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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 ..... le Liquidator of M/s. The Jeypore Sugar Co. Ltd., has filed the Review Petition No. 3 / 2024 in Comp. App (AT) (CH) (INS) No. 8 / 2022 (under Rule 11 of NCLAT Rules, 2016), in respect of the 'Impugned Order' dated 05.01.2024, passed by this 'Tribunal' in Comp. App (AT) (CH) (INS) No. 8 / 2022. 2. According to the Petitioner (appearing in person), he was the 'Erstwhile Liquidator', and against whom serious false allegations were made, resulting in an erroneous Order, being passed on 05.01.2024 in main Comp. App (AT) (CH) (INS) No. 8 / 2022, by this 'Appellate Tribunal'. 3. According to the Review Petitioner, the 'Impugned Order', dated 05.01.2024 in Comp. App (AT) (CH) (INS) No. 8 / 2022, was passed by this 'Appellate Tribunal', without hearing him, as an 'Aggrieved' 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er whose supervision the 'Liquidation Process', is expected to be monitored, according to the I & B Code, 2016, and the issue of 'Locus Standi', is very much 'inbuilt' into the 'Adjudicating Mechanism', and the 'Ex-Liquidator', becomes a 'Necessary Party'. 10. The Petitioner submits that in the Full Bench decision of this 'Tribunal', in Union Bank of India v. Dinkar T. Venkatasubramanian & Ors., reported in 2023 ibclaw.in 381 NCLAT, at Paragraph 8, wherein, it is observed as under: 8. "In our opinion a tribunal or a court may recall an order earlier made by it if Ground 1: The proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent. Ground 2: There exists fraud or collusion in obtaining the judgment. Ground 3: There has been a mistake of the court prejudicing a party, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... new Liquidator has 'no Jurisdiction', to function as the 'Order' passed, is against the 'Judicial Propriety', and refers to the Order in WP (C) 180 / 2022, NCLT Bar Association v. Union of India, wherein at Paragraphs Nos. 11 & 12, it is observed as under: 11. "From the above narration, it appears that following the meeting of the Selection Committee on 20 April 2022, a report was obtained from the President of the NCLT about the "work performance and suitability" of 23 Members. The Selection Committee then opined that there was no specific provision which empowered it to consider the issue of revising the term of Office of the Members of the NCLT. The Committee however observed that considering the sensitive nature of the functions and duties of the Members of the NCLT, and considering the verification reports bearing on the character, antecedents, performance and suitability of the Members, the Union Government 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 Judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Heard', as given below: "It is the case of the Appellant that he need not to comply with Regulation 7A in strict sense since he had applied for AFA well in time on 29.12.2019 much before accepting the assignment of the 'Liquidator'. As per Regulation 12A of the 'Insolvency and Bankruptcy Board of India (Model Bye - Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016, vide Notification No. IBBI/2016-17/GN/REG001, dated 21st November, 2016, the 'AFA' was deemed to have been received on expiry of 15 days from the date of application. The 'Appellant' received the communication of rejection of his application only on 16.07.2020 on telephone, hence, the 'Appellant', was under valid assumption of having received deemed approval of the 'AFA' and therefore, did not contravene any laws." 24. According to the Petitioner / Erstwhile Liquidator, he filed the Comp. App (AT) (CH) (INS) No. 8 / 2022, to clear the false allegations, made by the 'IDBI Bank', with a 'mala 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 Liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of mala fides to be proved and only in cases where based on the material placed before the Court or facts that are admitted leading to inevitable inferences supporting the charge of mala fides that the Court should record a finding in the process ensuring that while it does so, it also hears the person who was likely to be affected by such a finding." 30. The Petitioner / Erstwhile Liquidator, adverts to the decision of the Hon'ble Supreme Court of India in Ayaaubhkan Noorkhan Pathan v. State of Maharashtra & Ors., reported in AIR 2013, SC 58, wherein, at Paragraph 23, it is observed as under: 23. "A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Vaishampayan, AIR 1961 SC 1623, held that the rules of natural justice, require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party. Not providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice. (See also: Union of India v. T.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government Industrial Tribunal and others (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again." 33. The Petitioner, cites the decision of the Hon'ble Supreme Court in Maria Margarida Sequeira Fernandes V. Erasmo Jack de Sequeira, reported in 2012, 5 SCC at Page 370, wherein, at Paragraph 38, it is observed as under: 38. "Certainly, the above, is not true of the Indian Judicial system. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest". In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law." 34. The Petitioner, has relied on the following decisions : (a) Asit Kumar Kar V. State of West Bengal (2009) 2 SCC 703. (b) Harinagar Sugar Mills Limited V. Shyam Sundar Jhu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner in Review Application No. 3 / 2024 in Comp App (AT) (CH) (INS) No. 08 / 2022 (Erstwhile Liquidator) was removed and Mr. S. Hari Karthik (New Liquidator of the Company), was appointed by the 'Adjudicating Authority' / 'Tribunal', which was upheld by this 'Tribunal', on 20.12.2022 in Comp App (AT) (CH) (INS) No. 269 / 2022 (on the file of this 'Tribunal'). 38. According to the Respondent Nos. 2 to 7, the instant Comp App (AT) (CH) (INS) No. 08 / 2022, was 'Withdrawn', in the manner known to 'Law', by the 1st Respondent / New Liquidator of the 'Corporate Debtor', on 05.01.2024, and further, that he is 'quite competent' and 'empowered', to take such a 'decision'. 39. The Learned Counsel for Respondent Nos. 2 to 7 points out that the 1st Respondent / New Liquidator (being a 'proper Party' and got substituted in place of the 'Petitioner' / 'Erstwhile Liquidator' - Mr. V. Venkata Sivakumar), has now become 'Dominus Litis', can exercise in his 'discretion' and 'official capacity', as a 'Liquidator' of the 'Corporate Debtor', as to whether, he wants to prosecute the 'Appeal' or not, which he has ultimately chosen not to. 40. According to the Learned Counsel for the Respondent N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o in his personal capacity. 44. According to the Respondent Nos. 2 to 7, the Petitioner / Erstwhile Liquidator, was removed as 'Liquidator' of the 'Corporate Debtor' and in his place, the '1st Respondent / New Liquidator', was appointed. In fact, the 'Appeal', under question, is in relation to the 'Liquidation Process' of the 'Corporate Debtor', of which, the '1st Respondent / New Liquidator', is in 'Seisin of', and therefore, the 'Petitioner / Erstwhile Liquidator', has 'no Locus Standi', to be 'heard'. 45. According to the Respondent Nos. 2 to 7, a 'Power of Recall', is not the 'Power of the Tribunal', to 'Re-hear the case', to find out 'any apparent error', in the Judgment', which is the scope of a 'Review of a Judgment', which is what the 'Petitioner' is endeavouring to do. 46. The Learned Counsel for the Respondent Nos. 2 to 7, contends that the Petitioner / erstwhile Liquidator, is neither a 'Necessary' or 'Proper Party', for this 'Tribunal', to even consider his 'plea'. Further, he cannot 'Claim' as a 'Vested Right', to 'contest the case', in his 'personal capacity', when the 'Appeal', was filed by the 'Liquidator', in 'official capacity'. If at all, the Petitioner / Erst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority' / 'Tribunal', through an 'Order' dated 01.07.2022 and the 1st Respondent / new Liquidator Mr. S. Hari Karthik, was appointed in place of Mr. V. Venkata Sivakumar (Erstwhile Liquidator) and on 20.12.2022, this 'Tribunal' in Comp App (AT) (CH) (INS) No. 269 / 2022, had upheld the same. 52. It is represented on behalf of the 1st Respondent / New Liquidator that the New Liquidator, had verified the 'List of Litigations' pending for / against the 'Corporate Debtor', before this 'Appellate Forum' and other 'Forums', to represent the 'Corporate Debtor' and it came to light that many 'Appeals', including the captioned Comp App (AT) (CH) (INS) No. 08 / 2022, were pending for / against the 'Corporate Debtor'. 53. To be noted, that the 'Erstwhile Liquidator', had filed the captioned 'Appeal', against the fresh Section 230 process, under the Companies Act, 2013, ordered by the 'Adjudicating Authority' / 'Tribunal', on 17.11.2021, in IA No. 255 / IB / 2021 in CP / 1307 (IB) / 2018. Also that, to represent the 'Corporate Debtor', the 1st Respondent / New Liquidator - Mr. S. Hari Karthik, was appointed, in place of Erstwhile Liquidator (Mr. V. Venkata Sivakumar) and a necessary 'Aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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'. Review : 59. In fact, 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 SCC at P 618. A 'Review Court', cannot sit in 'Appeal', over its 'own Order' and 'rehearing of matter' is impermissible in 'Law'. 60. A 'Debatable' and 'Legal' issues are not covered by the expression 'Sufficient Reason' and as such, 'no Review', would lie, as per decision AIR 2008 (NoC) 67, Gau). 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'. 61. No 'Party', can seek 'Remedy of Review', on the ground that the decision is 'erroneous on merits', as per decision in Santi Kumar Jain v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 'Review Petitioner / Erstwhile Liquidator' in his 'personal capacity', cannot pray for a 'Review / Recall' of the 'Impugned Order', passed on 05.01.2024 in Comp. App (AT) (CH) (INS) No. 08 / 2022, because of the clear fact that the said Comp. App (AT) (CH) (INS) No. 08 / 2022, was filed by the 'Liquidator' of the 'Corporate Debtor' and not in his 'personal capacity'. The fact of the matter is that when the 1st Respondent / New Liquidator has stepped into the shoes of the 'Erstwhile Liquidator / Petitioner' (Mr. V. Venkata Sivakumar), then, the 'Review Petitioner' (Mr. V. Venkata Sivakumar), legally has 'No Vested Right', left with him, in respect of the instant Comp. App (AT) (CH) (INS) No. 08 / 2022, as opined by this 'Tribunal'. 69. It must be borne in mind that the 1st Respondent / New Liquidator of the 'Corporate Debtor', has the necessary 'Authority', to determine as to how, he can pursue a 'Litigation' and as 'Liquidator' of the 'Corporate Debtor', the 1st Respondent, has exercised his power to 'withdraw' the Comp. App (AT) (CH) (INS) No. 08 / 2022 on 05.01.2024, and based on the 'Memo' dated 08.01.2024, filed by the Learned Counsel appearing for the '1st Respondent / New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this 'Tribunal', while acceding to the 1st Respondent / New Liquidator's request, seeking permission to withdraw the Comp. App (AT) (CH) (INS) No. 08 / 2022, had passed 'Orders', in dismissing the Comp. App (AT) (CH) (INS) No. 08 / 2022 as withdrawn, on 05.01.2024. 72. It cannot be ignored that the 1st Respondent / New Liquidator, was appointed to represent the 'Corporate Debtor', by 'Operation of Law', replacing the 'Review Petitioner' / 'Erstwhile Liquidator' (Mr. V. Venkata Sivakumar) in Review Application No. 3 / 2024 in Comp. App (AT) (CH) (INS) No. 08 / 2022. 73. The 1st Respondent / New Liquidator of the 'Corporate Debtor', in his 'official capacity' and not on any 'personal status / capacity', took a decision to 'withdraw', the instant Comp. App (AT) (CH) (INS) No. 08 / 2022 (filed by the Review Petitioner / Erstwhile Liquidator) earlier, against the fresh Section 230 of the Companies Act, 2013 process, ordered by the 'Adjudicating Authority' / 'NCLT', Division Bench - II, Chennai, on 17.11.2021 in IA No. 255 (IB) / 2021 in CP / 1307(IB) / 2018. 74. The present Review Petitioner (Erstwhile Liquidator of M/s. The Jeypore Sugar Company Limited / Corporate Debtor), has no ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the 'Review Petitioner', in his personal capacity is 'not perse Maintainable', especially, in the teeth of he being neither a 'Necessary' or 'Proper' Party, to the case. 79. Suffice it, for this 'Tribunal', to point out that 'Review Petitioner', upon his removal as 'Liquidator' of the 'Corporate Debtor', when the '1st Respondent / New Liquidator', was appointed by the 'Adjudicating Authority' / 'Tribunal', only the 'New Liquidator / 1st Respondent', has stepped into the shoes of the 'Erstwhile Liquidator / Review Petitioner' (appearing in person), who in 'Law', as per Section 35 (1) (k) is the 'Authority', to take a 'subjective decision', as to how, he can pursue the Comp. App (AT) (CH) (INS) No. 08 / 2022, filed by the 'Erstwhile Liquidator / Review Petitioner', any further, and when a subjective decision', was taken by the '1st Respondent / New Liquidator', to withdraw the Comp. App (AT) (CH) (INS) No. 08 / 2022 (on the file of this 'Appellate Tribunal'), on 05.01.2024, then, the filing of the 'Review Application', by the 'Petitioner / Erstwhile Liquidator', is not 'Ex-facie Maintainable', in his 'personal capacity'. Looking at from any point of view, the 'Review Applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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