TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 338
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.... Ld. NCLT, Chennai, which are extracted below: 3. One of us was member of the Bench which had passed the order dated 22.12.2023, while the then Technical Member had since demitted office. 4. It was the submission of the appellant that he was not present during the hearing and adverse order was passed by the Ld. NCLT without giving the appellant an opportunity of being heard. 4.1 It was also the submission of the appellant that he was ready with the documents on 16.07.2022, but could hand over the same to the new Liquidator only on 25.03.2023. 4.2 It was submitted by the appellant that an Advocate Commissioner was appointed by the Adjudicating Authority with whom he had fully cooperated and this was noted by the Advocate Commissioner in his report dated 25.04.2023. 4.3 It is the submission of the appellant that Ld. NCLT ought not to have made the observations against him in his absence. 4.4 Initially the appellant had filed an application for review of order of this Tribunal order dated 22.12.2023. Vide order dated 19.03.2024, we have recorded that this Tribunal has no power of review and the said Review Application No. 3 of 2023 is not maintainable. The appellant ....
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....plete evidence calls into question the Tribunal's jurisdiction in making such a ruling. 3. IBBI Investigation and Hon'ble Supreme Court Judgment: 3.01 The Petitioner highlights the investigation initiated by IBBI based on the complaint of IDBI Bank, fearing consequences of admitting to making false statements in an affidavit before Hon'ble Supreme Court confirm that they made false statements for removing the Petitioner as liquidator to cover up, the fraudulent lending of Rs. 252 Crores to the Erstwhile Promoters. 3.02 Furthermore, the judgment by the Hon'ble Supreme Court in CA 1614 of 2023, in favor of the Petitioner, has caused IDBI Bank to initiate further litigation by filing frivolous cases against the Petitioner using order of dismissal by this Hon'ble Tribunal. In this context of ongoing legal harassment and the fraudulent conduct of the parties involved necessitate a reconsideration of the earlier order." 6. In the order dated 22.12.2023 passed in Company Appeal (AT) (CH) (Ins.) No. 155 of 2023, against which the recall application has been filed, this Tribunal has held as under: "7. The short point which falls for....
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....on from the staff of the new Liquidator for smooth transition of the records, which was ignored by the Adjudicating Authority. It is clear from the report and the Orders that it was only after the appointment of the Advocate Commissioner that the records were handed over to the new Liquidator. The contention of the Appellant that the Advocate Commissioner had only spent a couple of hours and there is no justification for increasing the fees from Rs. 50,000/- to Rs. 4,00,000/-, is not relevant to the facts and circumstances of the case on hand. The question here is whether the observations made by the Adjudicating Authority regarding the conduct of the Appellant, is justified and not the fee of the Advocate Commissioner. 10. The chronology of dates and events establishes that the Appellant was present and heard on several dates specifically regarding the issue on hand. It is pertinent to mention that when the Advocate Commissioner was appointed to facilitate the handover of the documents and implement the Order of the Adjudicating Authority regarding the transition of the control and custody of the statements, records and assets of the Corporate Debtor Company, there was no....
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...., or when the Court is misled by a party or when the Court itself commits a mistake which prejudices a party. 9. The Hon'ble Supreme Court in the case of A.R. Antulay Vs. R.S. Nayak [(1988) 2 SCC 602], has observed that recall lies where judgement has been rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served, or in ignorance of the fact that a necessary party had died and the estate was not represented or where the judgment was obtained by fraud, or a judgment where the party who had no notice when the decree was passed against him and he approaches the court for setting aside the order. 10. The Hon'ble Supreme Court in the case of Sri Budhia Swain and Ors. v. Gopinath Deb and Ors., (2017) ibclaw.in 282 SC, has examined the power of recall vested in Tribunals or Courts and has given the guidelines as under: ".....What is a power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian Bank Vs. M/s Setyam Fibres India Pvt. Ltd. 1996 (5) SCC 550. Vide para 23, this Court has held that the courts have inherent power to recall and set aside an order (1) obtained by fraud ....
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.... 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. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation. 11. This Tribunal in the case of Aircastle (Ireland) Ltd. vs. Mr. Ashish Chawchharia, The Resolution Professional of Jet Airways (India) Limited And Ors., Company Appeal (AT) (Ins.) No. 1178 of 2024, has held as under: "56. At this stage, it is important to go into aspect of recall v/s review primary issue in the ....
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....fixed on 07.06.2023, 28.06.2023, 19.09.2023, 09.11.2023,18.12.2023 and 22.12.2023 and on all the dates the appellant had appeared in person and his presence is duly recorded in the orders. We note that in the daily order dated 18.08.2025 passed in the present proceedings, we have recorded as under: "Counsel for the Applicant/Appellant, during the course of hearing, has submitted that he is aggrieved against the order passed by the Ld. NCLT. On our pointed query, as to whether, there is any factual error in the order passed by this Tribunal for which the application for recall has been filed, he has submitted that opportunity of hearing was not given by the Ld. NCLT. We have heard Counsel for the Applicant/Appellant. Order reserved." 13. We find that representations made by the appellant have been duly noted in the order dated 22.12.2023. On specific query as to whether any factual error is there in the order of this Tribunal, the appellant submitted that there is no factual error in the order but he is aggrieved by the fact that the Adjudicating Authority (NCLT) had made the remarks against him in his absence. 14. We note from the order dated 22.12.2023 that it is st....
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....d above, we find no reason to recall the order of this Tribunal dated 22.12.2023, therefore, the I.A. No. 677 of 2024 is dismissed. No order as to costs. Pending application(s), if any, are also disposed of. ============= Document 1 Be that as it may, it appears that certainly there was non-cooperation from the side of the erstwhile liquidator. It is seen that last document was handed over on 18.03.2023 by the old liquidator to the new liquidator which was nearly 8 1/2 months from the date of the order for change of liquidator by this Tribunal. It is also seen that certain documents are still to be handed over, a list of which has been provided in the compliance affidavit filed by the new liquidator on para no.2 in Page no.2 as reproduced below: 2 that the lotowing material documenta and in ore yet to be honderd ever bry the trainhle Liquidator dersigned. Nature of Documents/information yet to be collected A det of Istehekters proporet based on the clowns Centicore on Constitution of Stukanders Consultoon COMO ANTRIBUNAL NATIONAL C Corporate Debe toes of Accounts of the Corporate Debtor for the lost Asset Register of the Company CHENOW ....