2026 (5) TMI 70

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....9 of the I & B Code, 2016, has been rejected on merits by an order that was passed by the Ld. Tribunal, as back as, on 29.01.2025. Against which, the Appellant had preferred a Company Appeal (AT) (CH) (INS) No. 223 / 2026, with the Condone Delay Application, seeking condonation of 391 days of delay that, has chanced in preferring the Company Appeal. The was sought to be condoned on the ground of pendency of the Recall Application. 3. The Company Appeal preferred by the Appellant, as against the principal order of rejection of Section 9 Application, under the Code, since the number of days of delay that was being sought to be condoned was falling much beyond the prescribed period of limitation as given under the statute we have dismissed the Appeal holding it, being barred by limitation. 4. After the dismissal of the Company Petition by the Judgment of 29.01.2025, the Appellant is said to have filed a Recall Application seeking recall of the order which was numbered as IA (IBC) / 393 / 2025. 5. In the application for recall, which was preferred by the Appellant was by invocation of Rule 11 of the NCLT Rules 2016. In the application that was filed for recalling of the order ....

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....sting entity" is SAS Infra, and the name of the "proposed company" is the Corporate Debtor." 8. Discovery of new document, after decision on merits cannot be a reason to sustain recall, when there is no error in the order sought to be recalled. Whatsoever the documents that has been referred in Para 4 admittedly were the documents, which were alleged by the Appellant to have been discovered by the Appellant after the order of 29.01.2025, rendered on merits. 9. Discovery of a document subsequently, which could have substantiated the principal proceedings under Section 9 of the Code, cannot be a reason for recalling of an order, which has been adjudicated on merits. Any such type of a recall application will amount to be a clear attempt to review an order, which has been passed on merits and if the remaining contents of the Recall Application is taken into consideration, the Appellant had only pleaded qua the merits of the documents and how it would effect the proceedings, which has been taken has to be the basis for recall which cannot be considered by the Tribunal at the stage when the recall was being considered of the principal order. 10. Furthermore, the Appellant has p....

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....ere was an observation made in Para 14 of the Judgment that "the Appellant has failed to place any documentary evidence on record to substantiate the claim to show as to how the purported takeover occurred nor as the Operational Creditor presented any legal or financial document, establishing the liability". 14. If this be the finding, the recall would be tantamounting to be a disguised platform for review, since the rejection of the Application under Section 9 of the Code, by an order of 29.01.2025, is based upon merits because of the Appellant's inability to establish the case by way of a documentary evidence on record, that cannot now be supplied by the Recall Application nor even the documents supplied by the Recall Application can be taken has to be the basis to recall the order that has been passed on merits. 15. Hence, the Tribunal observed that the review is not a scope open and the powers under Rule 11, for exercising the inherent powers is not to be misread to be construed as if it is conferring a power of review. (a) Even otherwise also, the issue pertaining to as to what would be the ambit of recall and that too, while exercising the inherent powers under....

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....ect altogether on the issue of consideration of the O.T.S. proposal, factually the issue being distinct altogether, it may not be applicable. (b) The Ld. Counsel for the Appellant had referred to yet another Judgment reported in 2026 SCC OnLine NCLAT 325 Kamma Srinivasa Rao v. IDBI Bank Limited. In the said Appeal, we were dealing with as to under what circumstances the provisions contained under Order XLI Rule 27 of C.P.C. in principle to be read with Rule 73 could be attracted. We were dealing with taking of documents on record in the said case at an Appellate stage. This case too was based upon different issue altogether, it will not be applicable in the present case. Hence, the same does not help the Appellant in any manner whatsoever. 19. The Ld. Counsel for the Appellant had referred to the Judgment of 1994 Vol 31 DRJ as rendered in IA No. 11047 / 1992 in CO No. 8 / 1992 M/s. Colgate-Palmolive Co. v. Hindustan Rimmer & Ors., which was dealing with an aspect of Section 5 to be read with Section 14 for delay in Appeal which will not apply. 20. The aforesaid principle would not be exclusively made applicable until and unless the parameters prescribed for carvin....