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2023 (7) TMI 308 - AT - Insolvency and BankruptcyMaintainability of Recall Application - whether the present Recall Application which is review in disguise cannot be entertained? - HELD THAT:- In another judgment of Budhia Swain & Ors. Vs. Gopinath Deb & Ors. [1999 (5) TMI 596 - SUPREME COURT], the Hon’ble Supreme Court has dealt with poser to recall. The Hon’ble Supreme Court held in the said case that power of recall cannot have been exercised and order of the Collector could be sustained only if supportable by the power to recall - The above judgment of the Hon’ble Supreme Court clearly laid down that when a judgment is rendered in ignorance of the fact that a necessary party had not been served at all or heard, the power to recall can be used. The subsequent judgment of Rajendra Mulchand Varma & Ors VS K.L.J Resources Ltd & Anr. [2022 (10) TMI 383 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] heavily rely on judgment of this Tribunal in Agarwal Coal Corporation Private Limited Vs Sun Paper Mill Limited & Anr. [2021 (10) TMI 1039 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI]. This Tribunal held that in the absence of any power of review or recall, order of this Appellate Tribunal or the Adjudicating Authority cannot be reviewed or recalled. Thus, it is clear that although this 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 - 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. Thus, it is felt appropriate that the issue which has arisen in the present application need to be referred to a larger bench to decide following questions: I. Whether this Tribunal not being vested with any power to review the judgment can entertain an application for recall of judgment on sufficient grounds? II. Whether judgment of this Tribunal in Agarwal Coal Corporation Private Limited Vs Sun Paper Mill Limited & Anr [2021 (10) TMI 1039 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI], Rajendra Mulchand Varma & Ors Vs K.L.J Resources Ltd & Anr. [2022 (10) TMI 383 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] can be read to mean that there is no power vested in this Tribunal to recall a judgment? III. (In the above two judgments this Tribunal has held that this Tribunal cannot recall its judgment in exercise of its inherent jurisdiction) Whether the judgment of this Tribunal in Agarwal Coal Corporation Private Limited Vs Sun Paper Mill Limited & Anr. and Rajendra Mulchand Varma & Ors Vs K.L.J Resources Ltd. & Anr. lays down the correct law? Let the papers be placed before Hon’ble Chairperson, NCLAT for constituting a larger bench for considering the above questions.
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