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TMI Blog2022 (6) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... be open to correct the conclusion if the same is not compatible with the finding recorded on the issues raised. In exercise of jurisdiction of this Tribunal under Rule 11 of the NCLAT Rules, present is a fit case where judgment dated 06.05.2022 needs correction and clarification - impugned order is set aside - application allowed. - I.A. No. 1467 of 2022 IN Company Appeal (AT) (Insolvency) No. 389 of 2021 - - - Dated:- 30-5-2022 - [Justice Ashok Bhushan] Chairperson , [Dr. Alok Srivastava] Member (Technical) And [Shreesha Merla] Member (Technical) For the Appellant : Shri Abhijeet Sinha, Mr. Aditya Shukla, Mr. Prakshal Jain, Ms. Angelika Awasthi and Ms. Shivani Rawat, Advocates For the Respondent : Mr. Dhiraj Kumar Totala, Ms. Tanya Chib, Ms. Trisha Sarkar and Mr. Rohan Rajadhyaksha, Advocates for RP JUDGMENT ASHOK BHUSHAN, J. This Application by the Appellant/Applicant has been filed praying for correction and clarification in the judgment dated 06.05.2022 by which judgment Company Appeal (AT) (Ins.) No. 389 of 2021 has been finally disposed of by this Tribunal. 2. The Appeal was filed by the Appellant challenging the order dated 18.03.2021 passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al directed that no monthly fees shall be payable to the Appellant during the CIRP period. Whereas under the Resolution Plan, there was specific clause (g) that if the CIRP costs exceeds the current estimates, the excess amount as per the actual would be borne by the Successful Resolution Applicant subject to a maximum Rs.475 Crores and the above clause of the Resolution Plan ought to have brought before this Tribunal at the time of hearing. Ultimate direction could have been in accordance with the findings recorded by this Tribunal that Appellant was entitled for CIRP costs. It is submitted that the order needs correction and clarification to that effect. 4. Learned Counsel for the Resolution Professional refuting the submissions of the Learned Counsel for the Appellant submits that the present Application is nothing but a Review Application is disguise. The Appellant seeks review of the finding in the impugned judgment dated 06.05.2022 whereas this Tribunal does not have any jurisdiction to review any judgment. It is submitted that the statement made by Counsel for the Respondent No.1 at the time of hearing that Resolution Plan does not contemplate payment of any CIRP costs to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts. The Adjudicating Authority erroneously relying on Clause 21.3 alone has justified the continuance of occupation of the Respondent in the premises. The Adjudicating Authority directed for refund of security without any direction to the Respondent to handover the possession of the premises. The premises which was in occupation of the Corporate Debtor is a commercial premises and the Appellant have been deprived for the use of the premises for long period without any justifiable reason. 16. We have been informed by the Counsel for the parties at Bar that the Resolution Plan with regard to Corporate Debtor has been approved by the Adjudicating Authority by order dated 22.06.2021. By approval of the Resolution Plan, the CIRP period has come to an end and after 21.06.2021 still the premises are in occupation of the monitoring professional. It is not the case of the Respondent that any amount towards the license or damages have been paid or determined. On a pointed query, Learned Counsel for the Respondent submitted that no amount towards any payment to the leave and license fees of the premises have been contemplated in the Resolution Plan. Thus, Resolution Plan does not deal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is further submitted that if the CIRP cost exceeds the current estimates, the excess amount as per actuals would be borne by the SRA subject to a maximum of Rs.475 Crores. Consequently, the payments towards Assenting FCs would get proportionately reduced. h. The Resolution Plan provides that the payment of CIRP cost in full shall have precedence over payment to any other Creditors, in terms of section 30(2)(a) of the Code. 9. The Resolution Plan thus, clearly contemplated that if the CIRP cost exceeds the current estimates, the excess amount as per actuals would be borne by the Successful Resolution Applicant subject to a maximum of Rs.475 Crores. Thus, payment of the CIRP costs which was not included in the estimates under the Resolution Plan was also contemplated upto Rs. 475 Crores. Unfortunately, at the time of hearing of the Appeal, the aforesaid clauses (g) and (h) of the Resolution Plan were not brought into the notice of this Tribunal. 10. Now we may notice the objection raised by the Counsel for the Respondent No.1 that this Application of review of the judgment in guise of Application under Rule 11 of the NCLAT Rules, 2016. The prayers of the Applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n absence of Rule 11 this Appellate Tribunal, being essentially a judicial forum determining and deciding rights of parties concerned and granting appropriate relief, has no limitations in exercise of its powers to meet ends of justice or prevent abuse of its process. Such Powers being inherent in the constitution of the Appellate Tribunal, Rule 11 can merely be said to be declaring the same to avoid ambiguity and confusion. Having said that, we are of the firm view that the Rule cannot be invoked to revisit the findings retuned as regards the assertion of facts and pleas raised in the appeal and it is not open to reexamine 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 regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent No.1 that the statement made by him as recorded in paragraph 16 of the judgment is the correct statement. The Court being not aware of clauses (g) and (h) of the Resolution Plan nor the said clauses could be brought before the Court. Ultimate conclusions recorded by the Court were not in consonance with the findings in paragraph 16 that the Appellant was entitled for determination was finding to the following effect:- 16. .the Appellant was entitled for determination that monthly fees payable to the Appellant under the Service Agreement should have been treated as part of the CIRP costs. 15. We, thus, are of the view that in exercise of jurisdiction of this Tribunal under Rule 11 of the NCLAT Rules, present is a fit case where judgment dated 06.05.2022 needs correction and clarification. The last line of the paragraph 16 of the judgment containing direction is rectified and following is treated as rectified direction:- (i) The impugned order dated 18.03.2021 is set aside. (ii) The Respondent is directed to handover the vacant possession of the premises within 15 days from today. (iii) The Appellant is at liberty to take appropriate steps for its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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