that

the decision of the Hon'ble Apex Court of 19.10.2023, leaving it open for the

Applicant to file his Review, has made it optional and hence, it will not

constitute as to be a Decree rendered under a Statute and that too, when there

is a rider attached to it, that it has to be decided in accordance with Law. The

Hon'ble Apex Court quite clearly in its expression had observed that the

Applicant can prefer a Review, which is to be decided in accordance with Law

and the Law herein i.e. the Companies Act or the I & B Code, 2016,

themselves are silent and do not prescribe for a Review, under a Statue,

which is a pre-condition under Article 142. Accordingly, the Review

Application as it has been argued by the Applicant-in-person, will not be

maintainable and the implications of the Judgement of Anil Kumar Jain Supra

will not apply.

12. The Applicant-in-person yet again makes a reference to another

Judgment as reported in 1996 Vol. IV SC cases, Page 662 Delhi Development

Authority V. Skipper Construction Company Private Limited, in order to

reiterate his arguments concerning the implications of Article 142. The

Authority which has been relied by the Applicant-in-person is in relation to

the matters pertaining to a right which was claimed by way of decree of

mandatory injunction by the Plaintiff who was claiming himself a grant of

certain rights being a BSF Personnel, under the relevant Service Law.

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13. We should not be confused at this stage that Law governing the field of

service jurisprudence is not to be harmoniously construed along with a

`Special Statute', which has its wider implications and that is why when there

happens to be a specific restriction of there being no provision of Review,

under the Companies Act or I & B Code, the provision of Review, which has

been sought to be attracted as argued in the light of Article 142 and in the light

of Judgments as relied by the Applicant-in-person will not be attracted.

Application of a Judgment which has incidentally dealt with Article 142 in

that particular circumstances cannot be relied upon, in another case in

different circumstances, by simply extracting a particular observation made

by the Judgment of the Hon'ble Apex Court, in view of the Constitution

Bench Judgment, as it has been observed in Para 9 of Padma Sundara Rao

(Dead) & Ors. V. State of T.N. & Ors., as under:

9. ``Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537]. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.''

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14. The above interpretation of a Judgment to be relied on, of the Hon'ble

Apex Court as had to be considered only under the backdrop and the mental

framework and facts under that point of time, when the Hon'ble Apex Court

was dealing with an issue. Extraction of an excerpt of a Judgment is not

postulated under the Law or could be reasonably possible also, mandates that

a judicial precedent has to be read as a whole in the context of facts under

which it was held.

15. Owing to the fact that the implications of Article 142 as it has been

argued by the Applicant-in-person itself confines its applicability, based upon

the procedure prescribed and in accordance with Law, the same cannot be

expanded preposterously to sustain a Review which is otherwise not

statutorily mandated by I & B Code, 2016, which is a `Special Statute', and

given the fact that when the legislature in all its wisdom has not prescribed a

Power of Review, the Review would not be maintainable and accordingly, IA

No. 59 / 2024 in TA No. 79 / 2021 is dismissed.

[Justice Sharad Kumar Sharma] Member (Judicial)

[Jatindranath Swain] Member (Technical) SR / TM

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