M.R.A Associates India Pvt Ltd vs Red Fort Capital Advisors Private ...

National Company Law Appellate Tribunal Principal Bench, New Delhi COMPANY APPEAL (AT) (INSOLVENCY) No. 640 of 2021 (Arising out of Order dated 23rd March, 2021 passed by National Company Law Tribunal, New Delhi Bench, Court-V, in IB- 2116/ND/2019).

IN THE MATTER OF:

MRA Associates (India) Private Limited 102, Parkview Apartment, New Manglapuri, New Delhi - 110030. ...Appellant

Versus

Red Fort Capital Advisors Private Limited C-50, Third Floor, Gulmohar Park, New Delhi - 110016. ...Respondent

Appellant: Mr. Vishal Ganda, Mr. Ayandeb, Ms. Sonam Gupta, Ms. Akanksha Mathur, Advocates. Respondent: None.

JUDGEMENT

[Per; Shreesha Merla, Member (T)]

1. By filing this Appeal, the Appellant has sought for setting aside the

Impugned Order dismissing the prayer for revival/restoration of Company

Petition No. IB/2116/ND/2019 filed before the Learned Adjudicating

Authority (National Company Law Tribunal, New Delhi, Court-V).

2. Heard the Learned Counsel for Appellant and pursued the averments

made in the Appeal. Learned Counsel for the Appellant submitted that the

matter was heard and the Order was passed by the Adjudicating Authority

on 30.09.2019. He further submitted that when the Order was reserved, the

Appellant had filed some additional documents but those documents had -2-

not been considered while passing the Order dated 30.09.2019 and the

Application was erroneously dismissed on the ground of limitation.

3. We observe from the record that the Adjudicating Authority had

reserved the Order on 20.09.2019 in Company Petition No.

IB/2116/ND/2019 and three days after the reserving of the Order, the

Appellant preferred CA No. 103/CB/ND/2019, on 23.09.2019, seeking a

direction to file additional documents. It is significant to mention that the

Order was pronounced on 30.09.2019. Further, despite CA No.

103/CB/ND/2019 having been listed by the Adjudicating Authority on

21.11.2019, 29.11.2019 and on 08.01.2020, none appeared on all the three

days and subsequently the Application was dismissed for default. Thereafter

the Appellant preferred a Review Application No. 09 of 2021 in

IB/2116/ND/2019 (which was disposed of on 30.09.2019), on 20.02.2021.

It is an admitted fact that the Appellant did not choose to challenge the main

Order of dismissal but has only filed this Review Application No. 09 of 2021.

The Learned Adjudicating Authority while dismissing the Review Application

observed as follows:-

"Admittedly, there is no provision for review of the order under IBC and this has also not been denied by the Ld. Counsel for the petitioner and that is a reason he placed reliance upon the Rule 11 of the National Company Law Tribunal Rules, 2016. The power of Appeal, Revision and the Review are the creation of legislature that is the statutory powers that cannot be exercised by the Court/Tribunal unless and until it is provided under the Act/Code. It is the settled principle of law if the power of Appeal, Revision and Review are not provided under the statute then under such circumstances, neither the appeal nor the revision nor review will lie.

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So, we are unable to accept the contention of the applicant that by exercising its power under Rule 11 of the NCLT Rules, 2016, this Adjudicating Authority is empowered to review the order. Hence, we have no option but to reject the prayer of the applicant, the prayer of applicant is hereby rejected. Accordingly, the application is dismissed."

4. The Hon'ble Supreme Court in a catena of Judgements has observed

that the 'Power of Review' must be conferred by law either specifically or by

necessary implication.

5. Sub-Section 2 of Section 420 of the new Act reads as under:-

"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:

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

6. Rule 9 of NCLT Rules reads as hereunder:-

"(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;"

7. We are of the considered view that sub-Section 2 of Section 420 only

discusses if there is any mistake apparent from the record and Rule 11 of

the NCLT Rules, 2016, which the Learned Counsel seeks to place reliance

upon, cannot be applied to the facts and circumstances of this matter,

keeping in view the aforenoted observations. Hence, we are in agreement

with the Learned Adjudicating Authority that 'Power of Review' is not an

inherent power and is required to be conferred either specifically or

necessary by implication. We find no grounds to interfere with the well-

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reasoned Order of the Learned Adjudicating Authority and hence this Appeal

fails and is accordingly dismissed.

[Justice Jarat Kumar Jain] Member (Judicial)

[Ms. Shreesha Merla] Member (Technical)

NEW DELHI 25th October, 2021

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Company Appeal (AT) (Insolvency) No. 640 of 2021