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2023 (4) TMI 72 - AT - Insolvency and BankruptcyDoctrine of Merger - suppression of fact or not - CIRP proceedings and approval of resolution plan - judgement has been obtained by playing fraud with the Court or not - allegation of fraud committed in a proceeding in which a judgement is passed and if the said judgement has merged with the order of Hon’ble Supreme Court, applying the doctrine of merger no one is entitled to approach the Court/Tribunal whose judgement/order has been merged with the judgement of the Hon’ble Supreme Court - locus standi in the case - HELD THAT:- In the present case there is neither any FIR nor any order passed under Section 340 of the Code of Criminal Procedure, 1973 and as such in this situation it would be impermissible to accede to the prayer for recall of a judgement of this Tribunal, which has long back merged with judgement of Hon’ble Supreme Court. In so far as doctrine of merger is concerned, a Three Judges Bench of Hon’ble Supreme Court in [2019 (11) TMI 731 - SUPREME COURT] has already given finality to the law in this regard. To justify the locus of the applicant No.2 and showing entitlement to file application on behalf of the applicant No.1 company Mr Deepak Khosla, learned counsel for the applicant has placed heavy reliance on a judgement of Federal Court reported in Dr Satya Charan Law and others Vs Rameshwar Prasad Bajoria and others [1949 (12) TMI 40 - FEDERAL COURT]. The applicant may not get any benefit from this judgement in view of the fact that the Hon’ble Federal Court also had considered that it is cardinal principle that in respect of any dispute, case is to be filed by the company itself to protect the right and interest of the company. However, exception has been noticed that the majority of the shareholders are also entitled to take steps to redress the wrong. The applicant in the present application has admitted that the Management of the company is under Administrator. Once Administrator was there, in normal course having been satisfied that by committing fraud judgement was obtained, then in that event it was expected for applicant No.2 to request the Administrator to take appropriate steps. Moreover in the present case the applicant was not a party in the earlier proceeding before this Tribunal and as such besides having no locus and also no order passed under Section 340 of the Cr PC it would not be appropriate for us to accede to the prayer for recall of the judgement which was passed long back in 2019 and finally merged with the order of Hon’ble Supreme Court on 15.11.2019. The present application can be dismissed primarily on the point of its maintainability.
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