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TMI Blog2023 (7) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... r R-2 (RP). ORDER ASHOK BHUSHAN, J. This Bench has been constituted to consider three questions referred by the three-member bench vide its order dated 09.02.2023, which are to the following effect: "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 "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." and "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." 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?" 2. Background facts leading to filing of I.A. No. 3961 of 2022 need to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is humbly prayed that this Hon'ble Appellate Tribunal may graciously be pleased to: (a) Allow the present application and recall the order dated 27.01.2022 passed by this Appellate in Company Appeal (AT) (Ins) No. 729/2020) (b) Direct ad interim stay of the operation of the order dated 27.01.2022 passed by this Hon'ble Appellate Tribunal in Appeal (AT) (Ins) No. 729/2020 till disposal of the present Recall Application. (c) Pass any other order which this Hon'ble Appellate Tribunal may deem fit in eyes of equity, justice and good conscience taking into account the specific facts and circumstances of the case." viii. When I.A. No. 3961/2022 came before three-member bench, submission was raised on behalf of the Respondents to the application objecting to the maintainability of the application. Two three-member bench judgments were relied before the three-member bench for the preposition that neither a review nor recall application is maintainable to review or recall judgment of this Tribunal. The judgments relied by the Respondent were judgments of this Tribunal in "I.A. No. 265 of 2020 in Company Appeal (AT) (Ins.) No. 412 of 2019, Agarwal Coal Corporation Private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the judgment of three-member bench of this Tribunal in "Agarwal Coal Corporation Private Limited" and "K.L.J Resources Ltd." (Supra) holding that Tribunal can neither exercise jurisdiction to review nor jurisdiction to recall does not lay down correct law. There is no jurisdiction in the Tribunal to review a judgment but Tribunal has ample jurisdiction to recall a judgment on the Tribunal being satisfied that there being procedural error in delivering a judgment by the Tribunal which needs correction. Learned counsel for the Applicant, however, submits that Applicant is not contending that those applications which are disguised as recall petition but in actual are review petition should be entertained by this Court. This Tribunal need not entertain any recall petition which is in essence a review petition. 5. Shri R. Venkata Ramani, learned Attorney General submits that in I.A. No. 222/2020 which was filed by the Union Bank of India before the Adjudicating Authority, only party impleaded was the Resolution Professional, hence, by challenging the order of Adjudicating Authority rejecting the said application on 09.07.2020, Union Bank of India was not required to implead any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex parte; and (h) any other matter which may be prescribed. (3) Any order made by the Tribunal or the Appellate Tribunal may be enforced by that Tribunal in the same manner as if it were a decree made by a court in a suit pending therein, and it shall be lawful for the Tribunal or the Appellate Tribunal to send for execution of its orders to the court within the local limits of whose jurisdiction,- (a) in the case of an order against a company, the registered office of the company is situate; or (b) in the case of an order against any other person, the person concerned voluntarily resides or carries on business or personally works for gain. (4) All proceedings before the Tribunal or the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860), and the Tribunal and the Appellate Tribunal shall be deemed to be civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)." 9. Under Sub-section (2) of Section 424, Tribunal has also been vested with various power as are vested with the Civil Court under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it." 12. Inherent power by a Court or Tribunal can be exercised to do justice between the parties, which exercise, however, in no manner should contravene any express provision of the statute. 13. Now we proceed to notice the judgments which have been relied by learned counsel for the Applicant and three-member bench judgments of this Tribunal which has been referred to in the referring order. The first judgment which has been relied by learned counsel for the Applicant is judgment of Hon'ble Supreme Court in ""(1988) 2 SCC 602, A. R. Antulay vs. R.S. Nayak & Another". In the above case, before the Hon'ble Supreme Court question arose as to whether the Hon'ble Supreme Court in exercise of its powers can set aside a direction given by earlier judgment of Hon'ble Supreme Court dated 16.02.1984. Justice Venkatachaliah in Paras 159, 160 and 161 laid down following: "159. But in certain cases, motions to set aside Judgments are permitted where, for instance a judgment was rendered in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree is made against him, he can approach the court for setting-aside the decision. 15. The next judgment relied by learned counsel for the Appellant is the judgment of Hon'ble Supreme Court in "(2009) 2 SCC 703, Asit Kumar Kar Vs. State of West Bengal & Ors.". The Hon'ble Supreme Court in the said judgment has noted distinction between review and recall petition in para 6, which is to the following effect: "6. There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party." 16. In another judgment of "(1999) 4 SCC 396, Budhia Swain & Ors. Vs. Gopinath Deb & Ors.", the Hon'ble Supreme Court has dealt with power to recall. In Paras 5, 6, 7 and 8 following has been laid down: "5. The only provision for review in the Act is to be found in Section 38-A whereunder a review may be sought for within one year from the date of the decision or order but only on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of a judgment may be lost by waiver or estoppel. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results. 8. In our opinion a tribunal or a court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party, or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence." 17. Learned counsel for the Applicant has also relied on judgment of the Hon'ble Supreme Court in "1980 (Supp) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew, the Court or quasi-judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi-judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi-judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d recall. The power to review is not conferred upon this Tribunal but power to recall its judgment is inherent in this Tribunal since inherent power of the Tribunal are preserved, powers which are inherent in the Tribunal as has been declared by Rule 11 of the NCLAT Rules, 2016. Power of recall is not power of the Tribunal to rehear the case to find out any apparent error in the judgment which is the scope of a review of a judgment. Power of recall of a judgment can be exercised by this Tribunal when any procedural error is committed in delivering the earlier judgment; for example; necessary party has not been served or necessary party was not before the Tribunal when judgment was delivered adverse to a party. There may be other grounds for recall of a judgment. Well known ground on which a judgment can always be recalled by a Court is ground of fraud played on the Court in obtaining judgment from the Court. We, for the purpose of answering the questions referred to us, need not further elaborate the circumstances where power of recall can be exercised. 21. Now we come to two three-member bench judgments of this Tribunal which have been noted and referred to in the order, which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at although in the preamble it is mentioned as "Recall Application'' yet it is only an "Application'' praying for "Review'' of the Order dated 16.10.2019 passed in Comp App. (AT)(Ins) No.412/2019 by this Tribunal, in stricto sense of the term." 22. In para 27, Tribunal has observed that order passed by Adjudicating Authority or Appellate Tribunal cannot be either reviewed or recalled. From reasons given in the judgment, it is clear that against the order of the Tribunal dismissing the appeal on 16.10.2019 an appeal was filed under Section 62 of the I&B Code before the Hon'ble Supreme Court, which appeal was dismissed as not pressed. Three-member bench held that the judgment of this Tribunal dated 16.10.2019 has become final between the parties. It was further noted in Para 30 that recall application is only an application praying for review of the order. Thus, the reason for rejecting the application are contained in Para 29 and 30, however, observations in Para 27 were made in wide terms that Adjudicating Authority and Appellate Tribunal has no power to review or recall. The above judgment of This Tribunal holding that there is no power to recall a judgment cannot be held to be l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vate Limited" and "K.L.J Resources Ltd. & Anr." observing that the Tribunal does not have power to recall cannot be approved. The three-member bench judgments of this Tribunal insofar as observation that this Tribunal has no power to review, no exception can be taken to that part of the judgment. We, however, hold that the judgment laying down that this Tribunal has no power to recall the judgment does not lay down correct law.
27. In view of the foregoing discussion, we answer the questions referred to this Bench in following manner:
I: This Tribunal is not vested with any power to review the judgment, however, in exercise of its inherent jurisdiction this Tribunal can entertain an application for recall of judgment on sufficient grounds.
II & III: 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." observing that this Tribunal cannot recall its judgment does not lay down the correct law.
28. We having answered the questions referred to this Bench, let this order be placed before the appropriate bench for consideration of I.A. No. 3961 of 2022. X X X X Extracts X X X X X X X X Extracts X X X X
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