TaxTMI 
TaxTMI 
2023 (8) TMI 1744
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....in, Supriyo banerje, Shikhar Tweari, Adv ORDER Per : Justice Rakesh Kumar Jain (Oral) 1. This appeal is directed against the order dated 29th March, 2022 passed by the 'National Company Law Tribunal, Bench-IV, New Delhi (hereinafter referred as to 'the Adjudicating Authority) by which three applications bearing IA No. 2902/ND/2021 and IA No. 2482/ND/2022 filed by the Orris Infrastructure Private Limited (hereinafter referred as to "ORRIS") were partly accepted and IA No. 1663/ND/2021 filed by the Three C Universal Developers Pvt. Ltd. through its Resolution Professional, has been dismissed. 2. In brief, the application bearing IB-2721/ND/2019 has been filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred as to 'Code') by M/s. Straight Edge Contract Pvt. Ltd against M/s. Three C Shelters Pvt. Ltd. before the Adjudicating Authority for the resolution of an amount of Rs. 29,95,91,034/- along with 24% interest. 3. This application was initially heard on 20.07.2020 and the following order was passed: "Heard the submissions made by the Operational Creditor as well as Corporate Debtor. Annexure A-10 which is affidav....
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....ecall or review its own order after the admission of the Petition under Section 9 on the Ground of allegation of fraudulent & malicious intention of initiation of CIRP proceedings?" 7. Both the questions have been decided in Para no. 59 & 61 of the impugned order which read as under: "59. No doubt there is collusion between the petitioner & respondent qua initiation of the CIR proceedings, but under the garb of section 65 of code the entire proceedings already stand initiated before filing of this application, cannot be set aside. Though, NCLT-in the matter of Middle Zone Solitor Hotel India Pvt. Ltd. Vs. Middle Tone Hotel Put. Ltd, held that once there are fraudulent initiation of the proceedings, the said proceedings can be set aside. However, Hon'ble NCLAT, in the matter of Adesh Jain (supra) categorically held that this Tribunal has no power to review its own order. Thus, in the light of the principle laid down in order passed in the matter of Adesh Jain (supra), it is held that this Tribunal is not empowered to review or recall its order, except where there is error apparent on the record, Accordingly, this Tribunal stand barred to recall or review its order da....
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....polis, accordingly, it does not vest with any right, title and interest in that project. e. Project "Greenpolis" belongs Orris being owner of land as well as statutory license holder from Director town & Country planning, Harayan, according, Ld. RP of corporate Debtor is not entitled to take its control and custody. f. Rs. 53 Crores lying in the Escrow account pertains to project Greenopolis and has to be utilized for its construction only, accordingly, Ld. RP of Corporate Debtor doesn't have any right & interest in the same also accordingly, it could not be controlled by him" 9. Aggrieved against the impugned order, two appeals bearing Company Appeal (AT) (Ins) No. 444 of 2022 (present appeal) and 651 of 2022 have been filed. Company Appeal (AT) (Ins) No. 444 of 2022 has been filed by the RP of Three C Universal Developers Pvt. Ltd. who has challenged the finding recorded in para 59 and 61 of the impugned order whereas the other appeal i.e. Company Appeal (AT) (Ins) No. 651 of 2022 has been filed by Straight Edge Contracts Pvt. Ltd through its Resolution Professional challenging the finding recorded in para 59 and 61 of the impugned order that there is a c....
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.... committed a patent error in not recalling the order of admission dated 20.07.2020 & 16.10.2020 despite recording a finding that there has been an active collusion between both the parties in admission of the application filed under Section 9. 18. Section 65 of the Code is reproduced as under: "65(1) If, any person initiates the Insolvency Resolution Process or Liquidation proceedings fraudulently or with malicious intent for any purpose other than for the resolution of insolvency, or liquidation, as the case may be, the Adjudicating Authority may impose upon such person a penalty which shall not be less than one lakh rupees, but may extend to one crore rupees. (2) If, any person initiates voluntary liquidation proceedings with the intent to defraud any person, the Adjudicating Authority may impose upon such person a penalty which shall not be less than one lakh rupees but may extend to one crore rupees". (3) fi any person initiates the pre-packaged insolvency resolution process :- (a) Fraudulently or with malicious intent for any purpose other than for the resolution of insolvency; or (b) with the intent to defraud any person, ....
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....roposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order-by the first court or by the final court- has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. X X X X 25. It has been said: fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent). 26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of "finality of litigation" cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants." 2....