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TMI Blog2021 (11) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hon ble Supreme Court in Patel Narshi Thakershi V. Pradyumansinghji Arjunsinghji reported in (1971) 3 SCC Page 844, at spl page 847 it is observed and held that the power of review is not an inherent power. It must be conferred by Law either specifically or by necessary implication . No wonder, the Tribunal has no inherent power to review, as per Section 114 and Order 47 of the Civil Procedure Code. Tribunal's Power - HELD THAT:- Mere glance of Section 420(2) of the Companies Act, 2013 unerringly points out that the Tribunal has power to rectify its order, if there is any mistake apparent from the record, but it has no power of review of its own order. In this regard, this Tribunal pertinently points out that Rule 154 of the National Company Law Tribunal Rules, 2016 enjoins the Tribunal to rectify its order, if there is any clerical or arithmetical mistake in the order of the Tribunal or any error therein arising out of any accidental slip or omission of its own motion or an application of any party by means of rectification. Recall power - HELD THAT:- It is significantly pointed out by this Tribunal that Hon ble Supreme Court in the decision in SRI B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al) among other things at paragraph 15 to 23 had observed the following 15. When we consider both the provisions together, it is seen that under Section 33 of the IBC, Adjudicating Authority is vested with the power to pass the liquidation order. Whereas under Section 34 of the IBC, 2016, the Adjudicating Authority is empowered to appoint the Liquidator. 16. In the light of the aforesaid provisions when we peruse the order passed by the Adjudicating Authority on 14.06.2019 , we find that the application filed by the Resolution Professional for liquidation under Section 33 of the IBC, 2016 has already been allowed. Vide that Order, the Adjudicating Authority held that The assets of the Corporate Debtor be put for liquidation as no resolution plan has been received and 270 days are also over. The matter is pending only for appointment of the RP as a liquidator as no decision has been taken by the COC in this regard. 17. We have refer to the provision for the appointment of liquidator and as per the provision, whenever the Adjudicating Authority pass an order for liquidation of the corporate debtor under Section 33, the Resolution Professional appointed for the corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as an order which deferred the matter that was for consideration i.e. confirmation of the liquidator under Section 34(4) of the IB C, 2016 only. 23. Hence, we find no force in the contention of the Applicant and no reason to give any direction to the applicant or the COC in respect of the Expression of Interest/Resolution Plan of Resolution applicant M/s Hindustan Aqua Private Ltd received by the Resolution Professional. Therefore, the prayer of the Applicant is hereby rejected. and dismissed the application. APPELLANTS SUBMISSIONS 3. Challenging the order of dismissal dated 11.06.2021 in IA No.2034/2021 filed by the Resolution Professional/2nd Respondent/Applicant passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench II), the Learned Counsel for the Appellant submits that the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench II) had exceeded its authority by reviewing its own order dated 04.07.2019 whereby and whereunder, the said Authority had failed to consider the application (i) CA 607 of 2019 (filed by the Appellants against the decision of the Respondent to wrongly categorised ineligible as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants comes out with a legal plea that the Adjudicating Authority in the impugned order had travelled beyond its purview/jurisdiction to review the order dated 04.07.2019 in CA 827/2019 and came to an incorrect conclusion that the order dated 04.07.2019 cannot be said to be a recall order of Liquidation. It is represented on behalf of the Appellants that the Adjudicating Authority does not have the power to modify an earlier order, save and except as mentioned in Section 420 of the Companies Act, 2013. 8. According to the Learned Counsel for the Appellants, as per Section 420(2) of the Companies Act, 2013, any order passed by the Tribunal can be rectified where there is any mistake apparent from the record, within two years from the date of the order and in fact, the impugned order dated 11.06.2021 IA No.2034/2021 in CP(IB)No.702(ND)/2018 passed by the Adjudicating Authority reviewing its order dated 04.07.2019 is an illegal one. APPELLANTS DECISIONS 9. The Learned Counsel for the Appellants to fortify the contentions that an Adjudicating Authority is not conferred with the power to review and varyy its own order, relies on the order dated 10.07.2019 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quidation application filed by the Respondent) in CP(IB)No.702(ND)/2018 the liquidation of the Corporate Debtor was initiated and this order of allowing the CA 731/2019 is never questioned by the Appellant or by any other individual before the Adjudicating Authority and that the said order is a conclusive and binding one. 14. Advancing his argument, the Learned Counsel for the Respondent brings it to the notice of this Tribunal that what remains is the appointment of the Liquidator and indeed, Section 33 of I B Code, 2016 deals with the initiation of liquidation but Section 34 of the Code separately provides for an appointment or replacement of the liquidator by the Adjudicating Authority upon passing of an order for Liquidation . 15. The Learned Counsel for the Respondent takes a stand that the Appellants are the former promoters of the Corporate Debtor and in CA 731/2019 (Filed by the Respondent/Liquidator) for initiation of Liquidation proceedings the Appellants were not impleaded and a liquidation order dated 14.06.2019 was passed by the Adjudicating Authority which was not an Ex- Parte one, as averred by the Appellants . Therefore, Rule 49(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 SCC OnLine SC 896 wherein at paragraph 30 it is observed as under:- 30.The dictionary meaning of the word review is the act of looking, offer something again with a view to correction or improvement . It cannot be denied that the review is the creation of a statute. In the case of Patel Narshi Thakershi Vs Praduumansinghji Arjunsinghji , (1971) 3 SCC 844, this Court has held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. 22. The Learned Counsel for the Respondent cites the decision of the Hon ble Supreme Court in Pratap Technocrafts (P) Ltd V Monitoring Committee of Reliance Infratel Ltd reported in 2021 SCC OnLine SC 569 wherein it is observed and held that :- There is no equity based jurisdiction with the NCLT under the provisions of IBC and the Adjudicating Authority as a body owing its existence to the statute, must abide by the nature and extent of its jurisdiction as defined in the statute itself. 23. The Learned Counsel for the Respondent contends that the jurisdiction of the Adjudicating Authority and the Appellate Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28. It is significantly pointed out by this Tribunal that Hon ble Supreme Court in the decision in Budhia Swain V. Gopinath reported AIR 1999 SC 2089 has prescribed the conditions for recalling an order (i) the proceedings suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent (ii) There exists fraud or collusion in obtaining the judgement (iii) There has been a mistake of the Court prejudicing a party, or (iv) a judgement rendered in ignorance of the fact that a necessary party has not been served at all or had died and his estate was not represented. DISCUSSIONS 29. It transpires from IA 2034/2021 in IB/702/(ND)/2018 (filed by the Resolution Professional/Applicant/2nd Respondent in Appeal) that an issuance of direction to the Applicant/Resolution Professional be passed as to whether the Expression of Interest / Resolution Plan of Resolution Applicant M/s Hindustan Aqua Pvt Ltd be considered by the Resolution Professional and Committee of Creditors . Further, in the event of the Adjudicating Authority directing the Resolution Professional to consider EOI/Resolution Plan of M/s Hindustan Aqua Pvt Ltd, a direction was prayed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34. On behalf of the Appellants, it is brought to the notice of this Tribunal that the Adjudicating Authority in CA No.607/2019 and CA No.183/2019 had passed an order on 26.08.2019 that the aforesaid two applications shall be reheard again as this Bench was reconstituted and notice was directed to be effected by all modes to the Members of the Committee of Creditors returnable on 19.09.2019. On 30.10.2019 the Adjudicating Authority had heard the argument in CA No.607/2019 in part and for the conclusion of argument, directed the matter to come up on 31.10.2019 at 02.30 PM. 35. On 05.11.2019 the Adjudicating Authority had passed an order in CA No.607/2019 stating that because of the constitution of the Special Bench the matter listed for argument could not be taken up and directed the listing of the matter on 22.11.2019 at 02.30 PM for hearing. 36. The Learned Counsel for the Appellants submits that the Resolution Professional is a Resolution Professional on 4.7.2019 and he is not the Liquidator on that date. 37. On 30.04.2021, the Adjudicating Authority in IA No.2034 of 2021, because of the two orders passed by the Bench on different dates on 14.06.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication filed by the Respondent) that the Appellants/Applicants were heard. As such when the said order of allowing CA No.731/2019 was passed on 14.06.2019, the same was allowed without issuing Notice on the Appellant/Applicant and this Tribunal comes to a resultant conclusion that the said order was passed by the Adjudicating Authority in an unilateral manner as an Ex parte one thereby giving a right to the Appellant/Applicant to file CA No.827/2019 to set aside the ex parte order. 41. By virtue of the order dated 04.07.2019 in CA No.827/2019 (filed by the 1st Appellant) wherein the Adjudicating Authority held that pending application will be first disposed off and then liquidation be directed and ordered Notice in CA No.731/2019 (Liquidation Application), admittedly, the same is pending as on date. When that be the fact situation and because of the Central Government declaring a Nationwide Lock Down due to Covid-19 on 25.03.2020, the matter listed on 01.04.2020 could not be taken up and that on 01.04.2021, the Respondent filed an application being IA NO. 2034/2021 in (IB)/702/(ND)/2018 in which on 30.04.2021 the Adjudicating Authority had observed that the liquidat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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