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TMI Blog2022 (5) TMI 1446X X X X Extracts X X X X X X X X Extracts X X X X ..... s which have not attained the finality. Petition dismissed. - C.P (IB) NO. 1340 OF 2018 I.A (IB) NO. 1340 OF 2020 - - - Dated:- 6-5-2022 - Harish Chander Suri Member (Technical) and Rohit Kapoor Member (Judicial) ORDER Per Rohit Kapoor, Member (Judicial) 1. The Court convened via video conference today. 2. The instant IA has been filed under section 11 of NCLT rules seeking recalling of order dated 11 March, 2019 passed by this Adjudicating Authority in CP number 1340 of 2018 for initiation of Corporate Insolvency Resolution Process, U/S 7 of Insolvency and Bankruptcy Code 2016. 3. Applicant seeks to recall the order dated 11 March, 2019 passed by this Tribunal on the grounds summarised herein after in the form of submissions of applicant. Submissions by/on behalf of Applicants (Shareholders). 4. Re: There is lack of jurisdiction in terms of law declared by the Hon ble Supreme Court in Anuj Jain s case under Article-141 of the Constitution of India. 5. It is the uncontroverted position that the present liquidation proceedings have been set in motion by an entity (JPSL) which according to the judgment rendered in Anuj Jain v Axis Bank ( Anuj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to jurisdiction is merged in the Appellate order, the question of jurisdiction was never final and remains inconclusive. [Kindly see Carona Limited v. Parvathy Swaminathan (2007) 8 SCC 559- 569(para 28) ( Carona case )], where in the Hon ble Supreme Court of India after quoting Halsbury s Laws, stated that question of jurisdiction is never conclusive: - Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described a preliminary to,or collateral to the merits of, theissue. If,at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive. [Emphasis is supplied] 10. The contention put forth by JSPL stating the orders passed by the Hon ble NCLAT and the Hon ble Supreme Court in the present matter prevents this Tribunal to allow the present application, is totally misconceived and baseless. Since the original order passed by this Tribunal was itself a nullity, there is no question of such null order merging with any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings would be null and void. 15. Re: Doctrine of prospective ruling not applicable .It is settled position that law is always retrospective in nature unless specifically made prospective by Hon ble Supreme Court M A Murthy v. State of Karnataka (2003) 7 SCC 517 (para8) ( MAMurthy case ). The prospective overruling can only be made by the Hon ble Supreme Court of India (C Golaknath v. State of Punjab 1967 SCR (2) 762). Anuj Jain s case has not declared law prospectively. Law declared by the Court in Anuj Jain s case is deemed to be so since it since ption as every judgment of the Hon ble Supreme Court is to be applicable retrospectively [CIT v. Saurashtra Kutch Stock Exchange (2008) 14 SCC 171 para 35]. Blacks to nian version of retrospective application of Anuj Jain s case shall apply to all pending matters including the present one. (Kindly see MA Murthy case). JSPL has also not relied upon doctrine of prospective overruling during course of arguments. Thus, ratio in Anuj Jain would apply retrospectively. 16. The doctrine of prospective overruling is in apposite and inapplicable. 17. The argument presented by JSPL based on the Explanation to Order XLVII of the CPC, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of jurisdiction is one of them. Relevant extract is reproduced herein below(para-8):- 8. In our opinion a tribunal ora court may recall an order earlier madefit (i) The proceedings culminating into an order suffer from inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) There exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party, or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. 23. Re: No water has flown since initiation of CIRP proceedings - No irreversible change has taken place with respect to the corporate debtor since the initiation of CIRP proceedings in March, 2019 till date. Thee entity which was running the present unit of Bharat NRE prior to initiation of CIRP proceedings continues to do so even now and Bharat NRE continues to be a going concern. There are no sales carried out so far in the liquidation. In short, no water has flown in the last two and half years. Hence, recalling of the order dated 11.03.2019 and 11.12.2019 on the grounds of lack of jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited Anr.Company Appeal (AT)(Insol.) No.255 of 2019. (b) Suraksha Asset Reconstruction Limited Versus Jindal Steel Power Limited Anr.; Company Appeal (AT)(Insol.) No.322 of 2019. 28. The above-mentioned appeals were heard together by the Hon ble NCLAT, wherein, vide common order dated 23.07.2019, the said appeals were dismissed. 2. 29. Thereafter, following Civil Appeals were filed before the Hon ble Supreme Court: (a) Arun Kumar Jagatramka Versus Jindal Steel Power Limited Anr. Civil Appeal No.6015 of 2019. (b) Suraksha Asset Reconstruction Limited Versus Jindal Steel Power Limited Anr.Civil Appeal No.7027 of 2019. The Civil Appeal No.6015 of 2019 was dismissed by the Hon ble Supreme Court vide order dated 16.08.2019 whereas, the Civil Appeal No.7027 of 2019 was dismissed vide order dated 16.09.2019 thereby reaffirming the order dated 11.03.2019 passed by this Hon ble Tribunal. 30. This IA is barred in view of Doctrine of merger in view of the fact that the admission order dated 11.03.2019 passed by this Hon ble Adjudicating Authority has been firstly upheld by the Hon ble NCLAT and then further upheld by the Hon ble Supreme Court, the said order dated 11.03. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally or by necessary implications. 36. Judgments cited by applicant are distinguishable both on law and on facts. 37. Neither the judgment in Anuj Jain, Interim Resolution Professional for Jaypee Infratech Limited vs. Axis Bank Limited and Others , (2020) 8 SCC 401, assailed by the Applicants herein nor the judgment in Phoenix ARC Pvt. Ltd. vs. Ketulbhai Ramubhai Patel , (2021) 2 SCC 799 passed by Hon ble Supreme Court is applicable in the instant case. The factual matrix of the present case is distinguishable from the above-mentioned judgments so much so that the reasoning given by the Apex Court is also not applicable on the factual matrix of the case at hand. 38. That the Hon ble Appellate Tribunal and this Hon ble Tribunal in the present case have dealt at length with the provisions of Section 5(8) (f) and (i) while admitting the claim of the Respondent No.2 as to be Financial Creditor. This Hon ble Tribunal in its order dated 11.03.2019 categorically held that the amount claimed by the Respondent No.2 basis the award dated 16.08.2016 falls under the category of a Financial Debt . Thereafter, even the Hon ble NCLAT has taken into its consideration the said aspect to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. We have heard the Ld. Counsel for the parties, perused the record and case law as on the issue The primary issue that arises for consideration is: Whether a different interpretation of nature Financial Debt in subsequent judgement (Anuj Jain v Axis Bank) by Hon ble Supreme Court delivered on 26.02.2020 will apply to different proceedings between different parties, wherein a contrary view was taken on the nature of Financial Debt by NCLT prior to Anuj Jains s case and upheld by NCLAT and SLP thereto dismissed by Hon be Supreme Court on 16.08.2019 . We are of the view: 45. Where the rights of a party have been considered and declared, then the said proceedings cannot be reopened on the ground that a contrary view has been taken subsequently by the Hon ble Supreme Court in different proceeding and between different parties? 46. We seek to rely on the Hon ble Supreme Court in the case of Union of India Vs. Madras Telephone SC ST Social Welfare Assn. reported in (2006) 8 SCC 662 has held as under: 21. Having regard to the above observations and clarification we have no doubt that such of the applicants whose claim to seniority and consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 (para 18) [2019 SCC OnLine MP 2265] However, where the rights of a party have been considered and declared, then the said proceedings cannot be reopened on the ground that the judgment on the basis of which, the rights were declared, has been overruled. The Supreme Court in the case of Union of India Vs. Madras Telephone SC ST Social Welfare Assn. reported in (2006) 8 SCC 662 has held as under : 21. Having regard to the above observations and clarification we have no doubt that such of the applicants whose claim to seniority and consequent promotion on the basis of the principles laid down in the Allahabad High Court's judgment in Parmanand Lal case have been upheld or recognised by the Court or the Tribunal by judgment and order which have attained finality will not be adversely affected by the contrary view now taken in the judgment in Madras Telephones. Since the rights of such applicants were determined in a duly constituted proceeding, which determination has attained finality, a subsequent judgment of a court or tribunal taking a contrary view will not adversely affect the applicants in whose cases the orders have attained finality. We order accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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