Union Bank of India vs. Dinkar T. Venkatasubramanian
IA – 3961/ND/2022
Facts:
1.An application filed under Section 7 by the Union Bank of India against the Corporate Debtor – Amtek Auto Ltd was admitted vide order dated 27.07.2017. Union Bank of India and other creditors filed their claims in pursuance of the public announcement. The Union Bank of India from time to time issued various LCs and VGs on behalf of the Corporate Debtor maintained with them acting as the financial institution
2.Resolution Plan submitted by Respondent No. 2 and 3 was approved by the CoC with majority voting share of 70.07% on 11.01.2020. RP 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
3.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 which was partly allowed vide order dated 27.01.2022. Financial Creditor of Amtek Auto Ltd. (Present Applicant) filed Civil Appeal by Diary No. 5609/2022 in the Hon’ble Supreme Court against the judgment dated 27.01.2022 which was withdrawn by the Financial creditor with a liberty to file review before NCLAT.
4.Application for review was filed bearing Application No.01/2022 came to be dismissed by this Tribunal vide order dated 02.09.2022 holding that NCLAT is having no power to review. This application has been filed seeking recall of the order dated 27.01.2022.
Issue: Whether NCLAT is having the power to recall its order?
Arguments:
Petitioner:
1.Counsel submitted that present application has been filed to recall the judgment dated 27.01.2022 and the application is not for review of the judgment which review having already not being entertained by order of this Tribunal dated 02.09.2022. It is submitted that this Tribunal while refusing to entertain the Review Application has clearly made observation that if applicant is so advised, can avail other remedies in accordance with law, hence, present application has been filed under Rule 11 of NCLAT Rules, 2016
2.It was submitted that the recall of the order is not review of the order. The Applicant has prayed for recall of order since the judgment dated 27.01.2022 passed by this Tribunal was an order which was passed without Applicant being party to the Appeal.
3.It is submitted that Applicant thus is not praying for recall of the order on merits of the judgment rather Applicant is praying for procedural review, which is permissible in the facts of the present case. It is submitted that under inherent powers this Tribunal can recall an order which has been passed adversely affecting the rights of the parties to the proceeding.
Respondents:
1.Counsel contended that this Recall Application is not maintainable since Review Application No. 01/2022 filed by the Applicant has already been rejected by this Tribunal on 02.09.2022. The Hon’ble Supreme Court had granted liberty to the Applicant to file a Review Petition which having been filed and dismissed no further remedy can be availed by the Applicant. Rule 11 cannot be invoked for passing an order which is not provided for in the I&B Code.
2.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 in the NCLAT to review or recall its own judgment.
Decision: NCLAT referred the question to larger bench.
Rationale:
1.NCLAT noted that although 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.
2.When an application is styled as recall but in essence is review application, the said application cannot be entertained. 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
3.It noted that two judgments of Coordinate Bench of Tribunal where review and recall has been treated as alike.
Order Copy:
