9911796707
TMI Blog2022 (6) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Authority (National Company Law Tribunal), Mumbai Bench, Court No.I to which order I.A No.453/MB/2020 filed by the Appellant seeking a declaration that monthly fees payable to the Applicant under the Service Agreement for the relevant period shall form part of the CIRP costs in terms of the IBC. Further direction was sought directing the Liquidator to treat any claims of the Applicant relating to monthly fees for the relevant period under the Service Agreements as IRP costs. The Application was disposed of by the Adjudicating Authority holding that the Applicant (Appellant) is not entitled to any payment with respect to license fee after 31.05.2019. Aggrieved by the said order, the Appeal was filed by the Appellant which after hearing the Learned Counsel for the parties has been disposed of by judgment dated 08.05.2022. This Application has been filed by the Applicant/ Appellant praying for following reliefs:- "(a) Allow the present application and correct the judgment dated 6 May 2022 passed in Company Appeal (AT) (Insolvency) No. 389 of 2021 by clarifying that since the resolution plan for the Corporate Debtor approved by the Ld. Adjudicating Authority vide Order dated 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement. There was no requirement on the part of the Respondent No.1 to tell about the provisions of the Resolution Plan contained in clause (g) on which reliance has been placed by the Learned Counsel for the Appellant. Even if two views are possible on the point involved, the same is not a good ground to review and appraise the evidence on record and finding out an error which is impermissible in law. The Applicant has sought relief in the modification in exercise of inherent jurisdiction of this Tribunal under Rule 11 of the NCLAT Rules, 2016 which jurisdiction is required to be exercised ex debito justitiae. The Applicant is attempting to expand the scope of Application of Rule 11 of the NCLAT Rules, 2016 which he cannot be allowed to do under law. Learned Counsel for the Respondent placed reliance on the judgment of this Tribunal in "Action Barter Private Limited vs. SREI Equipment Finance Limited and Ors.- 2020 SCC OnLine NCLAT 1137". Learned Counsel for the Respondent has also placed reliance on the judgments of this Tribunal in "Adish Jain vs. Sumit Bansal and Another- 2021 SCC OnLine NCLAT 52" and "Deepak Kumar Director of Sovereign Infrastructure & Developers Ltd. vs. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olution Plan having been approved with no provision for making any payment to the Appellant since the Resolution Professional never accepted the amount as CIRP costs which was also approved by the Adjudicating Authority on 18.03.2021 by the impugned order erroneously. We, thus, are of the view that no direction in this Appeal can be given for payment of leave and license fees to the Appellant during the CIRP period even though we are satisfied that 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. We, thus, dispose of this Appeal with following directions:- (i) The impugned order dated 18.03.2021 is set aside. (ii) It is held that no monthly fees shall be payable to the Appellant during the CIRP period. (iii)The Respondent is directed to handover the vacant possession of the premises within 15 days from today. (iv)The Appellant is at liberty to take appropriate steps for its claim of license fees subsequent to 22.06.2021 (end of the CIRP period). (v) After possession of the premises is handed over to the Appellant by the Respondent, the Appellant shall com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eview of the judgment. Present is not a case where the Applicant is questioning any finding recorded by this Tribunal in its judgment dated 06.05.2022 nor Applicant is praying for review of the judgment. The only limited prayer is correction / clarification of the judgment in view of the fact that before the Tribunal at the time of hearing clauses (g) and (h) of the Resolution Plan were not brought into notice under which CIRP costs even if not part of the estimates in the Resolution Plan is payable subject to a maximum of Rs.475 Crores. Had the above fact has been brought before the Tribunal at the time of hearing, Court might have issued direction in consonance with the findings of the Tribunal. There is no dispute to the proposition that this Tribunal does not have any jurisdiction to review its judgment. 11. Judgments relied by the Counsel for the Respondent in "Adish Jain vs. Sumit Bansal and Another- 2021 SCC OnLine NCLAT 52" and "Deepak Kumar Director of Sovereign Infrastructure & Developers Ltd. vs. Phoenix ARC Pvt. Ltd. & Anr- 2020 SCC OnLine NCLAT 648" lays down that there is no express provision for review in the Code. There can be no quarrel to the proposition laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Creditor and the disposal of appeal." 13. This Tribunal has clearly laid down that findings on questions of fact, how-so-ever erroneous cannot be allowed to be questioned. However, mistake which have due to oversight, inadvertence or human error can be corrected. Further it was held that it would be open to correct the conclusion if the same is not compatible with the finding recorded on the issues raised. Ultimately, the I.As were disposed of rectifying final judgment of the Tribunal, in paragraph 8 following has been held:- "8. The I.As are accordingly disposed of by re casting para 5 of the judgment of this Appellate Tribunal, which, after rectification, would read as under:- "5. The case of the Appellant is covered by the decision of the Hon'ble Supreme Court in Forech India Ltd. (supra), therefore, we hold that the Application under Section 7 of the I&B code filed by the Respondent - SERI Equipment Finance Limited is maintainable. In so far as pending winding up petition before the Hon'ble Bombay High Court is concerned, the Appellant in terms of the decision of the Hon'ble Supreme Court in Forech India Ltd (supra) may move before the Hon'ble High Court of Bombay. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
