United Church of Northern India Trust Association vs Mr. Prem Rehmat Masih

Prabhat Kumar, Member (Technical)

This Misc. Company Application 43/2017 is filed by United Church of Northern India Trust Association in Company Petition 514/(17)CLB/ WR/96 (Registered with this Tribunal as 14 of 1996) seeking recall of the order dated 16.01.1997 passed by the learned Company Law Board allowing amendment of Memorandum of Association of the Applicant Company pursuant to the Application u/s 17 of the Companies Act, 1956 which was earlier filed by Mr. Prem Masih representing as Managing Director of the Applicant Company.

1.1. The Applicant "UNITED CHURCH OF NORTHERN INDIA TRUST ASSOCIATION" (hereinafter be referred as UCNITA)’s Memorandum and Article of Association of the Applicant Company were altered pursuant ot order dated 16.01.1997 on petition filed by One Mr. Prem Masih claiming himself to be Managing Director of UCNITA. It is the case of the Applicant that Mr. Prem Masih has never been connected with or related UCNITA at any point of to time. Therefore with a view to grab the properties of United Church of Northern India Trust Association which is controlled and managed through United Church of Northern India, has forged the documents of UCNITA and filed the aforesaid application before the erstwhile Learned Company Law Board seeking alteration to substitute the name of UCNI by inserting the words "CNI". The said company petition, was allowed and amendment was permitted vide order dated 16.01.1997. The said order was challenged by the Managing Trustees of UCNITA before the Bombay High Court. However, those appeals were dismissed.

1.2. The Applicant has preferred the present application in view of the two judgments, one by Hon'ble Supreme Court and the other Ld. Civil Court Ludhiana. Since the Hon'ble Supreme Court had found the unification/merger illegal, there was no unification of Six Churches namely: FDCB, The Church of India, Pakistan, Burma and Cylon, the Methodist Church (British and Australian conference), the Methodist Church of Southern India and the United Church of Northern India. The said Judgement was passed in Civil Appeal No.8800-8801/2013 on 30.09.2013. Hence, this application for recall. It is important to mention that UCNITA is also registered under the BPT Act 1950 having Registration Number D-97.

Mr. Prem Masih, who is respondent in this Application, has filed the reply stating that the reliefs sought by the Applicant in the present Application is for recalling the Order dated 16th January 1997, passed by the erstwhile Ld. Company Law Board, by which, amendment to the Memorandum and Article of Association of United Church of Northern India Trust Association" (UCNITA) was allowed. The amendments were confirmed by the Ld. Company law Board, affirmed by the Hon'ble Bombay High Court in Company Appeal bearing No. 3/1997 vide order dated 03.07.1998 and further affirmed by the Division Bench of the Hon'ble Bombay High Court in Appeal No. 1211/1998 vide order dated 19.01.1999, and further upheld by the Supreme Court of India in Special Leave Petition No. 12196/1999 in favour of the Defendants dated 1.11.1999 hence attained finality in law and therefore the application is not maintainable, as barred by the principles of Res-Judicata. It is further submitted that the alleged authorized officer has no authority to represent the said company in any manner.

We note that one intervention Application vide diary no. 6740/2017 was filed on 21.04.2017, however, we could not find this Application in pending case records before this Bench. It seems that this application was never numbered. Nonetheless, Application was filed by one Mr. Yohan G. Immanuel claiming himself the president of UCNITA. We notice that this Application was filed by Mr. Ravi Chhatriya on 03.02.2017 claiming himself to be president of the Association, we have come across another application under order 22 Rule 10 r/w Section 151 of CPC and Section 424 of Companies Act, 2013 filed by Mr. R.R. Dutta, claiming to have succeeded Mr. Ravi Chhatriya.

Heard learned counsel and perused the materials on record.

The Respondents have challenged the authority of the Applicant to maintain this Petition. However, the successive president i.e. Mr. R.R.Dutta, filed an application seeking to represent the Applicant Company after succeeding Mr. Ravi Chhatriya, the then president who has filed this Application. Though we notice that Mr. Yohan G. Immanuel had also challenged the authority of Mr. Ravi Chhatriya to file this Application, however, this Application was never listed before this Tribunal. Accordingly, this Bench cannot take note of this Application and the allegations made therein.

The Respondent in his reply has contended that the order dated 16.01.1997 has attained finality after the appeal against the said order having been dismissed by the Apex Court. The question before us is, whether an order which was challenged in an Appeal can be recalled by this Bench even if such order was obtained by the fraud as alleged in the Application. On perusal of the order dated 19.01.1999 passed by the Division Bench of the Hon’ble High Court of Bombay, we note that the Hon’ble High Court at Para 9 stated that “we are of the view that the impugned order passed by the learned single judge holding that the Appellants who claim to represent the UCNI had no locus whatsoever since the UCNI lost its independent identity and was merged with the Church of North India pursuant to the Resolution dated 6th and 7th March, 1970 which was implemented with effect from 29th November 1970. In that view of the matter it appears to us that the amendment of the clause 3(a) of the Memorandum of Association of the 1st Respondent Company under Resolution No. 119 passed in the 57th Annual General Meeting of the 1st Respondent Company held on 27th November, 1995 at Bombay was consistent with the merger of the UCNI with the CNI. No Objection could therefore be taken to delete the words UCNI in clause 3 (a) substituting the words CNI as also to the consequential amendment reflected in Resolution No.119 passed on 27th November 1995. We are also of the view that no objection could be taken to the validity of the order dated 16th January 1997 passed by Company Law Board which granting its confirmation in accordance with the provisions of Section 17 of the Companies Act, 1956.” Further, the Hon’ble Supreme Court dismissed the SLP filed against the order passed by the Division Bench of the Hon’ble High Court.

We note that the Hon’ble Supreme Court vide its order dated 30.09.2013 in Civil Appeal No.8800-8801/2013 dealing with the issue of merger held that “After analysing the facts and the law in the matter, we have noticed that it is the duty of the society to take steps in accordance with Section 13 of the, SR Act for its dissolution. We have further noted that unless the properties vested in the Trust are divested in accordance with the provisions of the SR Act and in accordance with the BPTA, merely by filing the Change Report/s. CNI cannot claim a merger of churches and thereby claim that the properties vested in the Trust would vest in them. In our opinion, it would only be evident from the steps taken that the passing of resolutions is nothing but an indication to show the intention to merge and nothing else. In fact, the City Civil Court has correctly held, in our opinion, which has been affirmed by the High Court, that there was no dissolution of the society and further merger was not carried out in accordance with the provisions of law. In these circumstances, we hold that the society and the Trust being creatures of statute, have to resort to the modes provided by the statute for its amalgamation and the so-called merger cannot be treated or can give effect to the dissolution of the Trust. In the matrix of the facts, we hold that without taking any steps in accordance with the provisions of law, the effect of the resolutions or deliberations is not acceptable in the domain of law. The question of estoppel also cannot stand in the way as the High Court has correctly pointed out that the freedom guaranteed under the Constitution with regard to the faith and religion, cannot take away the right in changing the faith and religion after giving a fresh look and thinking at any time and thereby cannot be bound by any rules of estoppel. Therefore, the resolution only resolved to accept the recommendation of joint unification but does not refer to dissolution.”

We find from the decision that the decision dated 30.09.2013 was rendered on the legality of the merger scheme and held such merger scheme to be illegal. In the light of this decision, we look at the decision of Division Bench of Hon’ble High Court in Appeal against the order dated 16.01.1997 and find that the Hon’ble High Court upheld the amendment to Memorandum of Association on the ground that the amendment of the clause 3(a) of the Memorandum of Association of the 1st Respondent Company under Resolution No. 119 passed in the 57th Annual General Meeting of the 1st Respondent Company held on 27th November, 1995 at Bombay was consistent with the merger of the UCNI with the CNI. Accordingly, we are of the considered view that the Hon’ble Supreme Court holding the merger scheme to be illegal, the order of the Hon’ble High Court upholding the order dated 16.01.1997 cannot be made a ground to contest the present application because the fulcrum of that order is not in existence after pronouncement of order dated 30.09.2013 by Hon’ble Supreme Court.

The Tribunal’s power to recall its order was dealt with by Hon’ble Supreme Court in the case of Greater Noida Industrial Development Authority v. Prabhjit Singh Soni and Anr Civil Appeal Nos. 7590-7591 of 2023. The Hon’ble Supreme Court held that

“50. In light of the discussion above, what emerges is, a Court or a Tribunal, in absence of any provision to the contrary, has inherent power to recall an order to secure the ends of jus ce and/or to prevent abuse of the process of the Court. Neither the IBC nor the Regula ons framed thereunder, in any way, prohibit, exercise of such inherent power. Rather, Sec on 60(5)(c) of the IBC, which opens with a non-obstante clause, empowers the NCLT (the Adjudica ng Authority) to entertain or dispose of any ques on of priori es or any ques on of law or facts, arising out of or in rela on to the insolvency resolu on or liquida on proceedings of the corporate debtor or corporate person under the IBC. Further, Rule 11 of the NCLT Rules, 2016 preserves the inherent power of the Tribunal. Therefore, even in absence of a specific provision empowering the Tribunal to recall its order, the Tribunal has power to recall its order. However, such power is to be exercised sparingly, and not as a tool to re-hear the ma er. Ordinarily, an applica on for recall of an order is maintainable on limited grounds, inter alia, where (a) the order is without jurisdic on; (b) the party aggrieved with the order is not served with no ce of the proceedings in which the order under recall has been passed; and (c) the order has been obtained by misrepresentation of facts or by playing fraud upon the Court /Tribunal resulting in gross failure of justice.”

In the present case, we do not find that the order dated 16.01.1997 was either passed without jurisdiction or without knowledge of the Applicant Company. Further, it cannot be said that the order dated 16.01.1997 was obtained by miss-representation of facts or by playing fraud. It is merely a case of change in the facts consequent upon the decision rendered by Hon’ble Supreme Court on 30.09.2013. It is not in dispute that prior to this date the order dated 16.01.1997 was based on the facts and the merger scheme came to be held illegal on the ground that all the churches are being merged without dissolving the relevant societies which is impermissible under the law. We are of the considered view that the applicant company is not precluded from amending its memorandum if it wish so to give effect to altered circumstances arising from order dated 30.09.2013.

In view of the forgoing, we do find that it is a fit case for recalling the order dated 16.01.1997 as it does not fall within the four corners of the decision rendered in Greater Noida Industrial Development Authority v. Prabhjit Singh Soni (Supra). Accordingly, the MA 43 of 2017 is dismissed and disposed of.