Deepakk Kumar vs Phoenix Arc Pvt. Ltd. & Anr

IN THE MATTER OF: Deepakk Kumar Director of M/s Sovereign Infrastructure & Developers Ltd. No. 16, 2nd Floor, Jaladrshini Layout, New BEL Road, Bangluru ....Review Applicant/Appellant

Versus M/s Phoenix ARC Pvt. Ltd. (Trustee of Phoenix Trust FY 16-15 Scheme B) 5th Floor, Dani Corporate Park, 158, CST Road, Kalina, Shatacruz (East), Mumbai-400098.

M/s Sovereign Infrastructure & Developers Ltd., No. 16, 2nd Floor, Jaladrashini Layout, New BEL Road, Bangluru Through : Resolution Professional (Regd. No. IBBI/2017/IPA-001/1P- P00932/2017-18-11550 ...Respondents

Present: For Appellant: Mr. Dilip Singh, Advocate

For Respondent: Mr. Suresh Dutt Dobhal along with Ms. Sonakshi Dhiman, Advocates for R-1

Mr. Goutham Shivshankar (RP), Advocate for R-3

1 Review Application No. 09 of 2020 in Company Appeal (AT)(Insolvency) No. 848 of 2019 ORDER

Venugopal M. J Introduction The Review Applicant /Appellant has projected the instant Review

Application No. 09 of 2020 (under Section 420(2) of the Companies Act, 2013)

r/w Rule 11 of the 'NCLAT' Rules, 2016) seeking to 'Review' the judgement

dated 05.03.2020 in in Company Appeal (AT)(Insolvency) No. 848 of 2019 for

correction of an error 'apparent on the face of record' leading to an error also.

Review Applicant's Contentions

2. It is the stand of the Review Applicant that an error in the judgement in

Company Appeal (AT)(Insolvency) No. 848 of 2019 can be ascertained from the

following dates November,(1) 2012, the date of default of the original loan of

Karnataka Bank which was later assigned to ARC/Respondent No. 1 (2)

9.6.2016, the acceptance of loan assignment by the 'Corporate Debtor'. (3)

6.9.2018, the application filed u/s 7 of the 'I&B' Code filed before the

Adjudicating Authority ('National Company Law Tribunal'), Bengaluru.

3. The Learned Counsel for the Review Applicant/Appellant contends that

the application under Section 7 of the 'I&B' Code filed before the Adjudicating

Authority ('NCLT'), Bengaluru was beyond the period of limitation and this plea

was raised on the basis of simple admitted facts. However, this Appellate

2 Review Application No. 09 of 2020 in Company Appeal (AT)(Insolvency) No. 848 of 2019 Tribunal held that the said application u/s 7 of the 'I&B' Code is within the

limitation period.

4. The Learned Counsel for the Review Applicant/Appellant takes a stand

that the 1st Respondent / ARC filed the Section 7 application before the

Adjudicating Authority on 05.09.2018 and that the admitted position is there is

a gap of five years and ten months. Moreover, it is represented on behalf of the

Review Applicant that in Form No. 1 filed by the 1st Respondent / ARC before

the 'Adjudicating Authority' November 2012 is categorically written in the date

of 'default column' and, therefore, there is no scope for interpretation in respect

of the 'date of default', in view of the law laid down in 'Vasdeo R. Bhojwani' V.

'Abhyudya Cooperative Bank Ltd. & Anr.' (vide Civil Appeal No. 11020 of

2018 reported in 2019) 9 SCC page 158.

5. Advancing his arguments, the Learned Counsel for the Review

Applicant/Appellant emphatically comes out with a plea that to bring the

application u/s 7 of the 'I&B' Code within the period of limitation, the Tribunal

had relied upon the 'acknowledgment' from one subsequent date i.e. 9.6.2016 as

on this date an 'Acceptance of Loan Assignment Agreement' was signed with a

new loan agreement for fresh financing of Rs. 5 crores was signed by the

'Corporate Debtor' and its Directors including the Appellant. Besides this, some

payments were made but in the new loan, as per the averments of the

Respondents. But these payments cannot save the time barred loan, as these

are beyond the period of Limitation.

3 Review Application No. 09 of 2020 in Company Appeal (AT)(Insolvency) No. 848 of 2019

6. Expatiating his contention, the Learned Counsel for the Review

Applicant/Appellant submits that signing of a new loan agreement or an

assignment agreement beyond the period of three years, from the date of default

of earlier loan cannot extend the period of limitation of a time barred loan.

7. Added further, it is the case of Review Applicant that the date of default is

1.11.2012 and the three-year period ended on 31.10.2015. Further, in the

judgement of Hon'ble Supreme Court in 'Gaurav Hargovindbhai Dave' V.

'Asset Reconstruction Company (India) and Anr.' (Civil Appeal No. 4952 of

2019) it is held that the contents of Form 1 that has statutorily to be annexed

to the Section 7 application in Column II, which was the date of occurrence of

default 1.11.2012. In the instant case, according to the Review Applicant, the

default date was filled up in form 1 as 1.11.2012 and that the contents of Form

1 was not considered.

8. The forceful contention advanced on behalf of the Learned Counsel for the

Review Applicant/Appellant is that in the present case time begins to run from

1.11.2012 as a result of which the application is time barred, as per law laid

down in the decisions of Hon'ble Supreme Court in 'Gaurav Hargovindbhai

Dave' V. 'Asset Reconstruction Company (India) and Anr.' (Civil Appeal No.

4952 of 2019) relying upon the decision of Hon'ble Supreme Court 'B.K.

Educational Services Pvt. Ltd.' V. 'Parag Gupta and Associates', 2018 SCC

online Supreme Court 1921.

4Review Application No. 09 of 2020 in Company Appeal (AT)(Insolvency) No. 848 of 2019

9. The Learned Counsel for the Review Applicant/Appellant submits that

there is nothing on record after first default in November, 2012 anything

happened till October, 2015 i.e. within three years. Further, there is no pleading

in application u/s 7 of the 'I&B' Code and that no application u/s 5 of the

Limitation Act, 1963 claiming condonation of delay with averments of

acknowledgement or receipt of fresh disbursal of loan was filed.

10. The Learned Counsel for the Review Applicant/Appellant contends that in

Review Application No. 2 of 2018 (Dr. M.A.S. Subramanian & Ors.) Vs. 'T.S.

Shivakumar & Ors.' this Tribunal while dealing with the issue of maintainability

of 'Review Jurisdiction' referred to the judgement of the Hon'ble Supreme Court

in the matter of 'Assistant Commissioner, Income Tax', Rajkot V.

'Saurashtra Kutch Stock Exchange Ltd.' (reported in 2008) 14 SCC at page

171 and that it was discussed and held that any manifest and self-evident error

in the judgement which is passed and need not travel beyond record to see

whether the judgement is correct or not. Such aspects beyond record cannot be

gone into and considered on the strength of Section 420(2) of the Companies Act.

11. The Learned Counsel for the Review Applicant/Appellant takes a plea that

in the instant case, for none of the errors, this Tribunal has to travel beyond the

record, as all apparent on the record and that the date of default was November,

2012 and that the date of filing of an application u/s 7 of the Code was on

06.09.2018.

5Review Application No. 09 of 2020 in Company Appeal (AT)(Insolvency) No. 848 of 2019

12. The Learned Counsel for the Review Applicant/Appellant puts forth legal

argument that 'no amount of new loan' can extend the limitation of old loan and

further this Tribunal had applied Section 18 of the Limitation Act to an alleged

'acknowledgement' which is beyond three years from the date of default and this

cannot be an 'acknowledgement' in the eye of Law and further that this is the

self-evident error from the fact of record and that no other records need to be

seen.

13. The Learned Counsel for the Review Applicant/Appellant submits that the

'Default' in 'I&B' Code has a specific meaning as 'default of loan' demanded by

the Bank and it cannot be equated with new loan demand. Further, the new

loan balance is of Rs. 2.5 crores and had it been demanded, it could have been

paid then and there as debtor has this amount available with it from the day

one. Also that, the 90-95% of the project is complete and the 'Resolution

Professional' has not done anything and that the 'Corporate Debtor' is heading

towards 'Insolvency' and that the 'Promoters' are ready to arrange the fund and

to complete the project within 3-6 months based on different towers.

14. The Learned Counsel for the Review Applicant/Appellant contends the

facts which formed the part of the order dated 30.09.2019, 30.11.2019,

4.12.2019 passed by this Tribunal in Company Appeal (AT)(Insolvency) No. 848

6Review Application No. 09 of 2020 in Company Appeal (AT)(Insolvency) No. 848 of 2019 of 2019 were not considered at all in the judgement dated 05.03.2020 and the

said facts run as under:-

"a. That there are sufficient funds

to complete the project. At present a

sum of Rs. 11 Crore is lying with bank,

which is sufficient to complete the

Block-A&B of the project.

b. Applicant filed affidavit that

remaining works of different towers in

the project can be completed in 90

days. The tentative dates were given

block-wise and Tower wise.

c. The details of receivables

from customers given Tower wise to

show the solvency of company.

d. 84 flats are already

registered in block-A&B and 300 flats

are ready for registration."

15. This Tribunal has heard the Learned Counsel for the Review Applicant /

Appellant at the stage of admission of the 'Review Application' and noticed the

contentions advanced.

7Review Application No. 09 of 2020 in Company Appeal (AT)(Insolvency) No. 848 of 2019 Legal Position of Review

16. It is to be pointed out that the 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 a creation 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.

A 'review' cannot be claimed or asked for merely for a fresh hearing or arguments

or the correction of an erroneous view taken earlier.

Some Decisions

17. Be it noted, that no error can be said to be an error 'on the face of record'

if it is not self-evident and requires an examination or argument to establish it

as per decision of Hon'ble Supreme Court in 'Delhi Administration' V.

'Gurdip Singh' reported in AIR 2000 Supreme Court page 3737. In reality,

'Review' erases the previous judgement and hence, operates as Law from the

inception as per decision of Hon'ble Supreme Court M.A. Murthy V. 'State of

Karnataka & Ors.' reported in 2003 7 SCC at page 517. Even for correcting

an erroneous decision 'Review' does not lie.

18. It is an axiomatic principle in Law that an error contemplated must be

such which is apparent on the face of record and not an error which has to be

fished out and searched. The term 'Review' judicially and literally means 're-

examination' or 're-consideration'. Under the guise of 'Review' the Tribunal

would not rehear the parties both on 'facts and Law'. If two views are possible

8 Review Application No. 09 of 2020 in Company Appeal (AT)(Insolvency) No. 848 of 2019 on the point involved, the same is not a ground for 'Review' as per decision of

the Hon'ble Supreme Court in 'Hari Nagar Sugar Mills Ltd. of Bihar & Ors.'

reported in (2006) 1 SCC page 509. A re-appraisal of evidence on record for

finding out an error would amount to an exercise of 'Appellate Jurisdiction'

which is impermissible in Law.

19. It is significant to point out that a 'Court' or 'Tribunal' has no jurisdiction

to review its decision duly pronounced. It can do so only if it authorised by

statute as per decision 'Fernandes' V. 'Ranga Nayakulu' AIR 1953 Mad. 236.

An inherent jurisdiction must be exercised subject to the Rule if the Code does

contain specific provisions that would meet the necessities of the case in

question, such provisions should be followed, and the inherent jurisdiction

should not be invoked as per decision 'Malappa' V. 'Alagiri' AIR 1931 Mad.

79. Further, the Court has no inherent jurisdiction to reconsider or review an

order as per decision 'M Gadiya' V. 'M.K. Sewak' AIR 1977 Mad. 140.

'I&B' Code, 2016 and 'Companies Act', 2013

20. Section 5 Definition (1) of the 'I&B' Code speaks of 'Adjudicating Authority'

for the purpose of this part (part II), meaning 'National Company Law Tribunal'

constituted under Section 408 of the Companies Act, 2013 (18 of 2013). Section

2 Definition (4) of the Companies Act, 2013 speaks of 'Appellate Tribunal'

meaning the 'National Company Law Appellate Tribunal' constituted under

Section 410.

9Review Application No. 09 of 2020 in Company Appeal (AT)(Insolvency) No. 848 of 2019 Inherent Powers

21. Rule 11 of the 'National Company Law Appellate Tribunal' Rules, 2016

speaks of 'inherent powers' and the same is as follows: -

"Nothing in these rules shall be

deemed to limit or otherwise affect the

inherent powers of the Appellate

Tribunal to make such orders or give

directions as may be necessary for

meeting the ends of justice or to prevent

abuse of the process of the Appellate

Tribunal".

Companies Act

22. Section 420(2) of the Companies Act, 2013 reads as under: -

"(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 and

shall make such amendment, if the

mistake is brought to its notice by the

parties:-

10Review Application No. 09 of 2020 in Company Appeal (AT)(Insolvency) No. 848 of 2019 Provided that no such amendment

shall be made in respect of any order

against which an appeal has been

preferred under this Act."

Discussions

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 section 420(2) of the Companies Act, 2013 for filing the 'Review

Application' on the purported ground of rectifying any mistake apparent from

the record, within two years from the date of order passed, in the considered

opinion of this Court.

24. As far as the Company Appeal (AT)(Insolvency) No. 848 of 2019 is concerned,

the same was heard on 17.02.2020, arguments were advanced on both sides and

that the 'Judgement' was reserved. In fact, the judgement was pronounced on

05.03.2020 whereby and whereunder the 'Appeal' was found to be bereft of any

merits and the same was dismissed without costs. As such, the counter plea taken

by the Review Applicant/Appellant that earlier orders dated 30.09.2019,

13.11.2019 and 04.12.2019 were not taken into account by this Tribunal while

disposing of main appeal sans merits and it is an otiose one.

11Review Application No. 09 of 2020 in Company Appeal (AT)(Insolvency) No. 848 of 2019

25. It cannot be gainsaid that 'I&B' Code, 2016 does not contain any provision

for 'Review'. Also, it does not contain any provision similar to Section 420 of the

Companies Act, 2013. In this connection, a mere perusal of the 'National Company

Law Appellate Rule' 2016 unerringly point out that there is no express Rule for

'Review'. There can be no two opinion of a prime fact that Rule 11 of 'NCLAT'

Rules, 2016 is not a substantive Rule which confers any power or jurisdiction on

the 'Tribunal'. A 'Tribunal' has no power to perform an act which is forbidden by

Law.

26. The term 'record' in Section 420 of the Companies Act, 2013 means record

to the proceedings of the case. An error must be a 'patent error' and not a mere

'wrong decision'. Where two views are possible and the matter is debatable, the

order cannot be rectified by mistake apparent from record as per decision

'Commissioner of Income Tax' V. 'East India Cotton Association Ltd.' (1984)

149 ITR pg. 274.

When there is no mistake apparent from the record in the judgement delivered by a

Tribunal, then an application for review filed by the concerned Applicant cannot be

construed to be one under Section 420(2) of the Companies Act or under Rule 11 of

'NCLAT' Rules, 2016.

27. It is worth for this Tribunal to recollect and recall the decision of Hon'ble

Supreme Court in 'Lily Thomas' V. 'Union of India' reported in AIR 2000

Supreme Court pg. 1650 at spl. Pg. 1665 wherein it is held that the power to

12Review Application No. 09 of 2020 in Company Appeal (AT)(Insolvency) No. 848 of 2019 rectify or amend the order is exercised to remove the mistake without disturbing its

finality.

28. Be that as it may, in view of the fact that 'Re-hearing' and correction of the

judgement sought for in the present Company Appeal (AT)(Insolvency) No. 848 of

2019 dated 05.03.2020 is impermissible in Law and in the instant case cemented

on the attendant facts and circumstances and on an overall evaluation of the same

in a real and proper perspective, this Tribunal is of the considered opinion that the

appropriate course of action open to the Review Applicant / Appellant is to approach

the Hon'ble Supreme Court against the judgement in Company Appeal

(AT)(Insolvency) No. 848 of 2019 dated 05.03.2020 passed by this Tribunal.

Viewed in that perspective, the Review Application is devoid of merits.

Disposition

In fine, the Review Application No. 09 of 2020 in Company Appeal

(AT)(Insolvency) No. 848 of 2019 is dismissed. No costs.

[Justice Venugopal. M] Member (Judicial)

[V.P. Singh] Member (Technical)

[Shreesha Merla] Member (Technical) NEW DELHI

17th September, 2020 ss

13Review Application No. 09 of 2020 in Company Appeal (AT)(Insolvency) No. 848 of 2019