Balaji Enterprise vs Gammon India Limited & Ors

Balaji Enterprises ...Appellant/Applicant

Vs.

Gammon India Ltd. .... Respondent

Present: For Appellant: Ms. Shradha Agarwal, Adv.

For Respondent: None

ORDER

Per: Justice Rakesh Kumar Jain:

21.02.2023: The Appellant/Applicant filed an application under

Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code')

against the Respondent for initiation of the Corporate Insolvency Resolution

Process (in short 'CIRP') before the Adjudicating Authority (National Company

Law Tribunal, Mumbai Bench, Mumbai). The application was dismissed on

19.07.2017.

2. The Appellant preferred an Appeal bearing CA (AT) (Ins) No. 168 of 2017

before this Tribunal against the order dated 19.07.2017 which was disposed

of on 10.11.2017.

3. The Appellant/Applicant thereafter filed Civil Appeal No. 23520 of 2017

before the Hon'ble Apex Court. The said Appeal was withdrawn by the

Appellant on 12.10.2022 in which the following order was passed: -

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"After the matter was heard at some length, learned Counsel for the appellant has made a request to permit withdrawal of the present appeal to approach the National Company Law Appellate Tribunal (NCLAT) by way of filing a review application.

The appeal is accordingly permitted to be withdrawn."

4. The Applicant/Appellant has now filed this Review Application,

invoking Rule 11 of the NCLAT, Rules, 2016 (in short 'Rules') r/w Section

420(2) of the Companies Act, 2013 (in short 'Act'), of the order dated

10.11.2017 passed by this Tribunal in CA (AT) (Ins) No. 168 of 2017.

5. At the outset, Counsel for the Applicant has been asked as to how the

Review Application is maintainable in the absence of a provision of review in

the Code.

6. Although, Counsel for the Applicant could not refer to any provision of

review in the Code but it is submitted that the order dated 10.11.2017 can

be reviewed in view of Rule 11 of the Rules and Section 420(2) of the Act and

also in view of the order dated 12.10.2022 passed by the Hon'ble Apex Court.

7. We have heard Counsel for the Applicant and perused the record.

8. The Applicant has invoked Rule 11 of the Rules. The said Rules read

as under: -

"Inherent powers. - Noting in these rules shall be deemed to limit or otherwise affect the inherent powers of the Appellate Tribunal to make such orders or give such directions as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Appellate Tribunal."

9. Rule 11 of the Rules is akin to Section 151 of the Code of Civil

Procedure, 1908 (CPC) which read as under: -

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"151. Saving of inherent powers of Court.--Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court"

10. The Hon'ble Supreme Court in the case of My Palace Mutually Aided

Co-operative Society Vs. B. Mahesh & Ors., MANU/SC/1030/2022, has

observed in regard to Section 151 that:-

"28. Section 151 of the CPC can only be applicable if there is no alternate remedy available in accordance with the existing provisions of law. Such inherent power cannot override statutory prohibitions or create remedies which are not contemplated under the Code. Section 151 cannot be invoked as an alternative to filing fresh suits, appeals, revisions, or reviews. A party cannot find solace in Section 151 to allege and rectify historic wrongs and bypass procedural safeguards inbuilt in the CPC."

11. In so far as the Rule 11 of the Rules is concerned, this Tribunal in the

case of Action Barter Pvt. Ltd. Vs. SREI Equipment Finance Limited &

Ors., MANU/NL/0348/2020, has observed that:-

"We are of the firm view that the Rule cannot be invoked to revisit the findings retuned as regards the assertion of facts and pleas raised in the appeal and it is not open to reexamine the findings on questions of fact, how-so-ever erroneous they may be."

12. In so far as, Section 420(2) of the Act is concerned, it says that:-

"'Orders of Tribunal'- (2) The Tribunal may, at any time within two years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it,

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and shall make such amendment, if the mistake is brought to its notice by the parties:

Provided that no such amendment shall be made in respect of any order against which an appeal has been preferred under this Act."

13. Section 420(2) pertains to the power of the Tribunal for rectification of

the mistakes that too if the order passed by the Tribunal is not further

appealed. Therefore, this provision is not applicable to the present case and

does not create a right of review in any manner.

14. As we have found that neither Rule 11 of the Rules nor Section 420(2)

of the Act applies to the case of the Applicant and there is no provision for

review in the statute which is a complete Code in itself, whether the

application for review is maintainable?

15. In this context, reference could be had to the decision of the Hon'ble

Supreme Court in the case of Grindlays Bank Ltd. Vs. Central Government

Industrial Tribunal & Ors., MANU/SC/0308/1980, in which it has been

held by the Hon'ble Supreme Court that:-

"The power of review is not an inherent power, it must be conferred either specifically or by necessary implication."

16. Similarly, in the case of Patel Narshi Thakershi & Ors. Vs. Shri

Pradyuman Singhji Arjunsinghji, (1971) 3 SCC 844, it has been held

that:-

"It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication"

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17. Thus, in view of the aforesaid discussions, it is apparent that until and

unless there is a provision of review in the statute, it cannot be invoked as

an inherent power of the Tribunal by invoking Rule 11 of the Rules.

18. Counsel for the Applicant has also taken refuge to the order dated

12.10.2022 of the Hon'ble Apex Court to contend that the Review Application

has been filed after the permission has been granted by the Hon'ble Apex

Court.

19. We have carefully examined the order passed in Civil Appeal No. 23520

of 2017 by the Hon'ble Apex Court in which no such permission has been

granted to the Applicant to file a Review Application rather it appears that

when the Appellant was unable to convince the Hon'ble Apex Court, in so far

as the merits of the appeal are concerned, it decided to withdraw the appeal

in order to file a Review Application before this Tribunal. The Hon'ble Apex

Court has merely granted the permission to withdraw the appeal but no

liberty was granted to file a Review Application as well.

20. In view thereof, both the contentions raised by the Applicant are found

to be devoid of merits. It is, therefore, held that in the absence of a provision

of review in the Code, which is complete in itself, inherent powers provided

under Rule 11 of the Rules cannot be invoked for the purpose of filing a

Review Application.

21. Thus, we have found that the Review Application is not maintainable

from any angle it may be seen and is in fact an abuse of the process of law,

therefore, the Applicant deserves to be saddled with cost of this litigation.

Therefore, the Review Application is hereby dismissed. The Applicant is

saddled with the cost of Rs. 2 Lakh which shall be deposited by it in the Prime

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Minister Relief Fund within a period of 1 month with intimation to the

Registrar of this Tribunal.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Kanthi Narhari] Member (Technical)

[Dr. Alok Srivastava] Member (Technical)

Sheetal

Review Application No. 1 of 2023