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2021 (11) TMI 993 - AT - Insolvency and BankruptcyLiquidation of Corporate Debtor - Section 33 of the IBC - review power - Recall power - error apparent on the face of record or not - HELD THAT:- The term ‘Error apparent on the face’ of the proceedings is held to be one based on clear ignorance or disregard of the provisions of Law as per decision of the Hon’ble Supreme Court in LILY THOMAS, ETC. VERSUS UNION OF INDIA & ORS. [2000 (5) TMI 1045 - SUPREME COURT]. Further, in the decision of the Hon’ble Supreme Court in HARI VISHNU KAMATH VERSUS SYED AHMAD ISHAQUE AND OTHERS [1954 (12) TMI 22 - SUPREME COURT] it is held that ‘it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record’. Review power - HELD THAT:- In the decision of Hon’ble Supreme Court in Patel Narshi Thakershi V. Pradyumansinghji Arjunsinghji reported in (1971) 3 SCC Page 844, at spl page 847 it is observed and held that ‘the power of review is not an inherent power. It must be conferred by Law either specifically or by necessary implication’. No wonder, the ‘Tribunal’ has no inherent power to review, as per Section 114 and Order 47 of the Civil Procedure Code. Tribunal's Power - HELD THAT:- Mere glance of Section 420(2) of the Companies Act, 2013 unerringly points out that the ‘Tribunal’ has power to rectify its order, if there is any mistake apparent from the record, but it has ‘no power’ of review of its own order. In this regard, this ‘Tribunal’ pertinently points out that Rule 154 of the National Company Law Tribunal Rules, 2016 enjoins the ‘Tribunal’ to rectify its order, if there is any clerical or arithmetical mistake in the order of the Tribunal or any error therein arising out of any accidental slip or omission of its own motion or an application of any party by means of rectification. Recall power - HELD THAT:- It is significantly pointed out by this ‘Tribunal’ that Hon’ble Supreme Court in the decision in SRI BUDHIA SWAIN & ORS. VERSUS. GOPINATH DEB & ORS. [1999 (5) TMI 596 - SUPREME COURT] has prescribed the conditions for recalling an order (i) the proceedings suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent (ii) There exists fraud or collusion in obtaining the judgement (iii) There has been a mistake of the Court prejudicing a party, or (iv) a judgement rendered in ignorance of the fact that a necessary party has not been served at all or had died and his estate was not represented. In the instant case, on going through the impugned order dated 11.06.2021 in IA No.2034/2021 in (IB) 702(ND)/2018 this Tribunal finds that the ‘Adjudicating Authority’ at para 12 had observed that it has no power to review its own order but traversed beyond its purview and reviewed the order dated 04.07.2019 in CA No.827/2019 by concluding that once a liquidation order was passed there is no scope to recall, which is contrary to the order passed by it on 04.07.2019 where it observed that the pending application will be disposed and then liquidation be directed. The ‘Adjudicating Authority’ (National Company Law Tribunal, New Delhi II) is directed to restore the application to its file and to pass fresh orders on merits, in accordance with law, of course, after providing adequate opportunity of hearing to both sides, by permitting them to raise all factual and legal pleas as expeditiously as possible - application allowed.
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