TaxTMI 
TaxTMI 
2026 (5) TMI 518
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.... "(i) The Adjudication Authority be graciously pleased to allow the present intervention application and pass an order allowing the Applicant herein to intervene as party in the above-captioned Company Petition; and (ii) The Adjudicating Authority be further pleased to pass an order to recall/vacate the Order dated 27.05.2021 being without jurisdiction and contrary to law." 3. The aforesaid Intervention Petition was dismissed by the Ld. NCLT vide order dated 12.06.2024, and being aggrieved by it the present appeal has been filed. 4. The brief facts of this case are as under: i. CP(IB) No. 3574/MB/2019 was filed by Mr. Indranil Das and Mrs. Nandita Das under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the 'IBC, 2016') seeking to initiate Corporate Insolvency Resolution Process (hereinafter referred to as the 'CIRP') against M.D. Devcon Private Limited (hereinafter referred to as the 'Corporate Debtor') alleging default in payment of financial debt. ii. The Corporate Debtor was carrying on business of construction and development and one of upcoming residential project known as "SAVANNAH" was being constructe....
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....ection 7(1) of the Code. This threshold requires a minimum of either 100 allottees or 10% of the total allottees within the same real estate project, whichever is lower, to file an application u/s. 7 of the Code. It is contended that the present challenge does not constitute a mere recall petition but rather entails a review of the order on its substantive merits. We agree with this contention. However, it is crucial to distinguish between a review petition and a recall petition. A review petition prompts the Court to assess the merits of the case, typically when there is a glaring error evident on the face of the record. On the other hand, a recall petition does not delve into the substantive merits but rather focuses on retracting an order passed without affording an opportunity for affected parties to be heard. A five-member bench of the Hon'ble NCLAT in Union Bank of India v/s. Dinakar T. Venkatasubramanian had held (vide its Judgment dated 25th May, 20 No. 3961 of 2022 in Company Appeal (AT)(Ins.) No. 729 of 20 that though the power to review is not conferred upon the Tribunal but power to recall its judgment is inherent in the Tribunal and is preserved by Rule 11 of the N....
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....ever, such power is to be exercised sparingly, and not as a tool to re-hear the matter. Ordinarily, an application for recall of an order is maintainable on limited grounds, inter alia, where (a) the order is without jurisdiction; (b) the party aggrieved with the order is not served with notice of the proceedings in which the order under recall has been passed; and (c) the order has been obtained by misrepresentation of facts or by playing fraud upon the court/ Tribunal resulting in gross failure of justice." (Emphasis Supplied) 18. If the Applicant/Intervenor was aggrieved by the Order dated 27.05.2021 passed by the Adjudicating Authority u/s. 7 of the Code, then it was open to him to impugn the aforementioned Order in appeal before the Appellate Authority u/s. 61 of the Code. However, the said remedy was not pursued. Consequently, we cannot permit the Applicant/ Intervenor to utilize the Tribunal's inherent power of recall as a means to revisit or re-hear the matter. It is firmly established in legal doctrine that objectives which cannot be attained directly cannot be pursued indirectly. Hence, by allowing the time limit for filing an appeal under Section 61 of th....
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....e Appellant and going through the record, we are of the view that the ground projected by the Appellant in his capacity as Resolution Professional of NDL for seeking impleadment in CP IB21 15/ ND/2019 pending consideration before the Adjudicating Authority does not warrant impleadment of Appellant as party Respondent. In an application under Section 7, the Financial Creditor and the Corporate Debtor alone are the necessary party and the Adjudicating Authority iS, at the pre-admission stage, only required to satisfy itself that there is a financial debt in respect whereof the Corporate Debtor has committed a default warranting triggering of CIRP. The Adjudicating Authority is required to satisfy itself in regard to there being a financial debt and default thereof on the part of the Corporate Debtor besides the application being complete as mandated under Section 7(5) of the 'I&B Code' and then pass an order of admission or rejection on merit as mandated under subsection (4) of Section 7 within 14 days. No third- party intervention is contemplated at that stage." (Emphasis Supplied) The Hon'ble NCLAT in Prayag Polytech Pvt Ltd. v/s. Hind Tradex Ltd. (....
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....Coya Beacon Trusteeship case (supra) had held as follows: "7. Considering the provision of Section 65 of the IBC, it is necessary for the Adjudicating Authority in case such an allegation is raised to go into the same case, such an objection is raised or application is filed before the Adjudicating Authority, obviously, it has to be dealt with in accordance with law. The plea of collusion could not have been raised for the first time in the appeal before the NCLAT or before this Court in this appeal. Thus, we relegate the appellant to the remedy before the Adjudicating Authority. 8. In case, a proper application is filed, aspect whether the proceedings have been initiated in collusive manner will be looked into, in accordance with law and the appropriate orders have to be passed, considering the facts and circumstances of the case. We have made it clear that we have not commented on the merit of the case. We set aside the impugned order passed by the NCLAT and dispose of the appeal in accordance with the aforesaid direction." 23.2. From a straightforward interpretation of the quoted judgment, it is evident that whenever allegations of fraud, collusion, or....
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....n process by financial creditor: (1) A financial creditor either by itself or jointly with 1[other financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Government,] may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. [Provided that for the financial creditors, referred to in clauses (a) and (b) of sub-section (6A) of section 21, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent. of the total number of such creditors in the same class, whichever is less: Provided further that for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent. of the total number of such allottees under ....
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....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) 9. The Hon'ble Supreme Court in the case of Greater Noida Industrial Development Authority v/s. Prabhjit Singh Soni & Anr. vide Judgment dated February 12, 2024 in Civil Appeal Nos. 7590-7591 of 2023 as follows: "50. .... Therefore, even in absence of a specific provision empowering the Tribunal to recall its order, the Tribunal has power to recall its order. However, such power is to be exercised sparingly, and not as a tool to re-hear the matter. Ordinarily, an application for recall of an order is maintainable on limited grounds, inter alia, where (a) the order is without jurisdiction; (b) the party aggrieved with the order is not served with notice of the proceedings in which the order under recall has been passed; and (c) the order has been obtained by misrepresentation of facts or by playing fraud upon the court/ Tribunal resulting in gross failure of justice." (Emphasis supplied) 10. This Tribunal in the case....