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TMI Blog2023 (7) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... Anr. [ 2021 (10) TMI 1039 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] . This Tribunal held that in the absence of any power of review or recall, order of this Appellate Tribunal or the Adjudicating Authority cannot be reviewed or recalled. Thus, it is clear that although this Tribunal dealt with both the concepts of review and recall but distinction between review and recall has not been noticed. There is no dispute to the preposition that no power of review is vested in this Tribunal but power to recall judgment can very well be exercised under Rule 11 in an appropriate case - Recall can be asked only as procedural infirmity like order passed without necessary party/service to the necessary party or affected party not being heard by the Court. Thus, it is felt appropriate that the issue which has arisen in the present application need to be referred to a larger bench to decide following questions: I. Whether this Tribunal not being vested with any power to review the judgment can entertain an application for recall of judgment on sufficient grounds? II. Whether judgment of this Tribunal in Agarwal Coal Corporation Private Limited Vs Sun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the CoC with majority voting share of 70.07% on 11.01.2020. (iv) The Resolution Professional filed application for approval being I.A. No. 255/2020 and I.A. No. 222/2020 was also filed by the Union Bank of India. The Adjudicating Authority by order dated 09.07.2020 allowed the I.A. filed by the Resolution Professional and dismissed I.A. filed by the Union Bank of India. (v) Union Bank of India filed Company Appeal (AT) (Ins.) No. 729/2020 under Section 61 of the Code before this Appellate Tribunal assailing the order dated 09.07.2020. In the Company Appeal (AT) (Ins.) No. 729/2020, the Appellant- Union Bank of India has impleaded following as Respondents: MEMORANDUM OF PARTIES Union Bank of India (Erstwhile Corporation Bank) Stressed Assets Management Vertical Overseas Branch M-93 Connaught Place New Delhi-110001 Appellant VERSUS 1. Mr. Dinkar T. Venkatasubramanian Resolution Professional of Amtek Auto Limited EY Restructuring LLP Golf View Corporate Tower B Sector-42, Gurugram, Haryana Respondent No.1 2. DVI PE (Mauritius) Ltd. A company under the laws of the Republic of Mauritius ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal vide order dated 02.09.2022. While holding that there is no provision for review in the Code, this Tribunal made following observation in Para 10: 10. We are one with the argument raised by Counsel for the Respondent in this regard and thus, it is hereby held that no review application is maintainable before this Tribunal as there is no provision for review in the Code. However, the Appellant, if so advised, may take recourse to its other remedy in accordance with law in case it is still aggrieved against the order dated 27.01.2022 or a part of it. (ix) After the aforesaid order of this Tribunal refusing to entertain the Review Application, the present Application seeking recall of judgment dated 27.01.2020 has been filed. In the present application following prayers have been made. PRAYER In the light of aforesaid facts and circumstances it is humbly prayed that this Hon ble Appellate Tribunal may graciously be pleased to: (a) Allow the present application and recall the order dated 27.01.2022 passed by this Appellate in Company Appeal (AT) (Ins) No. 729/2020) (b) Direct ad interim stay of the operation of the order dated 27.01.2022 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Applicant. Rule 11 cannot be invoked for passing an order which is not provided for in the I B Code. There being no provision for review in the I B Code, the present Recall Application which is review in disguise cannot be entertained. 5. Learned counsel for the Respondent No.2 refuting the submissions of learned counsel for the Applicant submits that the Recall Application is not entertainable, Review Application filed by the Applicant already being dismissed by this Tribunal on 02.09.2022. Learned counsel for the Respondent No.2 has relied on two judgments of three member bench of this Tribunal being judgment dated 25.10.2021 passed in I.A. No. 265 of 2020 in Company Appeal (AT) (Ins.) No. 412 of 2019, Agarwal Coal Corporation Private Limited Vs Sun Paper Mill Limited Anr. , where this Tribunal has rejected a similar application filed for recall of judgment of this Tribunal. Another judgment relied by learned counsel for Respondent is judgment of this Tribunal in I.A. No. 3303/2022 in Company Appeal (AT) (Ins.) No. 359 of 2020, Rajendra Mulchand Varma Ors VS K.L.J Resources Ltd Anr., decided on 11.10.2022 , where this Tribunal has held that there is no power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r judgment of Hon ble Supreme Court dated 16.02.1984. Learned counsel for the Applicant has relied on the opinion of Venkatachaliah, J., who in paras 159, 160 and 161 laid down following: 159. But in certain cases, motions to set aside Judgments are permitted where, for instance a judgment was rendered in ignorance of the fact that a necessary party had not been served at all, and was wrongly shown as served or in ignorance of the fact that a necessary party had died, and the estate was not represented. Again, a judgment obtained by fraud could be subject to an action for setting it aside. Where such a judgment obtained by fraud tended to prejudice a non party, as in the case of judgments in-rem such as for divorce, or jactitation or probate etc. even a person, not eonomine a party to the proceedings, could seek a setting-aside of the judgment. 160. Where a party has had no notice and decree is made against him, he can approach the court for setting-aside the decision. In such a case the party is said to become entitled to relief exdebito justitiae, on proof of the fact that there was no service. This is a class of cases where there is no trial at all and the judgment is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deb Ors. (Supra), the Hon ble Supreme Court has dealt with poser to recall. The Hon ble Supreme Court held in the said case that power of recall cannot have been exercised and order of the Collector could be sustained only if supportable by the power to recall. In Paras 5, 6, 7 and 8 following has been laid down: 5. The only provision for review in the Act is to be found in Section 38-A whereunder a review may be sought for within one year from the date of the decision or order but only on the ground that there has been a clerical or arithmetical mistake in the course of any proceedings in the Act. It was also conceded by the learned counsel for the appellants that the proceedings initiated by the appellants were certainly not under Section 38A. It was also conceded at the bar that the subsequent action of the O.E.A. Collector could be sustained only if supportable by the power to recall. 6. What is a power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian Bank Vs. M/s Satyam Fibres India Pvt. Ltd.1 Vide para 23, this Court has held that the courts have inherent power to recall and set aside an order (i) obtai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence. 13. The above judgment of the Hon ble Supreme Court clearly laid down that when a judgment is rendered in ignorance of the fact that a necessary party had not been served at all or heard, the power to recall can be used. 14. Now we need to notice the two judgments relied by learned counsel for the Respondent in support of his submission which is judgment of Tribunal in Coordinate Bench in the case of Agarwal Coal Corporation Private Limited Vs Sun Paper Mill Limited Anr. (Supra), decided on 16.10.2019. In the above case, an application was filed under the inherent powers of this Tribunal. Following was noted in Para 1 of the judgment: The Applicant/Appellant has preferred the instant I.A. No.265/ 2019 in Comp. App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Pvt Ltd V Sun Paper Ltd Anr) passed by this Appellate Tribunal dismissing the Appeal, the Applicant/Appellant has not preferred an Appeal to the Hon ble Supreme Court of India as per Section 62 of the I B Code, 2016. Therefore, it is crystalline and clear that the judgment dated 16.10.2019 passed by this Tribunal in Comp. Appl. (AT)(Ins) No.412/2019 between the parties inter se has become conclusive , final and binding . 17. This Tribunal further held that although the application is styled as recall application, it is application praying for review. In Paras 30, 31 and 32 following was held: 30. A mere reading of the contents of IA No.265/2021 in Comp App. (AT)(Ins) 412/2019 indicates latently and patently that although in the preamble it is mentioned as Recall Application yet it is only an Application praying for Review of the Order dated 16.10.2019 passed in Comp App (AT)(Ins) No.412/2019 by this Tribunal, in stricto sense of the term. 31. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovide inherent powers . The same judgment held that appropriate course of action open to the applicant is to approach the Hon ble Supreme Court under section 62 against the said judgment, if the Applicant so desires. 11. The CPC has specific provision regarding inherent powers and hence, we are of the opinion that the above stated ratio shall apply in the present matter, insofar as it relates to a wrong that may be there in a final order. 12. The Learned Counsel for Applicant has cited judgment of Hon ble Supreme Court in the matter of Rama Narang v. Ramesh Narang (supra) and judgment of the Bombay High Court in the matter of Nirmal Urban Co-operative Bank Ltd. v. Mamta Keneddy Naidu (supra) where the fact that merely because an order or decree is executable, would not take away the court s jurisdiction to deal with a matter under the Act provided the court is satisfied that the violation of the order or decree is such, that if proved, it would warrant punishment. These citations given by the Learned Counsel for Applicant will be of relevance if we are considering the application IA 3303/2022 on merits. In the present instance, we are of the view that this tribunal is ..... 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