M.K. Shrawat, Member - (1.) The Main Petition (C.P. No. 18/241/NCLT/MB/MAH/2016) was filed on 23rd August, 2016. Thereafter, the Petitioner Company/the Applicant filed the Miscellaneous Application (M.A. No. 90 of 2016), now under consideration, on 21st October, 2016. The basic reason for moving this Application as narrated therein for ready reference is reproduced below: "7. However, upon a perusal of the said Affidavit in Reply, it is apparent that the Respondents have adduced additional facts and annexed additional documents to their Reply whish state that the Articles of Association of Respondent No. 1 were amended on December 15, 2012, and vide these amendments, the contents of the following Articles were deleted - Article 9 (Clause 4), Article 14, Article 15, Article 16, Article 17, and Article 26 (Clauses 1, 2, 3 and 4). These Articles conferred certain privileges upon the Petitioner, Mr. Ashit M. Patel ("AMP") and other members of the AMP Group and AMP Group Companies, as has been set out more particularly in paragraph 6C of the Petition, and it is alleged by the Respondents that these Articles have been deleted by a Special Resolution passed at an Extra-ordinary General Meeting of Respondent No. 1 which took place on December 15, 2012. 8. It is submitted that since the respondents have pleaded the aforesaid additional facts and adduced the additional documents (Exhibit B and Exhibit D to the Reply), and since the Respondents have made several averments in furtherance of these alleged amendments to the Articles of Association dated December 15, 2012 to supplement their case before this Hon'ble Tribunal, it has become necessary and incumbent upon the Applicant to amend the present Petition."
(2.) From the side of the Applicant, Ld. Senior Advocate Mr. Vikram S. Namkani has pleaded that it was wrong on the part of the Respondent Company and other Respondents to amend the Articles of Association vide a Resolution dated 30th March, 2008 and 15th December, 2012 in the absence of Mr. Ashik M. Patel and Mrs. Meena Ashik Patel. He has explained that the condition for the amendment in the Articles of Association was prescribed in Article 9 of unamended Articles of Association of the Respondent No. 1 Company. Earlier, this development was not in the knowledge of the Petitioner Company. In the correspondence exchanged with the Petitioner, it was never informed that the amendment took place in the Articles of Association. According to him the information of the said amendment was uploaded on the official portal of RoC on 18th March, 2013. Since the said information to the Petitioner Company was communicated only when the reply was submitted from the side of Respondents, then only it was decided to seek permission for the amendment in the Main Petition. 2.1 Ld. Representative has also briefly narrated the background in support of the prayer of amendment that the Applicant Company (Original Petitioner) has never authorised Mr. Shailesh M. Patel as the representative; hence the Respondents are raising wrong allegation that the said Mr. Shailesh M. Patel was an authorised representative of the Petitioner Company. According to Ld. Authorised Representative, Mr. Shailesh M. Patel was known to JRS Group prior to his association with AMP Group or the Applicant Company. There is evidence to establish this fact. He has concluded that the amendment is not only important but necessary to be allowed to carry out on account of the reason that the requisite amendment has a direct factual as well as legal bearing on the Main Petition. On merits the case can only be fairly decided if the permission is granted to carry out the amendment. In support, following Case Laws have been cited: "1. Pankaja And Another Versus Yellappa (Dead) by LRS. And Others., 2004 6 SCC 415 (Before N. Santosh Hegde and S.B. Sinha, JJ.) Civil Appeals Nos. 4983-84 of 2004, decided on August 5, 2004. 2. Raghu Thilak D. John Versus S. Rayappan and Others., 2001 2 SCC 472 Supreme Court Cases (Before K.T. Thomas and R.P. Sethi, JJ.) Civil Appeal No. 787 of 2001, decided on January 23, 2001. 3. Rajaram Naik vs. State of Goa and Others. Amendments of Pleadings : Permissibility (CV. Bhadang, J.) W.P. No. 259 of 2015 decided on 31.8.2015. (Panaji-Goa).
(3.) From the side of the Respondents, Ld. Senior Advocate Mr. Dinyar Madan appeared and opposed the Application on two grounds, No. 1, that the Respondents have challenged the maintainability of the Petition and that the amendment as sought is barred by limitation. According to him the Petitioner Company was all along aware of the amendment in the AoA. Notice of the EOGM held on 30th March, 2008 and 15th December, 2012 were duly given to the Petitioner Company vide Notices of EOGM dated 24th March, 2008 and 14th November, 2012 respectively. On the occasion when the EOGM was held, the said amendments took place in the AoA of the Respondent No. 1 Company. He has informed that sufficient evidences in support of the said statement are either on record or available with the Respondents. He has reiterated that the Authorised Representative of the Petitioner Company viz. Mr. Shailesh Patel was present and attended the EOGM held on 30th March, 2008. A Resolution was passed in the EOGM and thereupon amended the AoA of Respondent No. 1 Company as well as communicated to the concerned authorities as mandated by law. According to his vehement contentions, the attempt of amendment is nothing but an afterthought to misguide the Hon'ble Tribunal so that the Petitioner can continue with the injunction obtained vide an Order dated 29th August, 2016 passed by NCLT, Mumbai Bench. 3.1 The second strong objection of the Respondent to the Application is that the alteration in AoA of Respondent No. 1 Company took place way back in the years 2008 and 2012. The amendment as demanded by the Petitioner in the year 2016 is hopelessly barred by the Law of Limitation. No sufficient cause has been demonstrated by the Petitioner to substantiate the reason of amendment that too belatedly. It was incumbent upon the Petitioner to satisfy the Hon'ble Tribunal as to why the Petitioner had not raised the issue when the Original Petition was filed and why the Petitioner has not challenged the said Resolution over all these years. Such types of Interim Applications are frivolously filed to delay the hearing. Once the pleadings are complete, the right to file Interim Application has already foreclosed. On the question of limitation, vehement reliance has been placed on the following Case Laws/precedents and notifications.:- "1. M/s. ABRO Technologies Pvt. Ltd. Vs. M/s. Delhi Warehousing Pvt. Ltd. & Ors. C.P. No. 41(ND)/2016 CA No. _. National Company Law Tribunal, Principal Bench, New Delhi. Chief Justice M.M. Kumar, Hon'ble President, Sh. R. Vardharajan, Hon'ble Member (J). Decided on 22.12.2016. 2. M/s. Praveen Shankaralayam Vs. M/s. Elan Professional Appliances Pvt. Ltd. & Ors. C.P. No. 04/ND/2016 National Company Law Tribunal, Principal Bench, New Delhi. Chief Justice M.M. Kumar, Hon'ble President, Sh. S.K. Mohapatra, Hon'ble Member (T). Decided on 20.10.2016. 3. M/s. Esquire Electronics Vs. M/s. Netherlands India Communications Enterprises Ltd. C.P. No. 108/ND/2016 National Company Law Tribunal, Principal Bench, New Delhi. Chief Justice M.M. Kumar, Hon'ble President, Smt. Ina Malhotra, Hon'ble Member (J). Decided on 06.10.2016.";