- (1.) This Application is submitted on 12th September 2017 and the main Prayer made is reproduced below:- "a Modify its order dated 2ff July 2017 with respect to tagging of Company Petition No. 177 of 2007 with the Instant Petition by deleting the said direction from the Order;"
(2.) In support of this Application, Learned Representative Mr. Abhishekh Mishra has narrated the background of the case and informed that earlier a Petition bearing No.177 of 2007 was submitted before the then CLB. At that time an Application bearing No.398 of 2011 was moved before the Principal Bench of CLB, Delhi for transfer of the said Petition, however, the said CA 398 of 2011 was dismissed by CLB Delhi vide Order dated 17th October 2011, relevant portion extracted below:- "10. In of the fact that the order dated 09/05/2011 had attained fmality subject to the modifications contained in the minutes of the order dated 22/07/2011, the Petition cannot be allowed to raise the issue of diversion of corporate opportunity from the Respondents No.l company to other companies by way of an amendment. Similarly the prayer for transfer and consolidation of CP No. 46/2011 filed before Mumbai Bench of CL B with CP No.117 and 199 deserves rejection as the Petitioner is to exit from Mundhra Container Freight Station Ltd. and Punjab terminals Pvt.Ltd. and therefore transfer and consolidation of CP No.46/2011 with CP No. 177and 199 would only complicate the issues further. Memorandum Annexure-2 tendered before my learned predecessor in May 2009 before the order dated 25/06/2009, was highlighted during arguments. In my considered opinion this Memorandum must be deemed to have been considered and rejected by order dated 25/06/2009. No such issue was pressed before the High Court of Judicature at Bombay in Company Appeai(L) No.24/2011 or was highlighted in the minutes of the order dated 22/07/2011. Similarly, CA No.457 filed in CP No.177 and CA No.459 filed in CP 199 seeking modification of the order dated 25/06/2009 deserves rejection in limine in view of the order passed by the Hon'ble High Court of Judicature at Bombay in Company Appeal (L) No.24/2011 and the minutes of the order dated 22/07/2011. The delay in valuation of the shares held by the Petitioners to facilitate their exit from R-l at the value of their shares calculated on the balance-sheet of 31/03/2008 is solely attributable to the Petitioners and not the Respondents." 2.1 The Counsel of the Applicant has further informed that at that point of time the Petitioner wanted to circumvent Consent Orders dated 25th June 2009 and 22nd July 2011. The relevant portion of the Order dated 25th June, 2009 (CP No. 177/2007) reproduced below:- "1. The petitioners have filed the instant petition under sections 397/398 of the Companies Act, 1956. When the Petition was mentioned on 30.10.2007, the petitioners express their desire to go out of the company on receipt of fair consideration for their shares. In the hearing held on 15.11.2011, the respondents also agreed to purchase the shares of the petitioners on a valuation as provided in the Articles. Certain proposals were exchanged between the parties without concrete result. In the meanwhile, certain interim orders were also passed. In the hearing held on 20.4.2009, the parties had agreed that the petitioners would go out of the company on fair valuation of their shares as a one-third shareholders, both in respect of this company as well as M/s. Punjab Terminal Private Limited. The consideration so arrived would be subject to the deduction of the amount of issue-price on the entitlement of the petitioners in the right issue. The valuation is to be based on the balance sheets as on tin 31.3.2008. Since the parties could not agree on the name of a valuer, I had indicated during the hearing on 21.5.2009 that I myself would appoint a valuer. 2. I accordingly appoint M/s. Chartuvedi & Shah, Chartered Accountants (Mobile No.09322222241) to determine the fair value of the shares of both M/s. Mundra Container Freight Station Pvt. Ltd. and also of M/s. Punjab Terminal Private Limited. The valuation would be based on the balance sheets as on 31.3.2008. The entitlement of the petitioners would be as a one-third shareholder in both the companies. The respondents will negotiate the remuneration payable to the valuers and pay the same. Both the sides will be at liberty to make both oral and written submissions. Every document referred to or relied on by any of the parties before the Valuer, then copies of the same should be furnished to the other side. Similarly, copies of written submissions should also be exchanged. The Valuer will take into consideration the submissions made by the parties. The Valuer wilt also circulate draft valuation reports to the parties and in preparing the final valuation report the Valuer will take into consideration the submissions of the parties in relation to the draft valuation reports. The final valuation report should be submitted latest by 30th September 2009." 2.2 It is informed by the Counsel of the Applicant that the said Order of 17th October 2011 of Principal Bench, CLB, New Delhi was challenged before the Hon'ble High Court and by order of 11th April, 2017 the Hon'ble High Court has made an observation vide para 212 as under :- "212. Insofar as Company Application No.398 of 2011 inter-alia praying for transfer of company petition (46 of 2011) which was filed by the appellant before the Company Law Board, Mumbai is concerned, the said Company Petition No.46 of 2011 was tiled by the appellant against Mundhra Container Freight Station Private Limited of various reliefs before the Company Law Board, Mumbai. The appellant had also impleaded the respondent nos. 1 and 6 herein the said company petition as respondents. The names of the respondent nos. 1 and 6 are subsequently deleted by the appellant from the arena of said Company Petition No. 46 of 2011 pursuant to an order passed by the Company Law Board. A perusal of the record indicates that the reliefs and the nature of the allegations made by the appellant against the said company which is a different company who is respondent to the said petition are different. In my view Mr.Narichania, learned senior counsel for the respondent nos. 1 to 6 is right in Ns submission that the said application belatedly made by the appellant for transfer of that petition which was pending before the Company Law Board, Mumbai to the Company Law Board Delhi wrth a view to delay the outcome of the company petitions filed before the Company Law Board, Delhi. The Company Law Board in my view thus rightly rejected the company application seeking transfer of the Company Petition No. 46 of 2011 pending before Mumbai Bench of the Company Law Board and to consolidate the same Company Petition Nos. 177 of 2007 and 199 of 2007 on the ground that the appellant had to exit from the respondent nos. 1 and 6 and therefore transfer and consideration the said Company Petition No. 46 of 2011 with Company Petition Nos. 177 of 2007 and 199 of 2007 would only complicate the issues further. In my view there is thus no merits in these appeals impugning the said common order dated l/h October, 2011 insofar as rejection of the Company Application No.398 of 2011 is concerned." 2.3 The matter was carried further before the Hon'ble Supreme Court by filing SLP against the Order of the Bombay High Court dated 11th April 2017. The SLP bearing No.17834-17836/2017 (arising out of impugned final Judgment and Order dated 11.04.2017 in CA No.18/2012 and Others passed by the High Court of Bombay) was dismissed vide Order dated 24.07.2017 by the Hon'ble Supreme Court. 2.4 Learned Counsel has informed that the Company Petition No.177 and 199 of 2007 have recorded the Consent of the Petitioner to exit the Company upon fair valuation of the Shares to be valued by the Valuer appointed by the said Order dated 22nd July 2011. Since a view has already been taken in this regard and the attempts made by the Petitioner have failed, therefore, in respect of Company Petition No.177 and 199 of 2007, the only thing left for adjudication is in respect of the objection of the Petitioner pertaining to the Valuation Report submitted by the Valuer. According to the arguments in view of the Orders already pronounced, the present Petition of the Petitioner is to be decided independently without to be tagged with the old Petitions. 2.5 Finally, it is prayed that the Order 26th July 2017 passed by this Bench of NCLT is to be recalled because such Prayer had already been declined earlier by the Company Law Board and affirmed by the Bombay High Court and also by the Supreme Court. Learned Counsel has pleaded that Rule 11 of Companies Act has inherent powers to recall its earlier Order to meet the ends of justice. Learned Counsel has also pleaded that vide Notification of 21- July 2016 Rule 154 for rectification of Order has been introduced according to which any error arising from any accidental slip or omission, may at any time be corrected by the Tribunal on its own motion or on Application of any party by way of rectification. He has also referred Rule 155 through which the Tribunal is granted general power to amend an error in any proceedings.
(3.) On the other hand, from the side of the Respondent of this Application (Petitioner of the Petition) has placed strong reliance on the observation of this Bench recorded on 26th July 2017 as per the Order Sheet wherein directed the Registry to locate the records of CP 177 of 2007 and tag that Petition with the present Petition. It is pleaded that the Respondent had diverted the business of the Company to other Companies. As a result, the valuation of the Petition under consideration got diluted. The Respondent (of the Petition) had deliberately diverted the corporate opportunity from Rl Company to other Companies. Therefore, to proceed with any matter pertaining to the Valuation should first be decided by taking decision on diversion of business as raised in the impugned Petition, CP No.177 of 2007 and CP No.199 of 2007. 3.1 It is further pleaded that if the Applicant had any grievance against the said Nottngs on the Order Sheet of 26.07.2017, then the right recourse of the Applicant was to file an Appeal against the said Notings. Instead of filing Appeal, through this Application, the Petitioner is trying to get the Order of 26th July 2017 be recalled which is not permissible under the Act. Placing reliance on the Judgment of Hon'ble NCLAT in the case of APC Credit Trading Private Limited Vs. RoC, NCT of Delhi & Haryana ( Company Appeal (AT) No. 206 of 2017 & Company Appeal (AT) No. od 221 of 2017 ) dated 19/7/2017, it is pleaded that the respected NCLAT had held that the Tribunal had no general power to review its own Order specially when against the Order of the NCLT an appeal is prescribed under the Act.;