Ashok Kriplani vs Konduru Prasanth Raju & Ors.

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.

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.

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’’.

Consequently, the Review Application has been preferred by the Applicant / Appellant, on 25.11.2023, which is under consideration.

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:

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 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.

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.

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 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.

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.

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 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:

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 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.

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.

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:

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.

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.