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TMI Blog2023 (10) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.2023 to the extent they relate to Company Appeal (AT) No.87/2020. 2. It is submitted by the Learned Sr. Counsel, Dr. UK Chaudhary that the Appellants/Applicants had filed two Company Appeals before this Tribunal against two different Impugned Orders, details of which are as hereunder: "(a) Order dated June 5, 2020 passed by the Hon'ble NCLT, Kochi Bench in I.A. No. 64/KOB/2020 filed by the Respondents herein in Company Petition No. 02/KOB/2020 under Rule 11 of the NCLT Rules, 2016 [impugned under the captioned Company Appeal (AT) No.87 of 2020]; and (b) Order dated September 15, 2020 passed by the Hon'ble NCLT, Kochi Bench in I.A. No. 44/KOB/2020 filed by the Appellants/Applicants herein in Company Petition No. 02/KOB/2020 under Section 8 of the Arbitration and Conciliation Act, 1996 [impugned under the Company. Appeal (AT) No. 204 of 2020]." 3. It is submitted that both the Company Appeals were initially listed and heard separately and thereafter vide Order dated 19.01.2021, this Tribunal had directed to list both the Company Appeals together and both the Appeals were being listed together though the Judgements and Impugned Orders in both the Company Appeals were diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant. 5. It is further submitted by the Learned Counsel that an interim Order dated 14.07.2020 was passed by this Tribunal in favour of the Applicant staying the operation of the Impugned Order dated 05.06.2020 in Company Appeal (AT) No.87/2020 after appreciating the facts and circumstances of the matter on hand and thereafter without giving any opportunity for hearing the Company Appeal (AT) No.87/2020 was reserved and the Order was pronounced. Therefore, in the interest of justice, the Applicant seek for the recall of the Order and Judgement dated 31.07.2023 and 19.07.2023 passed by this Tribunal in Company Appeal (AT) No.87/2020. Respondent's Submissions: 6. As against this submission, Learned Sr. Counsel Mr. Amit Sibbal strongly resisted the recall of the Orders dated 19.07.2023 and 31.07.2023 passed by this Tribunal on the ground that the extent Appeal was listed for hearing more than 10 times, the Appellant had chosen to argue only the Appeal bearing Company Appeal (AT) No.204/2020, their approach being with respect to the extant Appeal was that if their Section 8 Appeal was allowed and the disputes between the parties were referred to were arbitrable, consequently, the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng' on 09.02.2022. * On 05.08.2022 this Tribunal had recorded that arguments by the Appellant were concluded and noted to 'list these appeals 'For Hearing' on 12th October 2022 at 2:00pm for reply arguments on behalf of the Respondents'. Despite such a clear indication that the Tribunal is considering arguments in both these Appeals as concluded on behalf of the Appellant, the Appellants raised no objection and accepted the position. * On 24.11.2022 this Tribunal passed an order that 'heard Mr. Jayant Mehta, Sr. Advocate assisted by Mr. Manu Nair Advocate appears on behalf of the Respondents in both the matters'. After recording the request of adjournment by the Appellant on account of unavailability of their Sr. Counsel, the Tribunal records 'with consent of the parties, list these Appeals 'For Hearing' on 14th December 2022. Once again, no objection was raised by the Appellant and thereby, this position was accepted. * On 17.01.2023 this Tribunal passed a very clear order, while listing both Appeals for hearing on another date at the request of the Appellant, this Tribunal records that 'it is made clear that on that day the Ld. Counsel for the Appellant may argue the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant and Respondents are present. From the perusal of the order dated 21.12.2022 it appears that the arguments on behalf of the Appellant is concluded. -2- List these Appeals 'For Hearing' on 12th October, 2022 at 2:00 PM for reply arguments on behalf of the Respondents." (Emphasis Supplied) 10. Even in this Order, the Appeals were posted for 'hearing' on 12.10.2022 and for reply arguments on behalf of Respondents. Subsequently, in the Order dated 24.11.2022, this Tribunal had recorded that the Respondent arguments were heard in 'both the matters' and with the consent of the parties, the Appeals were listed for hearing on 14.12.2022. Once again, on 17.01.2023, both the Appeals were taken up together and were proceeded for hearing for 22.02.2023 at 2:00 PM. Subsequently, though the matter was reserved for Orders on 24.02.2023, there was no objection raised by the Applicants herein that their arguments in Company Appeal (AT) No.87/2020 were not heard. The Order dated 23.03.2023, which is subsequent to the Hon'ble Supreme Court's Order passed in SLP (C) No. 3515/2023 is reproduced as hereunder: "1. Both these Appeals were heard at length and judgment was reserved on 24.02.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inked and heard separately or that they were not heard at all. 12. It is the main contention of the Learned Sr. Counsel, Dr. UK Chaudhary that on 24.05.2023, I.A. No.2178/2023 filed in Company Appeal (AT) No.204/2020 with a prayer to pronounce the Judgement was only in that Appeal which was reserved on 24.02.2023, in which matter the Order of the Hon'ble Supreme Court was brought on record. At this juncture, it is relevant to reproduce the Order dated 19.07.2023 on which date, both the Appeals were heard and reserved for Judgement: 1. From the perusal of the order dated 24.02.2023 it appears that both these Appeals i.e. Company Appeal (AT) Nos. 87 of 2020 and 204 of 2020 were heard at length and judgment was reserved and further parties were directed to file their 'Additional Written Submissions' not exceeding three pages along with relevant case laws within a week. In the meanwhile, Learned Counsel for the Appellants have filed the 'Supplementary Additional Written Submissions' in which he has brough on record the Order of Hon'ble Supreme Court passed in "Special Leave to Appeal (c) No. 3515/2023, Ajit Nair v. Pullikkal Veetil Abdul Wahab & Ors., dated 28.02.2023". Therefore, v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Applicants either on 21.12.2021, 09.02.2022, 05.08.2022, 24.11.2022, 14.12.2022, 17.01.2023 and 'specifically on 24.02.2023, when initially both the Orders were reserved'. It is relevant to state here that on 23.03.2023 it was recorded by this Tribunal that both these Appeals were heard at length and Judgement was reserved. Even at this juncture, the Appellant had taken no steps to mention that they were not heard or that this Tribunal had wrongly recorded that both these matters were heard and Judgement was reserved. Company Appeal (AT) No.204/2020 was argued elaborately and it is not the case of the Applicants that they were not heard at all. It is stated in para 10 of their own recall Application that on 19.07.2023 this Appellant had conducted a short Virtual Hearing and the matter was reserved for Judgement. In para seven of the recall Application, it is stated that 'it is the case of both the parties that Company Appeal (AT) No.87/2020 has not been argued before this Hon'ble Appellate Tribunal'. Learned Counsel for the Respondents had vehemently denied this contention and submitted that it was not their case at all. 14. This Tribunal is of the earnest view that even o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 130), this Court has noticed motions to set aside judgments being permitted where (i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented, (ii) a judgment was obtained by fraud, (iii) a party has had no notice and a decree was made against him and such party approaches the Court for setting aside the decision ex debito justitiae on proof of the fact that there was no service. 7. In Corpus Juris Secundum (Vol. XIX) under the Chapter "Judgment - Opening and Vacating" (paras. 265 to 284 at pages 487-510) the law on the subject has been stated. The grounds on which the courts may open or vacate their judgments are generally matters which render the judgment void or which are specified in statutes authorising such actions. Invalidity of the judgment of such nature as to render it void is a valid ground for vacating it at least if the invalidity is apparent on the face of the record. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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