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TMI Blog2024 (3) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... ate upon and settle all the questions, which are involved in the Petition?. Power to Recall - HELD THAT:- 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 a proper remedy, in some other proceedings, such as, by way of Appeal, was available, but was not availed. Also that, the right to seek Vacation of a Judgment, may be lost by, either Waiver or Estoppel or Acquiescence. Power of Review - HELD THAT:- The Power of Review is not an Inherent Power, but it is a creation of Statute. A Review of Judgment, cannot be granted in the garb of Clarification, as per decision of Hon ble Supreme Court, reported in [ 2004 (5) TMI 606 - SUPREME COURT] . A Review Court, cannot sit in Appeal, over its own Order and rehearing of matter is impermissible in Law - A Debatable and Legal issues are not covered by the expression Sufficient Reason and as such, no Review, would lie. Also that, where, all the Pleas, urged in Review Petition, were reiteration of grounds, urged during the Hearing of Appeals, Review Petitions, were held not maintainable. Since Power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved and Necessary Party and therefore, the Order , is Void Ab Initio and Non-Est one. 4. The Petitioner points out that a Necessary Party is one, without whom, no effective order , can be made. The question is, whether the presence of a Particular Party , is necessary in order to enable the Court(s), effectively and completely, to adjudicate upon and settle all the questions, which are involved in the Petition and refers to the decisions in (i) A. Janardhana v. Union of India, reported in AIR 1983 SC 769: (1983) 3 SCC 601; (ii) State of Himachal Pradesh v. Kailash Chand Mahajan, AIR 1992 SC 1277, 1308 : 1992 Supp (2) SCC 351: and (iii) Harcharan Singh Vs. Financial Commissioner, Revenue, Punjab, Chandigarh, AIR 1977 P H 40. 5. The Petitioner submits that the New Liquidator / the 1st Respondent, had obtained the Order dated 05.01.2024 in Comp. App (AT) (CH) (INS) No. 8 / 2022, by suppressing serious issues of Fraud , Cheating and Obstruction of Liquidation Process , by the Senior Officials of IDBI Bank Limited, causing Rupees Hundreds of Crores of Loss , to the Government Bank , and hence, liable for Criminal Contempt Procedure , attracting Section 2(c) of the Contempt of Courts Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, or Ground 4: 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. and the grounds of the Petitioner are in accordance with the Full Bench decision of this Tribunal in Union Bank of India v. Dinkar T. Venkatasubramanian Ors. 11. The grievance of the Petitioner, is that no opportunity , was given to him, who being a Necessary Party and that the Adjudicating Authority / Tribunal , Chennai Bench, through an Order in IA No. 815 / 2020, had replaced the Petitioner with effect from 01.07.2022, when the Petitioner came to know on 06.07.2022 (Order being uploaded), about his removal . 12. According to the Petitioner, in the IA No. 815 / 2020, there were severe allegations made against his integrity , character and efficiency , and as such, he is to defend the same to protect his honour. 13. According to the Petitioner, the actual compensation , receivable is only Rs.12.33 Lakhs and not Rs.500 Crores, as presumed by the Tribunal , based on IDBI Bank s false pleadings. 14. Further, the Petitioner points out that he was not given a minute to defend his case, even though, he is an Affected Party as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent may take appropriate action in the matter . 12. Pursuant to the above process, a notification was issued on 14 June 2022 by the WP(C) 180 / 2022 Union Government in the Ministry of Corporate Affairs by which approval was granted for revising the tenure of two Judicial Members and six Technical Members for a period of five years or till they attain the age of 65 in consonance with the provisions of Section 413 of the Companies Act, 2013. 19. The Petitioner, before this Tribunal , takes a stand that the Order of the Hon ble Division Bench of Madras High Court in WP No 14357 / 2021 dated 06.12.2021, between CA V. Venkata Sivakumar v. Union of India, MCA, Rep. by Secretary 2 Ors., is overruled by the Adjudicating Authority / NCLT , Chennai Bench. Further, he was removed based on issues, never agitated in IA No. 815 / 2020. Apart from that, according to the Petitioner, the New Liquidator , is having no experience , selected from IBBI List of Highly Experienced Professionals (Sl No. 17). 20. The Petitioner, before this Tribunal , points out that Pothavaram Factory at Chagallu, Andhra Pradesh, prior to initiation of CIRP , was in the physical custody of the IDBI Bank (R-1), as a resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fide intention , to protect their fraudulent lending . 25. According to the Petitioner / Erstwhile Liquidator, in order to protect the Fraudulent acts of Promoters and IDBI Bank , the new Liquidator , made a mention before the Appellate Tribunal for withdrawing the Appeal , as a Frivolous one, on 04.01.2024. 26. It is represented on behalf of the Petitioner / erstwhile Liquidator that the new Liquidator / 1st Respondent (Mr. Hari Karthik), had not given any reasons for withdrawing the Comp. App (AT) (CH) (INS) No. 8 / 2022, except orally mentioning that the Appeal , is Frivolous , Suppressing the Illegal Nexus with IDBI Bank and the erstwhile Promoters . As a matter of fact, the IA No. 621 / 2022 (For Impleadment) was not heard, but closed and the Comp. App (AT) (CH) (INS) No. 8 / 2022, was Dismissed as Withdrawn on 05.01.2024, but without costs. 27. It is the version of the Petitioner that the NCLT / NCLAT was established as a Quasi-Judicial Body , for dealing with Corporate disputes, that are arising under the Companies Act , 2013. Further, NCLT / NCLAT, operates similarly to a Civil Court of Law , in the Country and is required to impartially and fairly examine each Case facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice. (See also: Union of India v. T.R. Varma, AIR 1957 SC 882; Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719; M/s. Kesoram Cotton Mills Ltd. v. Gangadhar Ors., AIR 1964 SC 708; New India Assurance Company Ltd . v . Nusli Neville Wadia and Anr., AIR 2008 SC 876; Rachpal Singh Ors. v. Gurmit Singh Ors., AIR 2009 SC 2448; Biecco Lawrie Anr. v. State of West Bengal Anr., AIR 2010 SC 142; and State of Uttar Pradesh v. Saroj Kumar Sinha, AIR 2010 SC 3131). 31. The Petitioner, refers to the decision of the Hon ble Supreme Court in the matter of A.R. Antulay V. R.S. Nayak Anr., reported in AIR 1988, 2 SCC at Page 602, wherein at Paragraph 159, it is observed as under: 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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kar V. State of West Bengal (2009) 2 SCC 703. (b) Harinagar Sugar Mills Limited V. Shyam Sundar Jhunjhunwala AIR 1961 SC 1669. (c) SREI Infrastructure Finance Limited V. Tuff Drilling Pvt. Ltd.(2018), 11 SCC 470. (d) Budhia Swain v. Gopinath Deb (1999), 4 SCC 396. (e) Indian Bank V. Satyam Fibres India Pvt. Ltd., AIR 1996, SC 2592. (f) Grindlays Bank Ltd. V. Central Government Industrial Tribunal, (1980) Supp SCC 420. (g) Agarwal Coal Corporation Pvt Ltd. V. Sun Paper Mill Ltd. (2021) SCC OnLine NCLAT 367. (h) K.L.J. Resources Limited V. Rajendra Mulchand Varma (2022) SCC On-Line NCLAT 402. (i) Union Bank of India V. Financial Creditors of M/s. Amtek Auto Limited Ors. (vide Order dated 31.07.2023 of Hon ble Supreme Court of India in Civil Appeal No. 4620 of 2023). 35. The Petitioner, therefore, prays for allowing the Review Application No. 3 / 2024 , by recalling the Order , dated 05.01.2024 in Review Application No. 3 / 2024 in Comp App (AT) (CH) (INS) No. 08 / 2022, and to expunge all the adverse remarks, made against him, by this Tribunal , relying only on the false pleadings of the 2nd Respondent / IDBI Bank , and the New Liquidator . Further, this Tribunal , may issue directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Respondent Nos. 2 to 7, the Petitioner / Erstwhile Liquidator, is no longer the Liquidator of the Corporate Debtor , and was removed as the Liquidator , with effect from 01.07.2022, based on the Order , passed by the Adjudicating Authority / Tribunal , in IA No. 815 / 2020. The said Order was assailed by the Petitioner / Erstwhile Liquidator in Comp App (AT) (CH) (INS) No. 269 / 2022, which was dismissed , whereby and whereunder, this Appellate Tribunal , was pleased to uphold the Order of the Adjudicating Authority / NCLT , Chennai Bench, and that the removal of the Petitioner (Mr. V. Venkata Sivakumar) was validated. 41. In this connection, the Learned Counsel for Respondent Nos. 2 to 7 submits that the Petitioner / Erstwhile Liquidator, cannot claim to be acting as the Liquidator of the Corporate Debtor , and assail any acts , that he may or may not have taken during his time, when he was acting as the Liquidator of the Corporate Debtor . 42. According to Respondent Nos. 2 to 7, the Petitioner / Erstwhile Liquidator, cannot seek for a Recall / Review of the Impugned Order , passed in Comp App (AT) (CH) (INS) No. 08 / 2022, in his personal capacity as the said Appeal , was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (INS) No. 08 / 2022, on 05.01.2024, then, the only remedy , available for him is to prefer an Appeal , before the Hon ble Supreme Court of India , as per Section 62 of the I B Code, 2016. 47. The Learned Counsel for the Respondent Nos. 2 to 7 submits that the Petitioner has raised Frivolous Grounds of Fraud , Cheating , Obstruction of Justice , etc., without there being any averment as to how, these acts , have allegedly occurred. Any alleged act , has to be specifically pleaded in Law and there needs to be evidenced to justify the same. In the instant case, other than making bald allegations, which are outrightly denied, as being baseless, the Petitioner / Erstwhile Liquidator, is seeking for this Tribunal , to go on a roving expedition , without any legal basis and justification. Also, it is incorrect on the part of the Petitioner / Erstwhile Liquidator to aver that the 1st Respondent / New Liquidator, has not filed a Memo for withdrawal of the Comp App (AT) (CH) (INS) No. 08 / 2022 . 48. The Petitioner / Erstwhile Liquidator, instead of preferring an Appeal , before the Hon ble Supreme Court of India , has with a Mala fide Intention , has chosen to file the instant Review Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess , as per Section 230 of the Companies Act, 2013, read with Regulation 2B of IBBI (Liquidation Process) Regulations, 2016, in the interest of all Stakeholders and the maximization of the Corporate Debtor . 54. In view of the aforesaid backdrop, the 1st Respondent / New Liquidator, had made a submission, before this Appellate Tribunal , on 05.01.2024, to withdraw the Comp App (AT) (CH) (INS) No. 08 / 2022, in the interest of all Stakeholders and maximization of value of the Assets of the Corporate Debtor , and this Tribunal , had permitted the Appellant , in Comp App (AT) (CH) (INS) No. 08 / 2022, to withdraw the same and directed the Appellant , to file a Memo to that effect, and the said Memo , was filed before this Tribunal , on 08.01.2024 vide Diary No. 20 / 2024. Accordingly, the Comp App (AT) (CH) (INS) No. 08 / 2022 was dismissed as withdrawn , without costs, on 05.01.2024 and further, this Tribunal , had directed the Appellant , on 05.01.2024, to file the Memo , through efiling. Power to Recall : 55. It is worthwhile for this Tribunal , to cite the decision of the Hon ble Supreme Court of India in Sri Budhia Swain Ors. v. Gopinath Deb Ors., reported in AIR 1999 SC at Pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med Ors., AIR 1977 Kant 193. 63. Undoubtedly, the Powers of Review , were available, can be compared, only to top most portion of Pyramid with very limited scope for interference, as per decision in 2008 (4) MLJ 1213, 1216 (Mad). 64. No wonder, the Power of Review , is not inherent in Tribunal . No Review , when Statute , does not so provide. Also that, Review , is not a routine procedure , as per decision in Hon ble Supreme Court in Col. Avtar Singh Sekhon v. Union of India AIR 1980 SC at Page 2041 . Further, in the decision of Hon ble Supreme Court in Union of India v. B. Valluvan, reported in AIR 2007 SC 210, wherein, it is observed and held that the Court s Jurisdiction, to Review its own Judgment , as is well known is limited, but, it must be exercised with the framework of Section 114, read with Order 47 of C.P.C. 65. Continuing further, since Power of Review , is a Right , created by a Statute , it cannot be exercised by the Tribunal , in the absence of Statute , providing for it. As a matter of fact, the term Recall , should not be expanded to be read as Synonym , for Review . Appraisal : 66. The Petitioner in Review Application No. 3 / 2024 in Comp. App (AT) (CH) (INS) No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 of the Companies Act, 2013, read with Regulation 2B of IBBI (Liquidation Process) Regulations, 2016 and that the 1st Respondent / New Liquidator , believed there was no valid reason to continue the Comp. App (AT) (CH) (INS) No. 08 / 2022 (as made mention of by the 1st Respondent / New Liquidator) through his Memo dated 05.01.2024, but filed on 08.01.2024, before the Office of the Registry , and only, after acceding to the request of 1st Respondent / New Liquidator , the instant Comp. App (AT) (CH) (INS) No. 08 / 2022, came to be withdrawn on 05.01.2024. The legal position of the New Liquidator , will be of being the Master of the Proceedings , thus, the Principles of Dominus Litis Qua him will subsist , in the eye of Law . 70. At this juncture, this Tribunal , aptly points out that the Power to Recall of an Order or Judgment of a Tribunal , can be exercised by it only, if any procedural error , committed, in pronouncing the earlier Order or Judgment . In addition, the Power to Recall an Order / Judgment, earlier passed by this Tribunal , is not the power to Re-hear the case De-novo , to find out any Apparent error , in the Order / Judgment , which is in the ambit of a Review of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of repetition, the decision to withdraw the Comp. App (AT) (CH) (INS) No. 08 / 2022, was made by the 1st Respondent / New Liquidator in his official capacity , and not in his personal status / capacity and in Law , he is empowered to take a subjective decision , as to how, he can prosecute a Litigation or not to pursue any Legal Proceedings , which was instituted by the earlier Liquidator . 76. To be noted, that when Comp. App (AT) (CH) (INS) No. 08 / 2022 was permitted to be withdrawn by this Tribunal , on 05.01.2024, the connected IA No. 621 / 2022 (For Impleadment), filed by the Erstwhile Liquidator / Review Petitioner (appearing in person), was Closed, by this Tribunal . 77. Considering the fact that the Review Petitioner, in Review Application No. 3 / 2024, is now not the Liquidator of the Corporate Debtor , because, he was replaced by the 1st Respondent / New Liquidator , stepping into the shoes of the Erstwhile Liquidator , the Review Petitioner , in Review Application No. 3 / 2024, has no Locus Standi , to file the Review Application No. 3 / 2024, and all the more, he has No Vested Right , to agitate and contest the matter in his personal capacity . If at all, if the Revi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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