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TMI Blog2025 (4) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... s been rejected. 2. It is necessary to notice background facts, giving rise to filing of CA No.90/PB/2024: i. C.P. No.71/ND/2020 was an application filed by Union of India under Sections 241 and 242 of the Companies Act, 2013 (for short 'the Act') against the Delhi Gymkhana Club as Respondent No. 1. ii. One Col. Ashish Khanna, the husband of the appellant was impleaded as Respondent No.18 as a secretary of Delhi Gymkhana Club in the petition filed under Sections 241 and 242 of the Act. iii. NCLT proceeded to pass various order in the said company petition. iv. Col. Ashish Khanna has filed CA 440/PB/2022, praying for recall of the order dated 24.04.2020 and all order passed subsequent to 24.04.2020. The order dated 24.04.2020 was passed by single member judicial. The application CA440/2022 was dismissed by the NCLT vide order dated 15.12.2023 and cost of Rs.50,000 was also imposed. v. Col. Ashish Khanna, the husband of the appellant has filed another application CA 49/2024, praying for recall of the order dated 15.12.2023 and to declare it per incuriam which also came to be dismissed on 14.03.2024. vi. Col. Ashish Khanna filed Comp. App. (AT) No. 242/2024 in this Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission relies on Section 44 of Evidence Act, 1872 and submits that appellant has right to question the order dated 15.12.2023, which is an order per incuriam and nullity. Learned Counsel for the appellant has also placed reliance on provisions of Order 1 of Rule 8A of Civil Procedure Code, 1908 (for short 'the CPC'). Learned counsel for the appellant submits that order dated 15.12.2023, deserves to be set aside and appeal be allowed. 5. We have considered the submissions of counsel for the appellant and perused the records. 6. The proceeding in which order dated 15.12.2023 was passed was proceeding under Sections 241 & 242 of the Act initiated on an application filed by Union of India against the Delhi Gymkhana Club and other defendants. Col. Ashish Khanna the husband of the appellant was Defendant No.1 in the proceeding under Sections 241 & 242 of the Act, he being existing secretary of the Gymkhana Club at the time when Section 241 & 242 petition was filed. In the petition under Section 241 & 242, various orders were passed by the NCLT from time to time. CA No.440/2022 was filed by Col. Ashish Khanna, the husband of the appellant praying for recall of the orders 22.04.2020 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the impugned orders dated 24.04.2020 and 26.06.2020. The allegation of bias on the part of the then Acting President is without substance. Hence, the contention of the Applicant that these orders are void, FAILS. As the impugned orders are neither void nor voidable. 56. We will now examine the third issue i.e. whether this Tribunal has the power to recall its own order? It is important to mention here that no such power of recalling its own order or reviewing its own order has been granted to this Tribunal under the Companies Act, 2013 or in the Rules made thereunder. Applicant submitted that what is presently sought by him is not so much of a review of the order or judgment (whose consequence may be recall or as may be deemed otherwise appropriate, such as modification etc.) as much as a 'recall' of the order, simpliciter. Applicant relied upon the judgement of Pramod Bagga vs State (2008 CrilLJ 792) in which Hon'ble Delhi High Court carved out a clear distinction between 'review' of an order, and 'recall' of an order that is a nullity i.e. recall simpliciter. Another judgement on which Applicant relies upon is the judgment of Hon'ble Supreme Court in case of Kiran Singh vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding, further, we may notice observations made by NCLT in the impugned order rejecting the application, filed by the appellant holding that she has no locus. Following was observed in paragraphs 6, 7 & 8: "...By no stretch of imagination, one can interpret the abovementioned provision that a stranger to the proceeding may move to the court to declare an order or judgement as null or non-est. If one interprets section 44 of Indian evidence act in this manner, then the entire purpose of doctrine of locus standi will be frustrated. Courts and Tribunals will be flooded with applications moved by strangers to the proceedings on the grounds of alleged fraud and collusion. This can never be the intention of legislature while drafting Section 44. Section 44 gives a right to 'any party to the suit or other proceeding' to show the relevant judgements (Sec 40, 41, 42) was delivered by court not competent to deliver the judgement or that fraud or collusion has been played. The Applicant is admittedly not a party to the proceedings. The affected party Sh. Ashish Khanna has already made an attempt and failed. This attempt is by the spouse to reopen what has already been decided. We are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated in the supplementary inspection report dated 03/03/2020 that Col. Ashish Khanna neither had any green card nor he was dependent to any permanent member. The supplementary inspection report dated 03/03/2020 under the Companies Act, 2013 has discussed and detailed in the subsequent paras of the instant application. Mr. Ashish Khanna was earlier selected as Secretary of the DGC for a period of three years from 12 April 2018 to 11 April 2021. Basis the records maintained by the Club, it appears that the issue of the Mr. Khanna's suspension and eventual termination were discussed during the General Committee (GC) meeting dated 20 July 2020 and the Applicant was issued a show-cause notice dated 27 July 2020 by the then GC. Thereafter, the services of the Applicant were terminated on 4 August 2020 as decided in the GC minutes dated 04 August 2020. 10. In our previous order dated 15.12.2023 passed in CA 440/2022, we have elaborately discussed the history, background and the relevant judgements/orders passed in CP 71(ND)/2020 and various Company Applications filed by parties to the main case and more pertinently the various applications/ appeals filed by Mr. Khanna challenging th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ministry of Corporate Affairs itself. 6. It is the contention of the Applicant that by virtue of the (Acting President's) own administrative order dated 03.03.2020, since the Principal Bench was prescribed by him to comprise himself along with Mr. Hemant Kumar Sarangi, Member, Technical and since he knew that this Bench so composed could not take up the matter because the Member, Technical was a member of the club who would be compelled to recuse himself, perhaps being unable to find a Member (Technical) to conveniently sit with him and pass orders in a matter that he, by virtue of the pendency of his proposal for extension with the petitioning Ministry, ought not to hear, instead, even more perversely, he made matters worse, by choosing to hear the matter while sitting singly. .. " 10. Relevant part of order dated 15.12.2023 has also been extracted in paragraph 10 of the order of the NCLT which needs no repetition. 11. Now we come to the submissions advanced by the counsel for the appellant on basis of Section 44 of the Evidence Act, 1872 and Order 1 Rule 8A of the CPC. 12. Section 44 of the Evidence Act, 1872 is part of Sections 40 to 44, which are under the heading " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but it is not conclusive proof that the right of way exists. 43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant. Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue or is relevant under some other provisions of this Act. Illustrations (a) A and B separately sue C for a libel which reflects upon each of them. C in each case says that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither.A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C. (b) A prosecutes B for adultery with C, A's wife.B denies that C is A's wife, but the Court convicts B of adultery. Afterwards, C is prosecuted for bigamy in marrying B during A's lifetime. C says that she never was A's wife.The judgment against B is irrelevant as against C. (c) A prosecutes B for stealing a cow from him. B is convicted.A `afterwards' sues C for the cow, which B had sold to him before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sections 241 & 242, in fact the order dated 15.12.2023 is an order passed in the same very proceeding. The submission of the appellant that by virtue of Section 44 appellant can very well impeach the order dated 15.12.2023 on the ground that it was delivered by a Court, not competent to deliver it cannot be accepted. 14. We, thus are of the view that submission of the appellant on basis of Section 44 of the Evidence Act is misplaced and has no applicability to give any locus to the appellant to file an application to recall the order dated 15.12.2023 before the NCLT. 15. Now we come to the Order 1 Rule 8A of the CPC on which reliance has been placed by the appellant. Order 1 Rule 8A has been inserted in the CPC by Code of Civil Procedure Amendment Act, 1976. The provisions of Order 1 Rule 8A is as follows: "Order 1 - Parties to suits. 8A. Power of Court to permit a person or body of persons to present opinion or to take part in the proceedings. [Substituted by the Code of Civil Procedure (Amendment) Act, 1976, Section 52, for the former Rule (w.e.f. 1.2.1977).]- While trying a suit, the Court may, if satisfied that a person or body of persons is interested in any questio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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