K. H. Khan And Anr vs Adel Landmarks Ltd. Through Sri Udayraj ...

Mr. K. H. Khan & Anr. ....Appellants Vs.

Adel Landmarks Ltd. ...Respondent For Appellants: Mr. Rana Mukherjee, Senior Advocate with Ms. Amrita Sharma, Mr. Manmohan PN, Mr. Darpan KM, Advocates.

For Respondent: Mr. Sanjay Bhatt, Advocate for RP Mr. Gaurav Mitra, Mr. Apoorv Agarwal, Mr. Kanishk Khullar, Advocates for R2.

ORDER

(Through Virtual Mode)

27.07.2022: Heard Learned Counsel for the Parties.

2. Shri Rana Mukherjee, Learned Senior Counsel for the Appellant submits

that this Appeal be confined to Company Appeal (AT) (Ins.) No. 855 of 2022

challenging the order dated 10.05.2022. We allow the prayer of the Learned

Senior Counsel for the Appellant and consider Company Appeal (AT) (Ins.) No.

855 of 2022 only against the order dated 10.05.2022.

3. The brief facts of the case necessary to be noticed are:

3.1. The Appellant has filed an Application being I.A. No. 4648/2020 under

Section 60(5) mentioning that Application under Section 7 of the IBC has been

admitted on 05.12.2018. The Appellant has filed an Application for deletion of 2

the scheduled properties which was claimed to belonging to Appellant in the

Application at the just above the scheduled properties, following was prayed:-

"WHEREFORE it is prayed that this Hon'ble Tribunal may be pleased to direct removal of the Scheduled Properties from the CIRP Process and deletion of the Schedule Properties from the information memorandum circulated by the Resolution Professional of the respondent in CP No. IB- 1083(PB)/2018 and pass such other and further order as deemed fit in the facts and circumstances of the case in the interest of justice and equity."

3.2. The Application came for consideration before the Adjudicating

Authority who rejected the same vide order dated 21.12.2021 by following

order:-

"The present application under consideration, i.e., I.A. 4648/2020, has been filed by Mr. K.H. Khan & Anr.

This bench after careful perusal of the said application has reached the conclusion that the relevant portion of the Application referred to as ("PRAYER"/ RELIEFS SOUGHT") is missing.

Hence, I.A. 4648/2020 stands dismissed."

3.3. The order dated 21.12.2021 indicate that I.A 4648/2020 was dismissed

only on the ground that relevant portion of the Application referred to as

'prayer'/ 'reliefs sought' is missing.

Comp. App. (AT) (Ins.) Nos. 854 & 855 of 2022 3

3.4. Subsequently, the Appellant filed I.A. 52 of 2022 where the Appellant in

the Application has mentioned in paragraph 2 about the prayers made in the

Application I.A 4648/2020. The Applicant prayed that order dated 21.12.2021

be reviewed and recalled and I.A 4648/2020 be allowed on merits. Application

I.A. 52/2022 has been rejected by the Adjudicating Authority observing that

there is no power of the review in the Adjudicating Authority.

4. We have considered the submissions of the Learned Counsel for the

parties and perused the record.

5. The present is a case where although in the Application I.A 52/2022,

word 'review' has been used but the Applicant was not asking for review of any

judgment or finding. The Applicant has prayed for recall of the order dated

21.12.2021 which order proceeded only on mistake that Application does not

contain a prayer clause. When Adjudicating Authority has rejected the

Application on misconception and has misread the prayer, the said order need

to be corrected by the Adjudicating Authority on being pointed out about the

error. Present is a case where error was pointed out before the Adjudicating

Authority but the same has not been corrected with the observation that the

Adjudicating Authority has no power to review. There cannot be any dispute

to the proposition that Adjudicating Authority has no power to review its

judgment but present is not a case for any review of the judgment rather

present was a case of correcting a mistake committed by the Adjudicating

Authority of misreading of the Application. In the ends of justice, it requires to

be corrected.

Comp. App. (AT) (Ins.) Nos. 854 & 855 of 2022 4

6. We, thus, are of the view that the order dated 10.05.2022 deserves to be

set aside and I.A 52/2022 needs to be heard afresh. Earlier order dated

21.12.2021 did not reject I.A No. 4648/2020 on merits and only on the

technical ground that it has no prayers. Now the prayers have been pointed

out to the Adjudicating Authority. The Adjudicating Authority ought to hear

the said Application on the merits after hearing the parties. We make it clear

that we are not expressing any opinion on merits of the Application I.A No.

4648/2020 and it is only for the Adjudicating Authority to consider and take

decision in accordance with law. The Appeal is allowed.

[Justice Ashok Bhushan] Chairperson

[Justice M. Satyanarayana Murthy] Member (Judicial)

[Barun Mitra] Member (Technical) Anjali/nn

Comp. App. (AT) (Ins.) Nos. 854 & 855 of 2022