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TMI Blog2023 (2) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated 23.11.2017 passed by the Tribunal in CP No. 68 of 2017 where the Tribunal passed the following order: "9. That apart, this Adjudicating Authority is not vested with the power to review/recall of its own order either under Section 60(5) of the IB Code or Rule 11 of the NCLT Rules 2016. Further, Hon'ble NCLAT in Company Appeal (AT) (Insolvency) No. 848 of 2019-Deepak Kumar vs. M/s. Phoenix ARC Pvt. Ltd., while dealing with the matter Hon'ble NCLAT observed that: ".....power to 'Review' is not an 'inherent power' and must be showered by Law either expressly or by necessary implication. As a matter of fact, the power to 'Review' is acreation of statute. Indeed, a 'Review Jurisdiction' cannot be pressed into service as an 'Appellate Jurisdiction'. Moreover, the 'Power of Review' is not to be confused with an Appellate power. It is further observed that; "23. A mere perusal of the 'NCLAT' Rules, 2016 unerringly point out that there is no express provision for 'review' and further that the Review Applicant/Appellant cannot seek the aid of rule 11 of the 'NCLAT' Rules, 2016 which speaks of inherent powers. Also, that the Review Applicant cannot seek umbrage under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he condition of the bail order. Further, on the Appellant No. 1's application, the Hon'ble High Court of Gujarat stayed further investigation in the FIR against the Appellant No 1 vide orders dated 24.08.2015. iv) Further case is that the statutory Auditor S. B. Vaidya & company, Chartered Accountant's resigned from the auditorship of Respondent No. 1 company on 21.03.2016. Vide letter dated 17.03.2017, Respondents denied inspection of records of Respondent No. 1 company to the Appellant No. 1. A notice dated 21.04.2017 was issued to the Appellant No. l convening an Extraordinary General Meeting on 20.05.2017 for removal of the Appellant No. l from the directorship of Respondent No. 1 company. The Appellant no 1 sought cancellation of the Extraordinary General Meeting and objected to the meeting, both in writing against the proposed removal of the Appellant no. 1 from the board of directors of Respondent No 1 company. v) The Appellants filed Company Petition No. 68 of 2017 due to the series of oppression against the Appellants herein and mismanagement of Respondent No. 1 company. Vide order dated 23.11.2017 (at page 619 to 653, Vol.-IV of the Appeal), the National Company L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from other banks or in cash. viii) The accounts of Respondent No 1 Company for the financial years 2013-14 to 2016-17 did not show any payment of property tax to Surat Municipal Corporation by Respondent No. 1 company. It is relevant to mention that Respondent No. 1 company got its accounts for all these years 2013-14 to 2016-17 audited by the Chartered Accountants by giving counter indemnity to the chartered accountants who audited the accounts. On 21.08.2018, Company Petition No. 36 of 2018 filed by the Respondents against the Appellant no. 1 herein came up for hearing before the National Company Law Tribunal, Ahmedabad. The Appellants herein mentioned before the Tribunal about the information acquired by them through personal visit, from the sub- registrar office, Surat and from Surat Municipal Corporation through RTI about the conversion/sale of Respondent No. 1 Company's plots by Respondent no. 2 and others to unknown third parties without execution of sale deeds and without accounting any receipts based on the evidence of property tax for the so-called unsold plots being paid by third parties to Surat Municipal Corporation and sought time for filing a counter petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph 43 onwards and para 59) * A. V. Papayya Sastry And Others Versus Government Of AP And Others [(2007) 4 SCC 221] (paragraphs 24 to 40) * Angelo Brothers Ltd Versus Bennett, Coleman & Co Ltd [2017 SCC Online Cal 768] (paragraph 38) 6. It is further submitted that there is inherent jurisdiction in this Appellate Tribunal to set aside NCLT Order/Recall its own order. Sub-section (2) of Section 424 provides for powers of civil court under CPC, 1908 for summoning and enforcing attendance of any person, examination on oath, requiring the discovery and production of documents, receiving evidence on affidavits etc on NCLAT. Sub-section (3) of Section 424 states that any order of the Appellate Tribunal may be enforced in the same manner as if it were a decree made by a court. Further, Sub-section (4) of Section 424 states that all proceedings before the Appellate Tribunal shall be deemed to be judicial proceedings and the Appellate Tribunal shall be deemed to be civil court for the purposes of Section 195 of the CRPC, 1973. The said Section 195 deals with filing of forged / false affidavits containing false evidence or false statements before a court of law. 7. Further, Rules 11, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, the Appellants seeks to recall an order passed in CP 68 of 2017 by the NCLT on 23.11.2017 and upheld by this Appellate Tribunal vide order dated 23.05.2018 and the same order was further upheld by Hon'ble Supreme Court vide order dated 10.08.2018. Accordingly, the order which Appellants wishes to recall has already reached to its finality with order of Hon'ble Supreme Court, hence no other lower court of the country can recall this order. This is well established law and practice under judicial process hence this appeal deserves to be dismissed with exemplary cost. In this regard, the Respondents relied on a judgment passed by the Hon'ble High Court of Mumbai, Nagpur Bench in PIL NO. 115 of 2017 with Writ Petition No. 5845 of 2018 (at page 10 to 28 of the Reply) wherein exemplary cost of Rupees Fifty Lakhs was imposed. Therefore, such misuse of process of law with an appeal of 12 volumes (2400 pages) is a lame to misguide the judiciary and deserves exemplary cost. 10. It is further submitted that submissions in this appeal are also not less than perjury. The Appellant claims that he made an RTI application on 14/08/2018 with the Surat Municipal Corporation and he came to know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 and that is why with the sole intention to delay justice in CP 36 of 2018. All these false and frivolous multiple litigations are being created and on the ground of pending this matter, the Appellant keep taking adjournment in CP 36 of 2018. 12. After hearing the parties and going through the pleadings made on behalf of the parties, we observe that the order dated 23.11.2017 which was passed by the Tribunal attained finality by the order of the Hon'ble Supreme Court and thereafter, recall application for recalling the order dated 23.11.2017 was filed by the Appellants is not tenable in the eye of law. We also observe that the Appellants are trying to reagitate the matter afresh. Keeping in view the aforenoted facts, we do not find any merit to interfere with the order impugned passed by the NCLT. The impugned order dated 26.04.2021 passed by the National Company Law Tribunal, Ahmedabad Bench, Ahmedabad in IA 608 of 2019 in C.P. No. 68/NCLT/AHM/2017 is hereby affirmed. The instant Appeal is hereby dismissed. No order as to costs. 13. Registry to upload the Judgment on the website of this Appellate Tribunal and send the copy of this Judgment to the National Company Law Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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