TaxTMI 
TaxTMI 
TaxTMI 
2024 (1) TMI 897
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....nal observed that in Para 29, as follows : "29. We find it apposite to place reliance on the recent Judgment of the Hon'ble Apex Court in the matter of 'Axis Bank Limited Vs. Naren Sheth & Anr.' dated 12/09/2023 reported in [2023 SCC OnLine 1152], wherein in paras 14 to 17 the Hon'ble Supreme Court has addressed to whether the OTS proposals would be construed as acknowledgment of Debt under Section 18 of the Limitation Act, 1963, placing reliance on Dena Bank (Supra) held that the three OTS proposals were within the period of limitation under Law. To reiterate, though the question of acknowledgment in balance sheets has not been raised by the Respondent herein, the OTS proposals dated 22/11/2008, 17/12/2008, 25/12/2008, 27/12/2008, 12/04/2010, 15/11/2012, 02/04/2013, 03/07/2017, 06/04/2019, 02/07/2019, 16/08/2019, 26/08/2019 are factually found to be within the period of limitation under Law. Even post filing of the Section 7 Application, OTS proposals dated 17/09/2019, 21/09/2019, 11/10/2019, 18/12/2019, 20/02/2021, 07/08/2021, 02/10/2021, 23/04/2022, 15/06/2022 and 27/08/2022 are part of the record filed. At the cost of repetition, keeping in view, the ratio of the Hon'ble Apex....
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....n 27.02.2012." 6. From the aforenoted directions, it is clear that the Sivananda Reddy Group was in the management of the affairs of the Company. This Order of BIFR was stayed by AIFR on 21.02.2012. It is not in dispute that the Applicant was a Party to the BIFR Proceedings and the question of any `Fraud' having been played on this Tribunal by the Financial Creditor, on this ground, does not arise. Therefore, the several Citations, regarding `Fraud' and `Acknowledgement of Debt', under Section 18 of the Limitation Act, 1963, by Personnel who did not have jural relationship, filed by the Applicant, are not relevant at this juncture. The OTS Letter reproduced in Paragraph 21 of the Order in Comp. App (AT) (CH) (INS) No. 159 / 2023 is examined by this Tribunal, wherein in Paragraph (iii) in `OUR REPLY' in the Letter dated 15.11.2012, the Applicant / Mr. D. Srinivasa Rao, has on behalf of the Corporate Debtor Company, admitted as follows: "OUR REPLY: (iii) However, we hereby accept whatever offer of one time settlement you have agreed vide letter ref. no. SASF/PFL/2008-09/2, Dt. 27.12.2008. We agreed to pay the balance amount as per the terms agreed to and it is pertinent to bring....
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....sue raised with respect to OTS Proposals being `Conditional Proposals', made by the Company during the period 03.07.2007 to 26.09.2022 and the issue of Limitation and that these `Conditional Acknowledgements', will not attract Section 18 of the Limitation Act, 1963, are interlinked. 14. To reiterate, the issue of `Conditional Acknowledgement' has also been addressed to, by this `Tribunal' in detail in its Order dated 21.09.2023 and if the Applicant is aggrieved by the reasoning or the findings, the same cannot be agitated in a `Recall Application', keeping in view the ratio laid down by the Hon'ble Apex Court in Budhia Swain & Ors. Vs. Gopinath Deb & Ors., reported in (1999) 4 SCC 396, wherein the Hon'ble Supreme Court has dealt with the `Power to Recall'. Paragraphs 5, 6, 7 & 8 of this Judgment deal with the following proposition:- "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 appellan....
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....t 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 available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence." ( Emphasis Supplied ) 11. In the aforenoted judgement, the grounds for 'Recall' are clearly elucidated. ....