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TMI Blog2021 (10) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... Recall as opined by this Tribunal - It cannot be gainsaid that there is no express provision for Review under the National Company Law Appellate Tribunal Rules, 2016. Moreover, the Applicant/Appellant cannot fall back upon Rule 11 of the NCLAT Rules, 2016 which provides for inherent powers . In fact, Rule 11 of NCLAT Rules, 2016 is not a substantive Rule which showers any power or jurisdiction upon the Tribunal . Undoubtedly, the Tribunal has no power to perform an act which is prohibited by Law. This Tribunal taking note of the prime fact that the Applicant/Appellant has sought for recalling the judgement passed by this Appellate Tribunal is impermissible in Law - application dismissed. - I.A. No.265/2019 in Company Appeal (AT)(Ins.) No.412/2019 - - - Dated:- 25-10-2021 - [Justice M. Venugopal] Acting Chairperson , [Mr. V.P. Singh] Member (Technical) And [Dr. Ashok Kumar Mishra] Member (Technical) For the Appellant : Mr.V.N. Dubey, Mr. Amit Dubey and Mr Rohit Dubey, Advocates and Mr. Alam Khan, PCS For the Respondent : Mr. E. Om Prakash, Sr. Advocate with Ms Madhusmita Bora and Mr. G. Ashokpathy, Advocates for R1. Ms Pratishtha Vij, Advocate for R2( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndependent Chartered Accountant had not examined the validity of the aforesaid three Debit Notes and the purported letter dated 06.07.2013. 4. The stand of the Applicant/Appellant is that in order to play Fraud for securing favourable order had submitted the cooked up, frivolous Debit Notes . As a matter of fact, the Applicant at all forum had explained the fraud played by the 1st Respondent (including to the 2nd Respondent). But the 2 nd Respondent had not listened to the submissions of the Applicant , but accepted the erroneous Report of the Chartered Accountant . 5. The Learned Counsel for the Applicant points out that the 1st Respondent was engaged in manipulation of Books of Accounts by means of fraudulent practices. Apart from this, the alleged custom duty obligation based on which alleged Debit Notes were purportedly issued was never reported even as the contingent liability in the Audited Financial Accounts of the 1st Respondent furnished to the Ministry of Corporate Affairs for the year 2013-2014 or even thereafter till the last Annual Report available on MCA Portal . 6. It is represented on behalf of the Applicant that the independent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent/Company had addressed his resignation letter dated 30.04.2018 to the Suspended Board of Directors of the 1st Respondent/Company, and pursuant to that, the Suspended Board of Directors had conducted an illegal Board Meeting dated 30.04.2018 had considered and allowed the same. Moreover, Mr. Chandrahas Moolya, Member of the Suspended Board of Directors had signed the appointment letter dated 01.06.2018, for the appointment of Ms Kalpana Jhalani as Company Secretary of the 1st Respondent/Company in pursuance to the illegal Board Resolution passed by the Suspended Board of Directors in their illegal Meeting held on 28.05.2018. 11. The Learned Counsel for the Applicant proceeds to point out that Ms. Kalpana Jhalani had addressed the resignation letter dated 30.08.2018 to the Suspended Board of Directors of the 1st Respondent/Company and pursuant to this, the Suspended Board of Directors held an illegal Board Meeting on 30.08.2018, considered and allowed the same. Apart from that, Mr. Vaithyalingam Anbalagan, Member, of the Suspended Board of Directors of 1st Respondent/Company filed Form No.DIR-11 at the MCA Portal on 03.08.2018 together with his resignation letter dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the proceedings, the Corporate Debtor was maintained as a going concern and the acts as a going concern are alleged as fraudulent by way of re-agitation. 17. The Learned Counsel for the 1st Respondent refers to the decision of the Hon ble Supreme Court in K.N. Rajkumar Vs V. Nagarajan and Ors (15.09.2021) reported in MANU/SC/0648/2021 wherein the applicability of the Doctrine of Functus Officio to the IBC proceedings was upheld. 18. The Learned Counsel for the 1st Respondent points out that after the claim of the Applicant/Appellant was admitted to an extent of ₹ 2173/-, MA No.677/2018 and Comp/1/2019 in CP/616/IB/CB/2018 (under Section 425 of the Companies Act, 2013) were filed. In fact, Comp/1/2019 was preferred by the Applicant as regards the purported fraud/contempt which was dismissed by the Adjudicating Authority on 14.3.2019, which had become final. 19. The Learned Counsel for the 1st Respondent submits that IA No. 265/2021 in Comp App (AT)((Ins) No.412/2019 filed by the Applicant/Appellant is not maintainable either in Law or on Facts and that the Applicant/Appellant falls back upon the inherent powers of the Appellate Tribunal . Second R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of the term Review is the act of looking, offer something again with a view to correction or improvement as the case may be. It must be borne in mind that the Power of Review is a creature of Statute and it is not an inherent power as per decision of the Hon ble Supreme Court in Lily Thomas V. Union of India reported in AIR 2000 Supreme Court Page 1650 at Special Page 1652. In fact, Review is not an Appeal in disguise. In Review re-appraisal of materials is impermissible as per decision in Jiura Oraon V. The State of Jharkhand, 2014 (3)JCR 100 (Jhar). 26. Resting upon Review the Tribunal would not rehear the parties on Facts and Law. No wonder, a re-appraisal of evidence on record for unearthing an error will amount to an exercise of Appellate Jurisdiction which is not permitted in Law. A Review is not to be sought for a Fresh Hearing or Arguments or Correction of an erroneous view taken earlier. To put it precisely, the contentions raised and determined in main proceedings are not to be reopened/re-agitated under the garb of Review Petition as per decision Sharada Bai V. Padamlal, 2003 All India High Court Cases 1756 (1757) (Andhra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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