2020 (9) TMI 801 - AT - Insolvency and Bankruptcy

Review Application Dismissed: Time Limit Acknowledgment Rule

The Review Application in the case was dismissed as the Tribunal held that the application under Section 7 of the Insolvency and Bankruptcy Code was filed ... Review of order - correction of an error ‘apparent on the face of record’ - Section 420(2) of the Companies Act, 2013) r/w Rule 11 of the ‘NCLAT’ Rules, 2016 - HELD THAT:- It is to be pointed out that the power to ‘Review’ is not an ‘inherent power’ and must be showered by Law either expressly or by necessary implication. As a matter of fact, the power to ‘review’ is a creation of statute. Indeed, a ‘Review Jurisdiction’ cannot be pressed into service as an ‘Appellate Jurisdiction’. Moreover, the ‘Power of Review’ is not to be confused with an Appellate power. A ‘review’ cannot be claimed or asked for merely for a fresh hearing or arguments or the correction of an erroneous view taken earlier - It is an axiomatic principle in Law that an error contemplated must be such which is apparent on the face of record and not an error which has to be fished out and searched. The term ‘Review’ judicially and literally means ‘reexamination’ or ‘re-consideration’. Under the guise of ‘Review’ the Tribunal would not rehear the parties both on ‘facts and Law’. If two views are possible on the point involved, the same is not a ground for ‘Review’. It cannot be gainsaid that ‘I&B’ Code, 2016 does not contain any provision for ‘Review’. Also, it does not contain any provision similar to Section 420 of the Companies Act, 2013. In this connection, a mere perusal of the ‘National Company Law Appellate Rule’ 2016 unerringly point out that there is no express Rule for ‘Review’. There can be no two opinion of a prime fact that Rule 11 of ‘NCLAT’ Rules, 2016 is not a substantive Rule which confers any power or jurisdiction on the ‘Tribunal’. A ‘Tribunal’ has no power to perform an act which is forbidden by Law - The term ‘record’ in Section 420 of the Companies Act, 2013 means record to the proceedings of the case. An error must be a ‘patent error’ and not a mere ‘wrong decision’. Where two views are possible and the matter is debatable, the order cannot be rectified by mistake apparent from record. When there is no mistake apparent from the record in the judgement delivered by a Tribunal, then an application for review filed by the concerned Applicant cannot be construed to be one under Section 420(2) of the Companies Act or under Rule 11 of ‘NCLAT’ Rules, 2016. Review application dismissed. Issues Involved:1. Whether the application under Section 7 of the Insolvency and Bankruptcy Code (I&B Code) was filed within the limitation period.2. Whether the Review Application can be entertained under Section 420(2) of the Companies Act, 2013 and Rule 11 of the NCLAT Rules, 2016.3. Whether the Tribunal has the authority to review its own decisions.Issue-wise Detailed Analysis:1. Limitation Period for Section 7 Application:The Review Applicant contended that the application under Section 7 of the I&B Code, filed on 06.09.2018, was beyond the limitation period. The original loan default date was November 2012, and the three-year limitation period ended on 31.10.2015. The Appellate Tribunal had previously held that the application was within the limitation period based on an acknowledgment dated 9.6.2016, when the loan assignment agreement was accepted. The Review Applicant argued that this acknowledgment could not extend the limitation period for a time-barred loan. The Tribunal had relied on the acknowledgment and subsequent payments, which the Review Applicant claimed were beyond the limitation period and could not save the time-barred loan.2. Review Application under Section 420(2) and Rule 11:The Review Applicant argued that the Tribunal had the authority to rectify any mistake apparent from the record under Section 420(2) of the Companies Act, 2013. However, the Tribunal clarified that the power to review is not inherent and must be expressly provided by law. The Tribunal emphasized that the power to review should not be confused with appellate power, and a review cannot be sought merely for a fresh hearing or correction of an erroneous view taken earlier. The Tribunal cited various Supreme Court decisions to support this position, stating that an error must be self-evident and not require examination or argument to establish.3. Authority to Review Decisions:The Tribunal held that there is no express provision for review under the NCLAT Rules, 2016, and the Review Applicant could not seek the aid of Rule 11, which speaks of inherent powers. The Tribunal also noted that the I&B Code, 2016, does not contain any provision for review, unlike the Companies Act, 2013. The Tribunal reiterated that it has no jurisdiction to review its decisions unless authorized by statute. The term 'record' in Section 420 of the Companies Act refers to the proceedings of the case, and any error must be a patent error, not a mere wrong decision. The Tribunal concluded that the appropriate course of action for the Review Applicant was to approach the Hon’ble Supreme Court against the judgment.Disposition:The Review Application No. 09 of 2020 in Company Appeal (AT)(Insolvency) No. 848 of 2019 is dismissed. No costs.