TaxTMI 
TaxTMI 
2023 (7) TMI 308
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....ed to notice few facts giving rise to this 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 Tribu....
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.... Shri Shanjay Bhatt, learned counsel appearing on behalf of the appellant seeks permission to withdraw the present appeal with a liberty to file a review application before the National Company Law Appellate Tribunal, Principal Bench, 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 The Civil Appeal stands dismissed as withdrawn with the above liberty.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 ad....
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....peal. It is submitted that Applicant thus is not praying for recall of the order on merits of the judgment rather Applicant is praying for procedural review, which is permissible in the facts of the present case. It is submitted that under inherent powers this Tribunal can recall an order 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....
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.... of natural justice, Applicant being not before the Tribunal. Hence, they have every right to make prayer for setting aside the ex-parte order. Learned ASG in support of his submissions referred to judgments of Hon'ble Supreme Court in "(1988) 2 SCC 602, A. R. Antulay Vs. R.S. Nayak & Another", "(2009) 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 s....
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....setting aside the judgment. 11. The next judgment relied by learned counsel for the Appellant is the judgment of Hon'ble Supreme Court in "Asit Kumar Kar Vs. State of West Bengal & Ors." (Supra). 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." 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....
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....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 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 availab....
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....in main proceedings are not to be reopened/re-agitated under the garb of ''Review Petition'' as per decision Sharada Bai V. Padamlal, 2003 All India High Court Cases 1756 (1757) (Andhra Pradesh). Also for correcting an erroneous decision, "Review" will not lie, as opined by this "'Tribunal''. Further, the Hon'ble Supreme Court in Patel Narshi Thakershi vs. Pradyumansinghji Arjunsinghji reported in AIR 1970 Supreme Court 1273 had observed and held that 'power of Review' 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 Tribuna....
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.... by NCLAT. Section 61 in Chapter VI of IBC provides for "Appeals and Appellate Authority" wherein the grounds of filing an appeal of the order of NCLT/Adjudicating Authority are provided. Section 62 of the IBC provides for filing of appeal to Hon'ble Supreme Court on the question of law arising out of an order of NCLAT. 8. It is noted that in the matter of Agarwal Coal Corporation Pvt. Limited vs. Sun Paper Mills Limited (2018) 1 SCC 407 passed by the NCLAT, it is held that "in the absence of any 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 th....