M/S Bindu Enterprises Pvt Ltd vs Ms Sonu Jain Liquidator Of Falcon ...

Bindu Enterprises Pvt. Ltd. ...Applicant

Versus

Sonu Jain, Liquidator of Falcon Consultancy Pvt. Ltd. & Ors. ...Respondents

Present: For Applicant: Mr. C. K. Agrawal, Advocate.

For Respondents: Mr. Achal Gupta, Advocate with Mr. Sonu Jain, Liquidator for R-1 & 3. Mr. Abhishek Seth, Ms. Devika Chopra and Mr. Shaurya Sharma, Advocates for R-2.

ORDER

(Virtual Mode)

28.01.2022: Heard counsel for the Applicant. This Review Application

has been filed by the Applicant praying to review the Judgment dated

26.08.2021 passed by this Tribunal in Company Appeal (AT) (Ins) No. 658 of

2021. A few facts are necessary to be noted before deciding this Review

Application.

2. The Applicant had participated in an auction for property which was

published for e-auction by the Liquidator. His final bid was accepted and

consideration was paid. Liquidator filed an application before the Adjudicating

Authority seeking permission to re-auction the property. The said application

was allowed by the Adjudicating Authority by directing for re-auction by order

dated 03.08.2021. Aggrieved by the said order Company Appeal (AT) (Ins) No.

658 of 2021 was filed by the Applicant under Section 61 of the Insolvency and

Cont'd..../ 2

Bankruptcy Code, 2016, which was heard and dismissed on merits on

26.08.2021, against which this Review Application has been filed.

3. The learned counsel for the Applicant submits that this Review

Application has been filed under Section 420(2) of the Companies Act, 2013

read with Rule 11 of the NCLAT Rules, 2016. Section 420 sub-section (2) of

the Companies Act, 2013 provides as follows:

"Section 420: 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, 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."

4. The provisions of Section 420 sub-section (2) provides for rectification

of any mistakes apparent from the record. The present is not a case of any

mistake in the order which is sought to be rectified by this Review Application.

Applicant in this Review Application is seeking review of the judgment. The

submission of the learned counsel for the Applicant is that order was obtained

from fraud by Liquidator from the Adjudicating Authority, therefore, the

Appellate Tribunal ought to have interfered with the order of the Adjudicating

Authority. He has also referred to judgment of the Hon'ble Supreme Court in

AIR 2006 SC 3028, where Hon'ble Supreme Court held that any orders

Review Application No. 03 of 2021 in Company Appeal (AT) (Insolvency) No. 658 of 2021 3

obtained by fraud is nullity. It is not the case of the Appellant that order which

is prayed to be reviewed was obtained by fraud.

5. The present is the case where the question is that the Review Application

filed by the Applicant praying review of judgment is maintainable under

Section 420 sub-section (2) as claimed by learned counsel for the Applicant.

We are of the view that this application is not maintainable under Section 420

sub-section (2) of the Companies Act as well as Rule 11 of the NCLAT Rules,

2016 since it is not an application for rectification of any mistakes apparent

from the record but the application is for review of the judgment on the merits,

which is not permissible. We are of the view that remedy, if any, available to

the Applicant was to challenge the impugned order by filing an appeal. The

application for review is rejected.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

Archana/nn

Review Application No. 03 of 2021 in Company Appeal (AT) (Insolvency) No. 658 of 2021