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2021 (2) TMI 120 - AT - IBCJurisdiction - power of Tribunal to review its own order - mistake apparent on the face of record or not - It is the case of the Review Applicant that the accounts were reconciled with the sister concerns and therefore no amount was due and payable and hence there is an error apparent on the face of record and sought for remanding the matter to the Learned Adjudicating Authority for a de novo consideration - whether it is otherwise permissible in law for this Tribunal to Review its Judgement passed in Appeal? - HELD THAT - This Appellate Tribunal while dealing with the scope of power conferred under Rule 11 in Action Barter Private Limited V/s. SREI Equipment Finance Limited Anr. 2020 (9) TMI 843 - NATIONAL COM PANY LAW APPELLATE TRIBUNAL, NEW DELHI and it was held that Rule cannot be invoked to revisit the findings returned as regards the assertion of facts and pleas raised in the appeal and it is not open to re-examine the findings on questions of fact, how-so-ever erroneous they may be. The mistake/error must be apparent on the face of the record and must have occurred due to oversight, inadvertence or human error. Of course it would be open to correct the conclusion if the same is not compatible with the finding recorded on the issues raised. We accordingly decline to entertain any plea in regard to the merits of the matter involved at the bottom of the appeal and confine ourselves to the interpretation of the findings recorded and the conclusions derived therefrom as regards fate of the application under Section 7 of I B Code filed by the Financial Creditor and the disposal of appeal. It is significant to mention that in the NCLAT Rules, 2016 there is no express provision for Review and the contention of the Review Applicant that Rule 11 of the NCLAT Rules, 2016 is applicable and therefore this Application is maintainable, is untenable as the power vested in this Tribunal under Rule 11 can only be exercised to enhance cause of justice or prevent abuse of process. To reiterate, Power of Review has to be granted by statute and the power of Review is not an inherent power and therefore cannot be exercised unless conferred specifically or by necessary implications - The error must be a patent error which is manifest and self-evident . The submissions of the Review Applicant in this case would amount to re-appraisal of evidence and findings of fact cannot be revisited within the limited scope of exercise of powers under Rule 11. It appears that the Appellant is trying to have a re-hearing which is not permissible - There is no mistake apparent from the record and the Applicant cannot be permitted to seek re-hearing of the Appeal in regard to any finding which would amount to sitting in an Appeal in disguise. In the garb of this Review Application, the Applicant seeks to re-argue the matter. This Review Application is dismissed as impermissible in Law and as no mistake apparent from the record is made out.
Issues Involved:
1. Genuineness of the signature of Mr. Vikas Gandhi. 2. Consideration of reconciled accounts and confirmatory letters. 3. Pre-existing dispute and journal entries. 4. Jurisdiction and power of the Tribunal to review its own orders. 5. Applicability of Rule 11 of NCLAT Rules and inherent powers. 6. Scope of review under Section 420(2) of the Companies Act, 2013. Detailed Analysis: 1. Genuineness of the Signature of Mr. Vikas Gandhi: The Review Applicant contended that the genuineness of the signature of Mr. Vikas Gandhi, who had left the company, could only be proved by leading evidence in a Civil Court. The Tribunal noted that the material on record evidenced that Mr. Gandhi had resigned on 22.01.2018, and the signatures purported to be his did not match even on a bare reading of his service record. The Tribunal found force in the contention that the Articles of Association of the Company mandated the presence and signature of the Director wherever the stamp of the Company is used. 2. Consideration of Reconciled Accounts and Confirmatory Letters: The Review Applicant argued that reconciled accounts and confirmatory letters exchanged between the parties were not considered. The Tribunal observed several discrepancies in the letters and journal entries relied upon by the Applicant. The Tribunal found that the ledger relied upon by the Applicant was dated 01.04.2019, whereas the Operational Creditor had demanded the same debt in notices dated 17.08.2018 and 27.10.2018. The Tribunal noted that there were no substantial reasons given as to why only the ledger of the Corporate Debtor depicted these entries and not the ledger of the Operational Creditor. 3. Pre-Existing Dispute and Journal Entries: The Review Applicant submitted that there was a 'Pre-Existing Dispute' due to journal entries and reconciliation statements. The Tribunal found that the amounts reflected in the journal entries were unsustainable, especially considering the evidence on record and the specific pleading by the Operational Creditor that these amounts had been paid through RTGS Bank transfer. The Tribunal concluded that the dispute did not truly exist in fact and was spurious, applying the principle laid by the Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. 4. Jurisdiction and Power of the Tribunal to Review its Own Orders: The Tribunal emphasized that it had no inherent power to review its own Order unless authorized by a statute. The Tribunal cited the decision in 'Fernandes V/s. Ranga Nayakulu' and other relevant case laws to support this position. The Tribunal noted that the power to review is not an inherent power and cannot be exercised unless conferred specifically or by necessary implications. 5. Applicability of Rule 11 of NCLAT Rules and Inherent Powers: The Review Applicant contended that Rule 11 of the NCLAT Rules, 2016, which speaks of 'inherent powers,' was applicable. The Tribunal clarified that Rule 11 could only be exercised to enhance the cause of justice or prevent abuse of process. The Tribunal held that the power of review has to be granted by statute and cannot be exercised unless conferred specifically or by necessary implications. 6. Scope of Review under Section 420(2) of the Companies Act, 2013: The Tribunal referred to Section 420(2) of the Companies Act, 2013, which allows rectifying any mistake apparent from the record within two years from the date of the order. The Tribunal emphasized that the error must be a 'patent error' which is 'manifest' and 'self-evident.' The Tribunal found no substantial grounds warranting interference in its limited jurisdiction drawn from Section 420 of the Companies Act, 2013. Conclusion: The Tribunal concluded that there was no 'mistake apparent from the record' and that the Applicant could not be permitted to seek re-hearing of the Appeal in regard to any finding, as it would amount to sitting in an Appeal in disguise. The Review Application was dismissed as impermissible in Law, with no order as to costs.
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