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Judgment
ORDER
Ashok Bhushan, J.
This Application has been filed by the Appellant in Company Appeal (AT) No.242 of 2024 which Appeal has been rejected by order dated 21.10.2024 passed in IA No.5502 of 2024. This Application has been filed by the Appellant on 23.10.2024 making following prayers:-
“a)Charge the Prospective accused Mr Rajiv Hora under Sect-448 and 449 of CA-2013, for false statements on Affidavit dated 12.09.2024 filed in his reply to I.A-5502/2024.
b)Direct Ld NCLT to pronounce order in Perjury Complaint CA- 123/2023 that was reserved on 22.02.2024.
c)Take action under Sect-425 of CA-2013 against Mr R Hora for contempt/breach of this Hon'ble NCLAT order dated 12.08.2024 for Respondents to file reply within 2 weeks.
d)Impose Rs 5 Lakh costs on R-1 to be paid to appellant for R-1's repeated perjury before this Hon'ble NCLAT and NCLT.
AND FOR THIS ACT OF KINDNESS, THE APPLICANT SHALL, AS IS DUTY BOUND, EVER PRAY.”
Brief facts of the case giving rise to this application are:-
The Applicant had filed a Company Appeal (AT) No.242 of 2024 under Section 421 of the Companies Act, 2013 challenging the order dated 15.12.2023 passed in CA No.440/PB/2022 in Company Petition No.71/(ND)/2020. CA No.440/PB/2022 filed by the Applicant/ Appellant was dismissed by the NCLT on 15.12.2023 against which Company Appeal (AT) No.242 of 2024 was filed. There being delay in filing the Appeal, an application IA No.5502 of 2024 was filed by the Applicant/ Appellant for condonation of delay. IA No.5502 of 2024 came to be decided by order dated 21.10.2024. This Tribunal held that this Tribunal is not satisfied that the Appellant was prevented by sufficient cause from filing the Appeal within the extended period of 45 days. Delay Condonation Application was dismissed. In consequence of dismissal of Delay Condonation Application, Memo of Appeal was also rejected. In Paragraph 32 of the order dated 21.10.2024, this Tribunal held:-
“32.For the above reasons and conclusions, we are not satisfied that Appellant was prevented by sufficient cause from filing the Appeal within the extended period of 45 days. The Delay Condonation Application deserves to be dismissed and is hereby dismissed. In consequence of dismissal of Delay Condonation Application, Memo of Appeal is also rejected.”
After dismissal of Delay Condonation Application IA No.5502 of 2024 and rejection of Memo of Appeal on 21.10.2024, this Application has been filed on 23.10.2024 praying for the reliefs as noted above.
Counsel appearing for the Respondent has raised preliminary objections to the maintainability of the application. It is submitted by the Counsel for the Respondent that Appeal having already been dismissed as barred by time and not have been entertained by this Tribunal, the present application filed in the Appeal is not maintainable.
We heard the Appellant appeared in person as well as Counsel appearing for Respondent No.1.
Appellant appearing in person contends that although Appellant has prepared the application on 19.10.2024 but could file it only on 23.10.2024 after judgment was delivered by this Tribunal on 21.10.2024. It is submitted that the Respondents have committed perjury. It is submitted that the prayers as made in the application need to be allowed. False affidavit has been made on oath which Affidavit was filed in judicial proceedings. Various facts and grounds have been pleaded in the application by the Appellant for grant of relief.
Counsel for the Respondents having raised the objections on very maintainability of the application, we proceed to first examine the question as to whether present application is maintainable.
Company Appeal (AT) No.242 of 2024 which was filed by the Appellant was rejected on account of rejection of Delay Condonation Application filed in the Appeal for Condonation of Delay and result is that Appeal was not maintainable as barred by time. When Appeal which was filed by the Appellant under Section 421 of the Companies Act, 2013 has been dismissed as barred by time on account of rejection of Delay Condonation Application. The present application IA No.7617 of 2024 prays for issuing certain directions and grant of reliefs on the pleadings as made in the application. The Appellant’s appeal having been dismissed as barred by time, we fail to see that how any application after dismissal of the appeal as barred by time can be entertained by this Tribunal. Appellant to support his submissions has relied on a judgment of the Hon’ble Supreme Court in “Bhagwan Singh vs. State of U.P. & Ors.- Criminal Appeal Nos…..of 2024 (@SLP(CRL.)Nos………of 2024 @ Diary No.18885 of 2024”. Reliance has been placed in paragraphs 29 and 30 of the judgment which are as follows:-
“29.To create or to assist creating false documents and to use them as genuine knowing them to be false in the Court proceedings, to falsely implicate somebody in the false proceedings filed in the name of the person who had no knowledge whatsoever about the same are the acts attributable to the offences punishable under the Bhartiya Nyaya Sanhita, 2023. They are also acts of frauds committed not only on the person sought to be falsely implicated and on the person in whose name such false proceedings are filed without his knowledge and consent, but is a fraud committed on the Courts. No Court can allow itself to be used as an instrument of fraud and no Court can allow its eyes to be closed to the fact that it is being used as an instrument of fraud. As held by this Court in V. Chandrasekaran & Anr. vs. Administrative Officer & Ors.
"The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court."
30.The matter assumes serious concern when the Advocates who are the officers of the Court are involved and when they actively participate in the ill-motivated litigations of the unscrupulous litigants, and assist them in misusing and abusing the process of law to achieve their ulterior purposes.”
There can be no dispute to the proposition laid down by the Hon’ble Supreme Court in the above case. The aforesaid appeal before the Hon’ble Supreme Court was filed challenging the judgment and order of the High Court in application under Section 482 CrPC where the High Court has allowed the application and quashed the entire proceedings in respect of the Supplementary Chargesheet arising out of the case under Sections 363, 367, 376 of the IPC. The Hon’ble Supreme Court after entering into the merits of the case directed the matter to be handed over for the investigation to the CBI. The order and direction passed by the Hon’ble Supreme Court in the above case was on the facts of the said case. The question regarding maintainability of the application in an appeal which has been dismissed as barred by time was not the subject matter of the issue, hence, the said judgment which was pronounced on the merits of the case does not come to the aid of the Appellant in any manner in the present application.
Another judgment which has been relied by the Appellant is judgment of the Hon’ble Supreme Court in “2022 LiveLaw (SC) 576- Suo Motu Contempt Petition (Civil) No.3 of 2021”. The above was a case where Hon’ble Supreme Court initiated suo-motu contempt case against the contemnors. The above direction also was on its own facts and court in the said judgment has noted the earlier order dated 07.10.2021 holding the contemnor guilty of contempt. Notice was given to contemnors but no response was made. Thereafter, the notice was issued and then order was passed. The contemnor had not appeared and the court for giving an opportunity to contemnor to appear so that punishment is awarded has issued necessary directions.
Appellant also referred to an order passed by Delhi High Court in W.P.(CRL) No.2341 of 2021- “Col. Ashish Khanna, SM Retd. Vs. State of NCT Delhi and Ors.” which application was filed for registration of FIR by the CBI in which High Court has directed the matter to fix on 20.05.2024. The order of the High Court relied by Appellant dated 03.12.2024 does not in any manner help the Appellant on the issue which have arisen for consideration in the present application.
Now we come to the specific prayers made in the application (a) to (d) as extracted in paragraph 1 of the order. We first take the prayer (c) which is prayer for taking action under Section 425 of the Companies Act, 2013 for breach of order dated 12.08.2024. The order dated 12.08.2024 passed in Company Appeal (AT) No.242 of 2024 and I.A. No.5502 of 2024 is as follows:-
“12.08.2024: I.A. No. 5502 of 2024 This is an application filed by the Appellant praying for condonation of delay in filing the appeal. The order impugned was passed on 15.12.2023. This appeal has been filed on 01.05.2024. Issue notice in the delay condonation application. Let Reply to the delay condonation be filed within two weeks. Rejoinder, if any, be filed by two weeks thereafter.
Counsel for the Appellant submits that he has received the copy on 22.02.2024.
List the delay condonation application for consideration on ‘13.09.2024’.”
The allegation of the Appellant is that the reply was filed by Respondent on 12.09.2024 which was served late night. The contention is that the reply was not filed within two weeks as directed by the order dated 12.08.2024. The application was heard on 24.09.2024. The ground that the reply to the Delay Condonation Application IA No.5502 of 2024 was filed beyond the time allowed by the Court on 12.08.2024 cannot be basis for initiating any proceeding under Section 425 of the Companies Act, 2013. When the Delay Condonation Application came for consideration on 13.09.2024, Appellant was allowed time to file rejoinder to the reply filed on 05.09.2024 which order (13.09.2024) is as follows:-
“13.09.2024: As prayed, list this appeal on 24.09.2024. Appellant may file a Rejoinder if any, before the date fixed.”
Thus, the time for filing rejoinder was allowed to the Applicant/ Appellant on the reply received from Respondent. We thus do not find any merit in the submission of the Appellant that proceeding for contempt be initiated against the Respondent.
Now we come to the prayer (a). The aforesaid prayers relate to affidavit of reply filed by Respondent dated 12.09.2024 in IA No.5502 of 2024. Reply to the Delay Condonation Application as well as the Delay Condonation Application was heard and has already been decided by judgment of this Tribunal dated 21.10.2024. The pleadings in the reply dated 12.09.2024 which was taken by the Respondent to oppose the Delay Condonation Application 5502 of 2024 cannot be said to be a false statement under oath. We, thus are of the view that the prayer (a) made in the application can also not be considered in this Application. The prayer (c) being unconnected with the IA cannot be considered. In view of the fact that prayers (a), (b) and (c) are not being allowed in this application, the prayer (d) also need to be rejected.
In view of the aforesaid, we are of the view that no relief can be granted to the applicant/appellant in IA No. 7617 of 2024. IA No. 7617 of 2024 is rejected.