TaxTMI 
TaxTMI 
2023 (7) TMI 209
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....y Bhatt, Ms. Ruchi Goyal, Advocates for R-2 (RP). ORDER ASHOK BHUSHAN, J. This Bench has been constituted to consider three questions referred by the three-member bench vide its order dated 09.02.2023, which are to the following effect: "I. Whether this Tribunal not being vested with any power to review the judgment can entertain an application for recall of judgment on sufficient grounds? II. Whether judgment of this Tribunal in "I.A. No. 265 of 2020 in Company Appeal (AT) (Ins.) No. 412 of 2019, Agarwal Coal Corporation Private Limited Vs Sun Paper Mill Limited & Anr." and "I.A. No. 3303/2022 in Company Appeal (AT) (Ins.) No. 359 of 2020, Rajendra Mulchand Varma & Ors Vs K.L.J Resources Ltd & Anr." can be read to mean that there is no power vested in this Tribunal to recall a judgment? III. (In the above two judgments this Tribunal has held that this Tribunal cannot recall its judgment in exercise of its inherent jurisdiction) Whether the judgment of this Tribunal in "Agarwal Coal Corporation Private Limited Vs Sun Paper Mill Limited & Anr." and "Rajendra Mulchand Varma & Ors Vs K.L.J Resources Ltd. & Anr." lays down the correct law?" 2. Bac....
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....o. 3961/2022, in which I.A. following prayers have been made: "PRAYER In the light of aforesaid facts and circumstances it is humbly prayed that this Hon'ble Appellate Tribunal may graciously be pleased to: (a) Allow the present application and recall the order dated 27.01.2022 passed by this Appellate in Company Appeal (AT) (Ins) No. 729/2020) (b) Direct ad interim stay of the operation of the order dated 27.01.2022 passed by this Hon'ble Appellate Tribunal in Appeal (AT) (Ins) No. 729/2020 till disposal of the present Recall Application. (c) Pass any other order which this Hon'ble Appellate Tribunal may deem fit in eyes of equity, justice and good conscience taking into account the specific facts and circumstances of the case." viii. When I.A. No. 3961/2022 came before three-member bench, submission was raised on behalf of the Respondents to the application objecting to the maintainability of the application. Two three-member bench judgments were relied before the three-member bench for the preposition that neither a review nor recall application is maintainable to review or recall judgment of this Tribunal. The judgme....
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....ssed without giving an opportunity of hearing to an affected party is an order which violates the principles of natural justice and deserves to be recalled. It is submitted that the judgment of three-member bench of this Tribunal in "Agarwal Coal Corporation Private Limited" and "K.L.J Resources Ltd." (Supra) holding that Tribunal can neither exercise jurisdiction to review nor jurisdiction to recall does not lay down correct law. There is no jurisdiction in the Tribunal to review a judgment but Tribunal has ample jurisdiction to recall a judgment on the Tribunal being satisfied that there being procedural error in delivering a judgment by the Tribunal which needs correction. Learned counsel for the Applicant, however, submits that Applicant is not contending that those applications which are disguised as recall petition but in actual are review petition should be entertained by this Court. This Tribunal need not entertain any recall petition which is in essence a review petition. 5. Shri R. Venkata Ramani, learned Attorney General submits that in I.A. No. 222/2020 which was filed by the Union Bank of India before the Adjudicating Authority, only party impleaded was the Resoluti....
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....commissions for the examination of witnesses or documents; (f) dismissing a representation for default or deciding it ex parte; (g) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and (h) any other matter which may be prescribed. (3) Any order made by the Tribunal or the Appellate Tribunal may be enforced by that Tribunal in the same manner as if it were a decree made by a court in a suit pending therein, and it shall be lawful for the Tribunal or the Appellate Tribunal to send for execution of its orders to the court within the local limits of whose jurisdiction,- (a) in the case of an order against a company, the registered office of the company is situate; or (b) in the case of an order against any other person, the person concerned voluntarily resides or carries on business or personally works for gain. (4) All proceedings before the Tribunal or the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860), and the Tribunal and the Appell....
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..... ......... The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it." 12. Inherent power by a Court or Tribunal can be exercised to do justice between the parties, which exercise, however, in no manner should contravene any express provision of the statute. 13. Now we proceed to notice the judgments which have been relied by learned counsel for the Applicant and three-member bench judgments of this Tribunal which has been referred to in the referring order. The first judgment which has been relied by learned counsel for the Applicant is judgment of Hon'ble Supreme Court in ""(1988) 2 SCC 602, A. R. Antulay vs. R.S. Nayak & Another". In the above case, before the Hon'ble Supreme Court question arose as to whether the Hon'ble Supreme Court....
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....in exercise of the inherent jurisdiction of the court without needing to have recourse to the Rules that deal expressly with proceedings to set aside orders for irregularity and give to the judge a discretion as to the order he will make." 14. The Hon'ble Supreme Court in the above judgment has clearly held that where a party has had no notice and decree is made against him, he can approach the court for setting-aside the decision. 15. The next judgment relied by learned counsel for the Appellant is the judgment of Hon'ble Supreme Court in "(2009) 2 SCC 703, Asit Kumar Kar Vs. State of West Bengal & Ors.". The Hon'ble Supreme Court in the said judgment has noted distinction between review and recall petition in para 6, which is to the following effect: "6. There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party." 16. In another judgment of "(....
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....ion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppel. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results. 8. In our opinion a tribunal or a court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party, or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exe....
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....ent which is inherent in the Court or Tribunal. In Para 19 following has been laid down: "19. Applying these principles it is apparent that where a Court or quasi-judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi-judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi-judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi-judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or re....
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....ecord. It is in the latter sense that the court in Patel Narshi Thakershi case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal."" 20. The above judgments of the Hon'ble Supreme Court clearly lays down that there is a distinction between review and recall. The power to review is not conferred upon this Tribunal but power to recall its judgment is inherent in this Tribunal since inherent power of the Tribunal are preserved, powers which are inherent in the Tribunal as has been declared by Rule 11 of the NCLAT Rules, 2016. Power of recall is not power of the Tribunal to rehear the case to find out any apparent error in the judgment which is the scope of a review of a judgment. Power of recall of a judgment can be exercised by this Tribunal when any procedural error is committed in delivering the earlier judgment; for example; necessary party has not been served or necessary party was not before the Tribunal when judgm....
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....er Ltd & Anr) passed by this "Appellate Tribunal'' dismissing the Appeal, the Applicant/Appellant has not preferred an "Appeal'' to the Hon'ble Supreme Court of India as per Section 62 of the I&B Code, 2016. Therefore, it is crystalline and clear that the judgment dated 16.10.2019 passed by this Tribunal in Comp. Appl. (AT)(Ins) No.412/2019 between the parties inter se has become 'conclusive', 'final' and 'binding'. 30. A mere reading of the contents of IA No.265/2021 in Comp App. (AT)(Ins) 412/2019 indicates latently and patently that although in the preamble it is mentioned as "Recall Application'' yet it is only an "Application'' praying for "Review'' of the Order dated 16.10.2019 passed in Comp App. (AT)(Ins) No.412/2019 by this Tribunal, in stricto sense of the term." 22. In para 27, Tribunal has observed that order passed by Adjudicating Authority or Appellate Tribunal cannot be either reviewed or recalled. From reasons given in the judgment, it is clear that against the order of the Tribunal dismissing the appeal on 16.10.2019 an appeal was filed under Section 62 of the I&B Code before the Hon'ble Supreme Court, which appeal was dismissed as not pressed. Three-me....