Inder Chand Pincha vs Borgang Tea Co. (P) Ltd. & Ors

Inder Chand Pincha ...Appellant

Vs.

Borgang Tea Co. (P) Ltd. & Ors. ...Respondents

Company Appeal (AT) No. 155 of 2018

IN THE MATTER OF:

Inder Chand Pincha ...Appellant

Vs.

Kettela Tea Co. (P) Ltd. & Ors. ...Respondents

Present: For Appellant: - Mr. Akhilesh Kr. Shrivastava, Advocate and Ms. Suhita Mukhopadhyay, PCS.

ORDER

11.05.2018- This appeal has been preferred by the Appellant against

order dated 6th March, 2018, whereby and whereunder the National

Company Law Tribunal (hereinafter referred to as "Tribunal"), Guwahati

Bench, Guwahati, while making necessary rectification of some of the

typographical and clerical errors refused to amend or review the order

dated 31st May, 2017.

2. The Appellant preferred the Company Petition No. 160/2013

before the erstwhile Company Law Board, which on constitution of the

Tribunal, transferred to the Tribunal and registered as TP No. -2-

11/397/398/GB/2016. The grievance related to 'oppression and

mismanagement' so the petition was filed under Sections 397/398 of

the Companies Act, 1956.

3. The Appellant who was the Petitioner before the Tribunal, being

not happy with the decision of the Tribunal, after a long delay filed a

miscellaneous application under Section 420(2) of the Companies Act,

2013 for rectification of errors apparent on the face of the record. The

'typographical errors' and 'clerical errors' were corrected by the

Tribunal, but prayer for amendment of the judgment and thereby review

of the judgment was rejected.

4. Learned counsel appearing on behalf of the Appellant submits

that the factual errors have not been taken into consideration and nor

considered. The judgment of this Appellate Tribunal were also not taken

into consideration.

5. According to counsel for the Appellant, the observations made in

paragraphs 65-71 of the judgment dated 31st May, 2017 led to the

decision which was recorded in paragraph 72 of the judgment. Such

decision in paragraph 72 and observation in paragraphs 65-71 were not

founded on the basis of averments made in paragraphs 49-55 of the

petition. Similar plea of error was taken by the Appellant which were not

accepted by the Tribunal.

-3-

6. Similar argument has been made by the learned counsel for the

Appellant. Though the Appellant has challenged the order dated 31st

May, 2017 apart from another order, proper court fee has not been filed,

nor an application for condonation of delay has been filed. The appeal

against the order dated 31st May, 2017 has been filed after 11 months.

Under sub-section (2) of Section 421, this Appellate Tribunal has

jurisdiction to condone the delay but not beyond a period of forty-five

days. In view of the aforesaid provision, the prayer as made against the

original order dated 31st May, 2017 cannot be granted, being barred by

limitation. Such prayer is rejected.

7. Section 420 of the Companies Act, 2013 deals with 'order of the

Tribunal'. As per Section 420(2) of the Companies Act, 2013, the

Tribunal may, at any time within two years from the date of the order,

with a view to rectify any mistake apparent from the record, amend any

order passed by it, which reads as follows:

"420(2). The Tribunal may, at any time within

two years from the date of the order, with a

view to rectifying any mistake apparent from

the record, amend any order passed by it, and

shall make such amendment, if the mistake is

brought to its notice by the parties: -4-

Provided that no such amendment shall

be made in respect of any order against which

an appeal has been preferred under this Act."

8. From the aforesaid provision, we find that on the basis of mistake

apparent on the face of the record is always open to the Tribunal to

amend the original order passed by it, which will not amount to review

of the order and the mistake should be such apparent on the face of the

record. The opinion formed and observations made by the Tribunal

cannot be treated as an error apparent on the face of record. Such

observations having made by the Tribunal on appreciation of evidence

and after hearing the parties, being not an error on the face of record,

the question of rectification of observation does not arise.

9. We find no merit in these appeals. They are accordingly dismissed.

No cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk