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2023 (7) TMI 308
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....his application: (i) On an application filed under Section 7 by the Union Bank of India against the Corporate Debtor - Amtek Auto Ltd., the Adjudicating Authority (National Company Law Tribunal), Chandigarh Bench initiated insolvency resolution process by order dated 27.07.2017. (ii) Union Bank of India and other creditors filed their claims in pursuance of the public announcement. The Union Bank of India from time to time issued various LCs and VGs on behalf of the Corporate Debtor maintained with them acting as the financial institution. (iii) After several proceedings, Resolution Plan submitted by Respondent No. 2 and 3 was approved by the CoC with majority voting share of 70.07% on 11.01.2020. (iv) The Resolution Professional filed application for approval being I.A. No. 255/2020 and I.A. No. 222/2020 was also filed by the Union Bank of India. The Adjudicating Authority by order dated 09.07.2020 allowed the I.A. filed by the Resolution Professional and dismissed I.A. filed by the Union Bank of India. (v) Union Bank of India filed Company Appeal (AT) (Ins.) No. 729/2020 under Section 61 of the Code before this Appellate Tribunal assailing the order dated 09.07.2020. In the ....
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....New Delhi (NCLAT) on the observations made by it in para 10.28 of the impugned judgment. The permission is accordingly granted. The Civil Appeal stands dismissed as withdrawn with the above liberty. All the contentions which will be available to the parties are kept open." (viii) After the order of the Hon'ble Supreme Court dated 01.04.2022, the Applicant filed a Review Application in Company Appeal (AT) (Ins.) No. 729/2020 being Review Application No. 01/2022. The Review Application No. 01/2022 came to be dismissed by this Tribunal vide order dated 02.09.2022. While holding that there is no provision for review in the Code, this Tribunal made following observation in Para 10: "10. We are one with the argument raised by Counsel for the Respondent in this regard and thus, it is hereby held that no review application is maintainable before this Tribunal as there is no provision for review in the Code. However, the Appellant, if so advised, may take recourse to its other remedy in accordance with law in case it is still aggrieved against the order dated 27.01.2022 or a part of it." (ix) After the aforesaid order of this Tribunal refusing to entertain the Review Application, the ....
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....er which has been passed adversely affecting the rights of the parties to the proceeding. 4. Shri Gopal Jain, learned senior counsel appearing for the Respondent No.1 contends that this Recall Application is not maintainable since Review Application No. 01/2022 filed by the Applicant has already been rejected by this Tribunal on 02.09.2022. The Hon'ble Supreme Court had granted liberty to the Applicant to file a Review Petition which having been filed and dismissed no further remedy can be availed by the Applicant. Rule 11 cannot be invoked for passing an order which is not provided for in the I&B Code. There being no provision for review in the I&B Code, the present Recall Application which is review in disguise cannot be entertained. 5. Learned counsel for the Respondent No.2 refuting the submissions of learned counsel for the Applicant submits that the Recall Application is not entertainable, Review Application filed by the Applicant already being dismissed by this Tribunal on 02.09.2022. Learned counsel for the Respondent No.2 has relied on two judgments of three member bench of this Tribunal being judgment dated 25.10.2021 passed in "I.A. No. 265 of 2020 in Company Appeal (A....
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.... 2 SCC 703, Asit Kumar Kar Vs. State of West Bengal & Ors." and "(1999) 4 SCC 396, Budhia Swain & Ors. Vs. Gopinath Deb & Ors.". 9. We may first notice the judgment of Hon'ble Supreme Court which has been relied by learned counsel for the Applicant. Judgment of Hon'ble Supreme Court in "A. R. Antulay Vs. R.S. Nayak & Another" (supra) is a case where in an appeal question arose as to whether the Hon'ble Supreme Court in exercise of its powers can set aside a direction given by earlier judgment of Hon'ble Supreme Court dated 16.02.1984. Learned counsel for the Applicant has relied on the opinion of Venkatachaliah, J., who in paras 159, 160 and 161 laid down following: "159. But in certain cases, motions to set aside Judgments are permitted where, for instance a judgment was rendered in ignorance of the fact that a necessary party had not been served at all, and was wrongly shown as served or in ignorance of the fact that a necessary party had died, and the estate was not represented. Again, a judgment obtained by fraud could be subject to an action for setting it aside. Where such a judgment obtained by fraud tended to prejudice a non party, as in the case of judgments in-rem such....
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.... 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." 12. In another judgment of "Budhia Swain & Ors. Vs. Gopinath Deb & Ors." (Supra), the Hon'ble Supreme Court has dealt with poser to recall. The Hon'ble Supreme Court held in the said case that power of recall cannot have been exercised and order of the Collector could be sustained only if supportable by the power to recall. In Paras 5, 6, 7 and 8 following has been laid down: "5. The only provision for review in the Act is to be found in Section 38-A whereunder a review may be sought for within one year from the date of the decision or order but only on the ground that there has been a clerical or arithmetical mistake in the course of any proceedings in the Act. It was also conceded by the learned counsel for the appellants that the proceedings initiated by the appellants were certain....
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....l 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 exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence." 13. The above judgment of the Hon'ble Supreme Court clearly laid down that when a judgment is rendered in ignorance of the fact that a necessary party had not been served at all or heard, the power to recall can be used. 14. Now we need to notice the two judgments relied by learned counsel for the Respondent in support of hi....
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....view' is not an 'inherent power'." 16. In the above case, this Tribunal noticed that the judgment of this Tribunal dated 16.10.2019 was not appealed before the Hon'ble Supreme Court, which judgment has become final. Following was noted in Para 29: "29. It is not in dispute that as against the judgment dated 16.10.2019 in Comp App (AT)(Ins) No.412/2019 (in the matter of Agarwal Coal Corporation Pvt Ltd V Sun Paper 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'." 17. This Tribunal further held that although the application is styled as recall application, it is application praying for review. In Paras 30, 31 and 32 following was held: "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 Appl....
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.... power of 'review' or 'recall' vested with the Adjudicating Authority/Appellate Authority, any order/judgment passed by it cannot be either reviewed or recalled". It is further held by NCLAT in the same judgment that a judgment passed by the Tribunal becomes 'conclusive', 'final' and 'binding' and the Applicant cannot take recourse to rule 11 of the NCLAT Rules, 2016, which provide 'inherent powers'. The same judgment held that appropriate course of action open to the applicant is to approach the Hon'ble Supreme Court under section 62 against the said judgment, if the Applicant so desires. 11. The CPC has specific provision regarding inherent powers and hence, we are of the opinion that the above stated ratio shall apply in the present matter, insofar as it relates to a wrong that may be there in a final order. 12. The Learned Counsel for Applicant has cited judgment of Hon'ble Supreme Court in the matter of Rama Narang v. Ramesh Narang (supra) and judgment of the Bombay High Court in the matter of Nirmal Urban Co-operative Bank Ltd. v. Mamta Keneddy Naidu (supra) where the fact that merely because an order or decree is executable, would not take away the court's jurisdiction....