Mr. Vineet Khosla vs M/S Edelweiss Asset Reconstruction ...

In the matter of: Vineet Khosla ....Appellant Vs. Edelweiss Asset Reconstruction Company Ltd. & Ors. ...Respondents For Appellant: Mr. Deepak Khosla, Advocate. For Respondents: Mr. Neeraj Malhotra, Senior Advocate with Ms. Vidhisha Haritwal, Mr. Nimish Kumar, Mr. Ujjaval Kumar, Mr. RP Agarwal, Ms. Manisha Agarwal, Advocates for R1 Mr. Abhishek Anand, Mr. Mohak Sharma, Mr. Sahil Bhatia, Advocates for R2, 4 & 5.

Contempt Case (AT) No. 06 of 2022 IN Comp. App. (AT) (Ins.) No. 1124-1125 of 2020

In the matter of: Vineet Khosla ....Appellant Vs. Edelweiss Asset Reconstruction Company Ltd. & Ors. ...Respondents For Appellant: Mr. Deepak Khosla, Advocate. For Respondents: Mr. Neeraj Malhotra, Senior Advocate with Ms. Vidhisha Haritwal, Mr. Nimish Kumar, Mr. Ujjaval Kumar, Mr. RP Agarwal, Ms. Manisha Agarwal, 2

Advocates for R1 Mr. Abhishek Anand, Mr. Mohak Sharma, Mr. Sahil Bhatia, Advocates for R- 14 & 15.

JUDGMENT

(28th February, 2022)

Ashok Bhushan, J.

The IAs aforesaid as well as Contempt Case filed by the Applicant arise

out of the judgment of this Tribunal dated 07.01.2022 delivered in Company

Appeal (AT) (Insolvency) Nos. 1124-1125 of 2020 by which judgment Appeals

filed by the Applicant/ Appellant were dismissed. Before we proceed to notice

the contents of the Applicants and the grounds raised therein as well as

averments in the Contempt Case, it is necessary to notice the sequence of the

events leading to the judgment dated 07.01.2022 of this Tribunal passed in

Company Appeal (AT) (Insolvency) Nos. 1124-1125 of 2020.

(i) The Applicant- Vineet Khosla is the Suspended Director of the

Corporate Debtor- 'M/s. Margra Industries Ltd.', a public company

incorporated under the Companies Act, 1956. The Corporate

Debtor availed loan facility from EXIM Bank in the year 1996. The

Corporate Debtor committed default in repayment of the loan on

29.07.2000. The EXIM Bank, the lender filed O.A No. 177 of 2001 3

before the Debt Recovery Tribunal ("DRT" for short) for recovery of

outstanding amount of Rs.5.11 Crores.

(ii) On 12.09.2011, the DRT in O.A No. 177 of 2001 issue certificate

for recovery of sum of Rs. 6.58 Crores in favour of the EXIM Bank

against the Corporate Debtor.

(iii) The EXIM Bank on 02.01.2014 assigned its debt due to the

Corporate Debtor in favour of 'Edelweiss Assets Reconstruction'.

(iv) On 14.03.2014, letter was sent by 'Edelweiss Assets

Reconstruction' (hereinafter referred to as "Respondent No.1) to the

Corporate Debtor in response to e-mail dated 04.03.2013

requesting for extension of time with respect to consent terms filed

in DRT. The Respondent No.1 granted its agreement to extend the

time upto 25.09.2014 subject to payment of Rs. 50 Lakhs within

one week.

(v) On request made on behalf of the Corporate Debtor, Respondent

No.1 granted extensions of five occasions to the Corporate Debtor

to make the repayment. Last extension was granted by the

Respondent No.1 by letter dated 17.12.2015 which was valid upto

31.03.2016. Due to non-payment by the Corporate Debtor, the

Respondent No.1 revoked the OTS by letter dated 05.04.2016.

(vi) Respondent No.1, the Financial Creditor filed an Application under

Section 7 of the Insolvency and Bankruptcy Code, 2016 ("Code" for

short) on 12.06.2018 claiming an amount of Rs. 44,20,38,989.20/. 4

Date of default mentioned in the Application was 29.07.2000. In

the Application filed under Section 7, Respondent No.1 has given

all the details including the filing of OA No. 251 of 2001, the

consent decree passed in O.A and the Recovery Certificate issued

by the DRT and the extensions prayed on behalf of the Corporate

Debtor for repayment and last extension being granted on

17.12.2015.

(vii) In the Application under Section 7, a Reply was filed by the

Corporate Debtor. The Adjudicating Authority, after hearing the

parties, by order dated 15.03.2019 admitted the CP(IB) No.

866/PB/2018.

(viii) Aggrieved by the order dated 15.03.2019, Vineet Khosla, the

Suspended Director filed Company Appeal (AT) (Ins.) No. 441 of

2019 before this Tribunal. Company Appeal (AT) (Ins.) No. 441 of

2019 was heard by this Tribunal and was dismissed by order dated

06.09.2019 of this Tribunal.

(ix) In the Corporate Insolvency Resolution Process ("CIRP" for short) of

the Corporate Debtor, no Resolution Plan came to be approved and

Committee of Creditors ("CoC' for short) vide its Resolution dated

21.12.2019 with 92.29% votes resolved to authorize Resolution

Professional to file an Application for liquidation before the

Adjudicating Authority.

5

(x) An Application CA No. 121 of 2020 was filed by the Resolution

Professional in the Company Petition praying for order of

liquidation in January, 2020.

(xi) On 02.01.2020, the Suspended Director (Applicant herein) filed CA

No. 307 of 2020 before the Adjudicating Authority praying for

recall of the admission order dated 15.03.2019 on the grounds of

fraud and lack of jurisdiction.

(xii) The Adjudicating Authority by order dated 15.10.2020 allowed the

CA No. 121 of 2020 and ordered for liquidation of the Corporate

Debtor.

(xiii) By order dated 10.11.2020, the Adjudicating Authority dismissed

CA No. 307 of 2020 filed by the Suspended Director.

2. Aggrieved by the orders dated 10.11.2020 and 15.10.2020 passed by the

Adjudicating Authority, Company Appeal (AT) (Ins.) No. 1124 & 1125 of 2020

was filed by the Applicant (Vineet Khosla) in this Tribunal. In Company Appeal

(AT) (Ins.) Nos. 1124 & 1125 of 2020, notices were issued on 23.12.2020 by

this Tribunal. Reply was filed by the Respondents to which Rejoinder-Affidavit

was also filed by the Appellants. Company Appeal (AT) (Ins.) Nos. 1124 & 1125

of 2020 were finally heard and by judgment dated 07.01.2022 has been

dismissed. After dismissal of the Company Appeal (AT) (Ins.) Nos. 1124 & 1125

of 2020, Appellant (Applicant) has also filed I.A Nos. 190, 191, 192 & 337 of

2022 in Company Appeal (AT) (Ins.) Nos. 1124 & 1125 of 2020. Contempt Case

(AT) No. 06 of 2022 has also been filed by the Applicant on 07.02.2022. 6

3. By I.A No. 190 of 2022, the Applicant prays for correction and mistakes

apparent on the face of the record by expunging of certain events alluded in the

order dated 07.01.2022. By I.A No. 191 of 2022, the Applicant has prayed for

maintaining status quo for four weeks. By I.A No. 192 of 2022, the Applicant

prays for recall of the order dated 07.01.2022 alleging it to be obtained by

practicing fraud upon this Tribunal by the Respondent No.1. By I.A No. 337 of

2022, the Applicant has prayed for a direction of status quo pending

adjudication of I.A Nos. 190, 191 & 192 of 2022 on which notices were issued

on 20.01.2022.

4. In Contempt Case (AT) No. 06 of 2022, the Applicant has prayed for

initiation of proceedings under Section 340 CrPC r/w Sections 191, 191, 192,

196, 197, 198, 199, 200, 202, 204, 2015, 209 of the Indian Penal Code r/w

Sections 120-B and 176 of IPC and other provisions of law against the 15

persons named as Prospective Accused Nos. 1-15, and also may examine the

case against the 6 individuals named at Sl No. 16-21 of the Memo of Parties.

5. This Tribunal, by order dated 20.01.2022 in I.A Nos. 190, 191 & 192 of

2022 filed by the Applicants, passed an order for listing the IAs on 08.02.2022

and in the meantime, counsel for the Respondent was permitted to file the

Reply of these Applications. Reply to the IAs have been filed by the Respondent

No.1 to which Rejoinder-Affidavit has also been filed by the Applicant. Along

with the IAs Contempt Case (AT) No. 06 of 2022 also came to be listed as a

fresh matter.

7

6. We have heard Shri Deepak Khosla, Learned Counsel appearing for the

Applicant in the above proceedings and Shri Neeraj Malhotra, Learned Senior

Counsel for Respondent No.1.

7. Shri Deepak Khosla, Learned Counsel for the Applicant submits that the

judgment dated 07.01.2022 passed by this Tribunal was obtained by

Respondent No.1 by practicing fraud on this Tribunal. Referring to I.A No. 192

of 2022, Learned Counsel for the Applicant submits that Respondent No.1

committed fraud on three counts due to which fraud this Tribunal was misled

in passing the judgment dated 07.01.2022 which judgment having been

obtained by practicing fraud is liable to be recalled. It is submitted that any

judgment and order obtained by practicing fraud on the Court can be recalled

by any Court or Tribunal. It is well settled law laid down by the Hon'ble

Supreme Court and reiterated in its several judgments. Elaborating his

submissions, Learned Counsel for the Applicant referred to paras 13 and 24 of

the judgment dated 07.01.2022. Learned Counsel for the Applicant submits

that in the Application filed under Section 7 by the Respondent No.1, the date

of default was being disclosed as 29.07.2000 and petition under Section 7 filed

on 12.06.2018 was clearly barred by time and no documents were filed by the

Respondent No.1 in support of extension of limitation under Section 18 of the

Limitation Act. Referring to submissions of the Learned Counsel for

Respondent No.1, as noticed in para 24 of the judgment, it is contended that

Learned Counsel for Respondent No.1 submitted that the DRT has passed a

decree on settlement of parties, thereafter, issued recovery certificate and 8

thereafter time to time the Corporate Debtor has acknowledged the debt and in

support, the Respondent No.1 has filed the documents to prove the

acknowledgment. It is submitted by Counsel for the Applicant that although no

documents were filed along with Section 7 Application regarding extension of

limitation but Counsel for Respondent No.1 made a false submission and

misled this Tribunal to assume that relevant documents for extension of time

were filed in Section 7 Application. It is submitted that false statement was

consciously and deliberately made by Counsel for Respondent No.1 to misled

this Tribunal. Only Recovery Certificate dated 12.09.2011 was appended

alongwith Section 7 Application and taking the said date, the limitation was to

expire on 11.09.2014 and the Application filed on 12.06.2018 was after expiry

of limitation. Learned Counsel for the Applicant further submitted that

Respondent No.1 fraudulently led this Tribunal to believe that particulars of

acknowledgments of debt that commenced a fresh period of limitation were

contained in the Company Petition filed before the NCLT which is apparent

from observations made in judgment dated 07.01.2022 in para 24. Following

observations made in para 24 by the judgment has been emphasized:

"Para 24................It is not shown by the Appellant that in reply to the Petition they have challenged the particulars mentioned in the Petition and documents filed alongwith Petition. However, the Respondent No.1 in his Written Submissions filed before this Appellate Tribunal has clarified the dates 9

when the Corporate Debtor had acknowledged the debt, which are as under:-...."

8. It is submitted by Learned Counsel for the Applicant that no particulars

as has been referred by judgment dated 07.01.2022 were furnished by

Respondent No.1 along with the Company Petition whereas as per the table of

dates reproduced by this Tribunal in para 24 of the judgment dated

07.01.2022, it is clear that they were not filed before the Tribunal and

Respondent No.1 fraudulently represented that letters dated 17.12.2015 and

27.02.2016 were written by the Corporate Debtor whereas they were written by

a shareholder. Respondent No.1 knew that it could not enter into

correspondence with any and every person purporting to have some interest in

the affairs of the Corporate Debtor, but only with a duly authorized Director of

the Company.

9. It is submitted by Learned Counsel for the Applicant that the above

mentioned acts of fraud, misrepresentation and deception consciously and

deliberately practiced by Respondent No.1 upon this Tribunal goes to the very

root of the matter and this Tribunal having misled on the representation of the

Respondent No.1 that relevant documents regarding extension of limitation

were filed in the Company Petition led to the judgment dismissing the Appeal

on 07.01.2022 which deserves to be recalled since this Tribunal was completely

deceived and misled. Learned Counsel for the Applicant states that

submissions as made above of the Applicant are sufficient to initiate 10

proceeding to punish the Respondents for committing Contempt of the Court

as well as for initiating prosecution against the Respondent as prayed in the

Contempt Application.

10. Shri Neeraj Malhotra, Learned Senior Counsel appearing for the

Respondent No.1 refuting the submissions of the Counsel for the Applicant

submits that the Applications filed by the Applicant are wholly misconceived

and have been filed only to harass the Respondent and prolong the litigation.

He further submits that in Section 7 Application filed by the Financial Creditor,

there was detailed pleadings regarding the sequence of the events and details of

extension granted by the Financial Creditor to Corporate Debtor have been

mentioned which clearly proved that when ultimately OTS was cancelled on

05.04.2016 the Application under Section 7 was filed which clearly proves that

Application was not barred by time. It is submitted that no objection was taken

by the Corporate Debtor in his Reply to Section 7 Application regarding

Application not being within limitation. Before the Adjudicating Authority, the

Corporate Debtor never contended that Application was not within time. After

admission of the Application, Appeal was filed challenging the order of

admission dated 15.03.2019 in which Appeal also no ground was taken that

Application under Section 7 was barred by time. The Appeal too was dismissed

by this Tribunal, after hearing Counsel for the parties, elaborately on

06.09.2019. No further Appeal was filed by the Appellant challenging the order

darted 06.09.2019 and it is only after the dismissal of the Appeal when the

Resolution was passed by the Committee of Creditors for liquidating the 11

Corporate Debtor. CA 307 of 2020 was filed by the Applicant seeking recall of

the admission order dated 15.03.2019 on the ground of fraud. Application CA

307 of 2020 was rejected by the Adjudicating Authority on 10.11.2020 holding

that question of limitation is a mixed question of fact and law and this issue

was never raised by the Applicant at the time of admission of petition and also

in the Appeal. The Adjudicating Authority held that no ground has been made

out to recall of admission order, hence Application CA No. 307 of 2020 was

rightly rejected.

11. Learned Counsel for the Respondent submits that there being no

Resolution Plan, the Adjudicating Authority has rightly taken a decision to

liquidate the Corporate Debtor. Consequently, Application CA No. 121 of 2020

was filed by the Resolution Professional which stood allowed on 15.10.2020. It

is submitted that in the Appeal filed against the orders dated 10.11.2020 and

15.10.2020 i.e. Company Appeal (AT) (Ins.) Nos. 1124-1125 of 2020, all

submissions have been made by respective parties which may duly considered

by this Tribunal vide its judgment dated 07.01.2022.

12. It is submitted that in the Application under Section 7 there was

sufficient pleading by the Applicant (Respondent No.1) to prove that Application

was not barred by time and there was extension of limitation by virtue of

acknowledgments made on behalf of the Corporate Debtor. It is submitted that

the letters written on behalf of the Corporate Debtor are evidence of

acknowledgment of debt and letters seeking extension of time were brought on 12

record along with the Reply filed by the Respondent No.1 in Company Appeal

(AT) (Ins.) Nos. 1124-1125 of 2020. It is submitted that Respondent No.1 never

contended before this Tribunal in Company Appeal (AT) (Ins.) Nos. 1124-1125

of 2020 that letters containing acknowledgment were filed along with the

Section 7 Application. There is no question of any misleading by the

Respondent No.1 and there is no question of fraud being played by the

Respondent No.1 on this Tribunal. All pleadings and documents which were on

record have been looked by this Tribunal for deciding the Appeal on

07.01.2022. Entire Application under Section 7 filed by the Respondent No.1

was brought on record in Appeal by Respondent No.1 itself with all its

annexures which amply proves that what documents were brought on record

along with the Section 7 Application and which letters and documents were

brought on record along with the Reply filed by the Respondent No.1. It is

submitted that due to the dismissal of the Appeal against the order dated

15.03.2019 by this Tribunal the principle of merger applies and the order of the

NCLT dated 15.03.2019 no more existed to enable the Applicant to pray for

recall of the said order. No false documents were filed by the Respondent No.1

either before the Adjudicating Authority or before this Tribunal. The question of

misleading by Respondent No.1 does not arise since all documents were filed in

the Reply before this Tribunal which have been noticed by this Tribunal in its

judgment dated 07.01.2022 in para 24 of the judgment. Referring to the

Contempt Application filed by the Applicant, Counsel for Respondent No.1 has

raised serious objection regarding the acts of the Applicant impleading 13

Respondent Nos. 16 to 21 who were the counsel appeared and assisted this

Tribunal in Company Appeal (AT) (Ins.) Nos. 1124-1125 of 2020. It is submitted

that filing of Contempt Application and prayer of prosecuting the counsel is

most objectionable and reckless act on the part of the Applicant.

13. Shri Deepak Khosla, Learned Counsel for the Applicant in his Rejoinder

submitted that the submission of Respondent No.1 based on doctrine of merger

are misconceived when order is obtained by fraud, it can be very well recalled

by any Court even if the Appeal against the said order has been dismissed. It is

submitted that no doctrine says that order obtained by fraud merges in

appellate order. The Order passed by the Adjudicating Authority was void order

and nullity. Non-est order or an order which is nullity shall always be nullity.

Respondent No.1 has filed the documents before this Tribunal in the Appeal

which documents were not before the Adjudicating Authority. Respondent No.1

misled this Tribunal to believe that documents which have now been filed

before the Appellate Tribunal along with the Reply of Respondent No.1 were

before the Adjudicating Authority. Learned Counsel for the Applicant however

submits that there is no denial to the letters which was written by the

Respondent No.1 since they were letters written by Respondent No.1. He

submits that the letters which is claimed to be the letter written on behalf of

the Corporate Debtor seeking extension of time were not the letters written by

the Corporate Debtor but were written only by a shareholder by which the

Corporate Debtor is not bound. It is further submitted that he is not making

his submissions on merits of the case as has been decided in the Appeal on 14

07.01.2022 and his arguments are only based on the fraud which is played on

this Tribunal by the Respondent No.1 in obtaining order dated 07.01.2022. The

order dated 07.01.2022 which has been obtained by practicing fraud on this

Tribunal deserves to be recalled by this Tribunal. He further submits that the

submission which has been raised in these Applications are submissions

confining to the fraud played on this Tribunal and he is not making

submission with regard to fraud which was practiced on the Adjudicating

Authority while obtaining order of admission on 15.03.2019. Learned Counsel

for the Applicant in support of his submission has relied on various judgments

of the Hon'ble Supreme Court which we shall refer by considering the

submission in detail.

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

Applicant and Learned Senior Counsel for the Respondent and perused the

record.

15. The main question which arise for consideration in these Applications is,

whether this Appellate Tribunal was misled and deceived by fraud practiced by

Respondent No.1 which lead dismissal of the Company Appeal (AT) (Ins.) Nos.

1124-1125 of 2020 vide its judgment dated 07.01.2022.

16. The judgment dated 07.01.2022 of this Tribunal in Company Appeal (AT)

(Ins.) Nos. 1124-1125 of 2020 is sought to be recalled on the ground of fraud

claim to have been practiced by Respondent No.1. Insolvency and Bankruptcy 15

Code, 2016 does not define fraud. 'Fraud' is defined in Section 17 of the Indian

Contract Act, 1872 in following words:-

"17. "Fraud" defined.--"Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent1 , with intent to deceive another party thereto of his agent, or to induce him to enter into the contract:--

(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent.

Explanation.--Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak , or unless his silence is, in itself, equivalent to speech."

17. The definition of 'fraud' as contained in Section 17 of the Indian Contract

Act, 1872 becomes relevant for determining a question of fraud claim to be 16

practiced in proceedings under the IBC. Section 3(37) of the IBC expressly

provided that words and expressions used but not defined in the Code but

defined in the Indian Contract Act, 1872 and other Acts as referred therein,

shall have the meanings respectively assigned to them in those Acts.

18. The Appellant alleges that fraud was played on the court i.e. this

Tribunal by the Respondent No.1. Elaborate submission of Counsel for the

Applicant which according to Applicant constitute fraud has been noticed

above. Before proceeding further to consider as to whether any fraud was

played by the Respondent No.1 on this Appellate Tribunal, we may first notice

the contentions of the Applicant that when an order is obtained from a Court or

Tribunal practicing fraud, the Tribunal has inherent jurisdiction to recall the

said judgment or decree and declare the said judgment as non-est and nullity.

19. The judgment of the Hon'ble Supreme Court in "United India Insurance

Co. Ltd. vs. Rajendra Singh & Ors.- AIR 2000 SC 1165" has been relied by

the Counsel for the Applicant. In para 17, following was laid down:-

"17. Therefore, we have no doubt that the remedy to

move for recalling the order on the basis of the newly

discovered facts amounting to fraud of high degree,

cannot be foreclosed in such a situation. No Court or

tribunal can be regarded as powerless to recall its own

order if it is convinced that the order was wangled 17

through fraud or misrepresentation of such a

dimension as would affect the very basis of the claim."

20. In "S.P. Chengalvaraya Naidu vs. Jagannath- (1994) 1 SCC 1", the

Hon'ble Supreme Court had held that a judgment or decree obtained by playing

fraud on the court is a nullity and non est in the eyes of law. In para 1 of the

judgment, following has been laid down:-

"Fraud avoids all judicial acts, ecclesiastical or

temporal" observed Chief Justice Edward Coke of

England about three centuries ago. It is the settled

proposition of law that a judgment or decree obtained

by playing fraud on the court is a nullity and non est

in the eyes of law. Such a judgment/decree by the

first court or by the highest court has to be treated as

a nullity by every court, whether superior or inferior.

It can be challenged in any court even in collateral

proceedings."

21. Another judgment of the Hon'ble Supreme Court we need to notice is

"A.V. Papayya Sastry v. Government of A.P.- AIR 2007 SC 1546" where

again the Hon'ble Supreme Court held that judgment, decree or order obtained 18

by playing fraud on the Court, Tribunal or Authority is a nullity and non est in

the eye of law. In para 22 of the judgment, following has been laid down:-

"22. It is thus settled proposition of law that a

judgment, decree or order obtained by playing fraud

on the Court, Tribunal or Authority is a nullity and

non est in the eye of law. Such a judgment, decree or

order by the first Court or by the final Court has to be

treated as nullity by every Court, superior or inferior.

It can be challenged in any Court, at any time, in

appeal, revision, writ or even in collateral

proceedings."

22. The Hon'ble Supreme Court in above case has also defined the

expression 'fraud'. The Hon'ble Supreme Court held that the fraud is an act of

deliberate deception with the design of securing some unfair or undeserved

benefit by taking undue advantage of another. In para 26, following has been

laid down:-

"26. Fraud may be defined as an act of deliberate

deception with the design of securing some unfair or

undeserved benefit by taking undue advantage of

another. In fraud one gains at the loss of another. Even 19

most solemn proceedings stand vitiated if they are

actuated by fraud. Fraud is thus an extrinsic collateral

act which vitiates all judicial acts, whether in rem or in

personam. The principle of 'finality of litigation' cannot

be stretched to the extent of an absurdity that it can be

utilized as an engine of oppression by dishonest and

fraudulent litigants."

23. In "Indian Bank vs. Satyam Fibres (India) Pvt. Ltd.-

MANU/SC/0657/1996", the Hon'ble Supreme Court held that judiciary has

inherent powers specially under Section 151 of CPC to recall its judgment for

orders if it is obtained by fraud. The Hon'ble Supreme Court further held that

above principle will apply not only to courts or law but also to statutory

tribunals. In para 32 of the judgment, following has been laid down:-

"32. The above principle will apply not only to court of

law but also to statutory tribunals which, like the

Commission, are conferred power to record evidence by

applying certain provisions of the Code of Civil Procedure

including the power to enforce attendance of the

witnesses and are also given the power to receive

evidence on affidavits. The Commission under

the Consumer Protection Act, 1986 decides the dispute by 20

following the procedure indicated in Section 22 read

with Section 13(iv) and (v) of the Act."

24. There is an elaborate consideration of expression 'fraud' in (2010) 8 SCC

383- "Meghmala and Others vs. G. Narasimha Reddy and Others". The

Hon'ble Supreme Court held that fraud and deception are synonymous. In para

34, following was held:-

"34. An act of fraud on court is always viewed

seriously. A collusion or conspiracy with a view to

deprive the rights of the others in relation to a property

would render the transaction void ab initio. Fraud and

deception are synonymous. Although in a given case a

deception may not amount to fraud, fraud is anathema

to all equitable principles and any affair tainted with

fraud cannot be perpetuated or saved by the application

of any equitable doctrine including res judicata. Fraud is

proved when it is shown that a false representation has

been made (i) knowingly, or (ii) without belief in its truth,

or (iii) recklessly, careless whether it be true or false.

Suppression of a material document would also amount

to a fraud on the court"

21

25. The ratio of judgments of the Hon'ble Supreme Court as noted above is

that fraud is an act of deliberate deception with the design of securing some

unfair or undeserved benefit by taking undue advantage of another. The

ingredients which need to be proved to find out as to whether fraud has been

committed are (i) an act of deliberate deception, (ii) with the design of securing

some unfair or undeserved benefit & (iii) by taking undue advantage of another.

26. The submission of the Counsel for the Applicant that Court has

jurisdiction to recall a judgment or decree which has been obtained by

practicing fraud on the Court is correct and supported by several authorities of

the Hon'ble Supreme Court as noticed above.

27. In the judgment dated 07.01.2022 passed in Company Appeal (AT) (Ins.)

Nos. 1124-1125 of 2020, the above proposition has already been accepted and

reiterated in para 26 of the judgment where this Tribunal held:-

"26. Hon'ble Supreme Court in the aforesaid

Judgments has settled the principle that every

Court/Tribunal has power to recall the order

obtained by practicing fraud. The Appellant has

miserably failed to prove that the Respondent No.

1 has obtained the order dated 15.03.2019 by

practicing fraud. Therefore, Ld. Adjudicating

Authority has rightly held that they no jurisdiction 22

to recall the admission order dated 15.03.2019."

28. The Hon'ble Supreme Court in the aforesaid judgments has settled the

principle that every court/ tribunal has power to recall the order obtained by

practicing fraud.

29. We need to consider the submission of the Counsel for the Applicant that

judgment dated 07.01.2022 was obtained by Respondent No.1 by practicing

fraud on this Appellate Tribunal. What are the grounds to allege fraud by

Respondent No.1 on this Tribunal has been stated in I.A No. 192 of 2022 as

noted above. The great emphasis has been laid down by the Learned Counsel

for the Applicant on submission of Respondent No.1 as recorded in para 13 of

the judgment dated 07.01.2022. In this context, we may refer to para 13 of the

judgment, which is to the following effect:-

"13. Per contra, Ld. Sr. Counsel for the

Respondent No. 1 vehemently opposed the

prayer and submitted that the Respondent No. 1

in its petition under Section 7 of IBC has

mentioned true facts that DRT has passed a

decree on settlement of parties and thereafter,

issued recovery certificate and thereafter, time to

time the Corporate Debtor has acknowledged the

debt and in support the Respondent No. 1 has 23

filed the documents. Therefore, it is incorrect to

say that the Respondent No. 1 has played any

fraud and obtained the admission order dated

15.03.2019. Therefore, Ld. Adjudicating

Authority cannot recall its own order.

Particularly, when the order dated 15.03.2019 is

affirmed by this Appellate Tribunal vide order

dated 06.09.2019. Thus, the order dated

15.03.2019 is merged with the Judgment of this

Appellate Tribunal and now that order is not in

existence. For this merger principle he placed

reliance on the Judgments of Hon'ble Supreme

Court in the case of Gojer Bros. Pvt. Ltd. Vs.

Ratan Lal Singh Civil Appeal No. 128 of 1972,

dated 01.05.1972 Para 9 and 11,

Kunhayammed and Ors. Vs. State of Kerla and

Ors. C.A. No. 12309 of 1996 Para 42 and 44(1)

and Apya Captial Services Pvt. Ltd. Vs.

Guardian Homes Pvt. Ltd. I.A. No. 2068 of 2021

in CA (AT) (Ins) No. 412 of 2020, dated

09.12.2021 Para 1, 10 to 13, 15."

24

30. What is sought to be contended by Learned Counsel for the Applicant is

the submission that Corporate Debtor has acknowledged the debt and in

support the Respondent No.1 has filed the documents was false statement

since no documents were filed by the Respondent No.1 along with Section 7

Application and the statement of Counsel for the Respondent No.1 that

documents were filed in support of the acknowledgment of debt is false and

misleading.

31. In the above reference, we may first notice Section 7 Application filed by

the Financial Creditor and what was the pleading in Section 7 Application and

what documents were filed in support thereof in Section 7 Application.

32. In Part- IV of the Application under Section 7, Applicant (Respondent

No.1) has stated that "days of default has been calculated from: (July 29, 2000)

and in Part-V in Column 2- "Particulars of an order of a Court, Tribunal or

Arbitral Penal adjudicating on the default, if any". The details of O.A No.

177/2001 filed by the EXIM Bank before the DRT has been mentioned. Copy of

the Recovery Certificate No. 67/2011 passed in O.A No. 177/2001 was filed as

Annexure A-11 of the Application. It is useful to notice the entire particulars in

Column 2:-

2. PARTICULARS OF AN The Exim Bank had filed O.A No. ORDER OF A COURT, 177/2001 before Hon'ble Debt TRIBUNAL OR ARBITRAL Recovery Tribunal Delhi-II under PENAL ADJUDICATING ON the principles of Order 23 Rule 3 THE DEFAULT, IF ANY CPC read with Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 read with Rule 18 of the 25

Rules framed thereunder.

The Exim Bank had filed O.A. No. 251/2003 before Hon'ble Debt Recovery Tribunal Mumbai-II.

A copy of order dated 28.06.2004 passed by the Hon'ble Debt Recovery Tribunal Mumbai-II with regards to the payment to be made to the Applicant by the Corporate Debtor and Recovery Certificate no.

67/2011 passed in O.A 177/2001, is herein annexed and marked as Annexure A-11

As per settlement terms filed in O.A No. 177/2001 in DRT- II, Delhi which was between EXIM Bank (Assignor of EARC) and Corporate Debtor, the OTS amount was Rs.

6,58,06,800/- and 10% of the said amount i.e. Rs. 65,88,680/- has been paid by Corporate Debtor and balance amount of Rs.5,92,26,120/- was payable on or before September, 12, 2012. A consent decree was passed on the above terms in O.A No. 177/2001.

The said consent terms included the dues of the present RC also.

The aforesaid OTS failed for want of repayment by the Corporate Debtor. On 2nd January 2014, vide an Assignment Agreement, all the loans granted to the Corporate Debtor by Exim Bank (Assignor) alongwith the underlying rights, title and interests were assigned in favour of the Applicant. On the request of the Corporate Debtor time and again, extension of the payment of the balance amount has been granted on 5 occasions by the Applicant. The last 26

extension was granted by the Applicant (EARC) vide letter dated 17.12.2015 which was valid upto 31.03.2016. ultimately, the Applicant (EARC) revoked the OTS vide letter dated 05.04.2016.

33. In Section 7 Application, apart from providing information in the

relevant columns as required in prescribed format in Form-1, there were total

28th Annexure filed along with Application by the Respondent No.1. In 2nd

Column of Part-V, as extracted above, it was pleaded that an amount of

Rs.5,92,26,120/- was payable on or before September, 12, 2012. It was further

pleaded that on request of the Corporate Debtor time and again, extension of

the payment of the balance amount has been granted on 5 occasions by the

Applicant (Respondent No.1). The last extension was granted by the Applicant

(Respondent No.1) vide letter dated 17.12.2015 which was valid upto

31.03.2016. It was further pleaded that the Applicant (Respondent No.1)

revoked the OTS vide letter dated 05.04.2016 and thereafter, the Application

under Section 7 was filed in the year 2018. It is also on the record that Reply

was filed by the Corporate Debtor in Section 7 Application wherein no issue

regarding Application under Section 7 being barred by limitation was raised.

34. We need to now revert to the submissions of the Counsel for the

Applicant that Respondent No.1 misrepresented before this Tribunal that

documents pertaining extension of limitation were filed by the Respondent to

these Applications (i.e. Applicant in Section 7 Application) along with Section 7 27

Application which misled this Tribunal to believe that all those documents were

filed before the Adjudicating Authority. In Company Appeal (AT) (Ins.) Nos.

1124-1125 of 2020 a detail Reply Affidavit was filed by the Respondent No.1

and in the Reply which was filed before this Tribunal copies of the letters of the

Corporate Debtor and copies of the letters of the answering Respondent i.e.

Financial Creditor were annexed.

35. We may now notice the pleadings of the Respondent No.1- Financial

Creditor with regard to letters written on behalf of the Corporate Debtor and

the Reply given by the Financial Creditor regarding granting extension of time

for payment of OTS amount which have been collectively filed as Annexures R-

3 and R-4. In para 20 of the Reply, detailed pleadings and reference of the

various letters has been made. It is useful to extract para 20 of the Reply which

is to the following effect:-

"20. I say that the brief facts in the present case is

enumerated below:-

(i) That Exim Bank was the original lender to the

Corporate Debtor and it had assigned the debt of

the Corporate Debtor to the answering

Respondent vide deed of assignment dated

02.01.2014.

28

(ii) That the Corporate Debtor failed to make the

payment of the decretal amount as per the

consent terms as referred to in para 19

hereinabove. The Corporate Debtor repeatedly

requested the answering respondent for extension

of time limit for payment of the OTS amount

telephonically as well as by written

communications.

Copies of letters dated 01.11.2014 & 17.03.2015

written by the Corporate Debtor to the answering

respondent seeking extension of the time for

payment of the OTS amount are filed herewith as

ANNEXURE R-3 (colly).

(iii) That the answering respondent on the request of

the Corporate Debtor had granted many

extensions for payment of the OTS amount. The

last extension had been granted by the answering

respondent vide its letter dated 15.05.2015 which

was valid upto 31.12.2015.

Copies of the letters of the answering respondent

dated 14.03.2014 (granting extension upto

25.09.2014), 23.09.2014 (granting extension upto

15.03.2015) and dated 15.05.2015 (granting 29

extension upto 31.12.2015) are filed herewith as

ANNEXURE R-4 (colly).

(iv) That the Corporate Debtor by its letter dated

01.12.2015, had requested for a re-negotiated

settlement at Rs. 4.50 crore. The said request was

turned down by the answering respondent by its

letter dated 10.12.2015.

A copy of the Corporate Debtor's letter dated

01.12.2015 is filed herewith as ANNEXURE R-5.

A copy of the answering respondent's letter

dated 10.12.2015 is filed herewith as

ANNEXURE R-6.

(v) That the Corporate Debtor by its letter dated

17.12.2015, again requested the answering

respondent for a re-negotiated settlement at Rs.

5.15 crore. The said request was accepted by the

answering respondent by its letter dated

17.12.2015. As per the re-negotiated settlement,

upfront amount of Rs. 50.00 lacs was payable on

or before 31.12.2015 and the balance of Rs. 4.65

crore was to be paid on or before 31.03.2016.

30

Copy of the Corporate Debtor's letter dated

17.12.2015 is filed herewith as ANNEXURE R-7.

Copy of the answering respondent's letter dated

17.12.2015 is filed herewith as ANNEXURE R-8.

(vi) That the Corporate Debtor ailed to make the

payment of Rs. 50.00 lacs under the re-negotiated

settlement before 31.12.2015. However, the

Corporate Debtor by its letter dated 27.02.2016

assured the answering respondent that it shall

pay the re-negotiated amount of Rs. 5.15 crore by

31.03.2016 along with interest on Rs. 50.00 lacs

for the default period i.e. an amount of about Rs.

2.00 lacs. However, the Corporate Debtor failed to

make any payment whatsoever after its said

letter dated 27.02.2016 to the answering

respondent. Copy of the Corporate Debtor's letter

dated 27.02.2016 is filed herewith as

ANNEXURE R-9.

(vii) That from the aforesaid factual details, it is

crystal clear that the Corporate Debtor had

consistently defaulted in payment of their liability 31

even entering into OTS with the answering

respondent and even after grant of several

extensions by the answering respondent. In view

of the same the answering respondent by its letter

dated 05.04.2016, was constrained to revoke the

OTS.

Copy of the answering respondent's letter dated

05.04.2016 is filed herewith as ANNEXURE R-

10."

36. Annexure R-3 (colly) referred to copies of letters dated 01.11.2014 and

17.03.2015 written by the Corporate Debtor to the answering respondent

seeking extension of the time for payment of the OTS amount filed along with

the Reply. Similarly, letters of answering respondent i.e. Financial Creditor

dated 14.03.2014, 23.09.2014 and 15.05.2015 were filed along with the Reply

as Annexure R-4 (colly). In the Reply, neither there was any statement nor any

kind of representation by Respondent No.1 that those letters which have been

filed along with the Reply were before the Adjudicating Authority along with the

Section 7 Application. In judgment dated 07.01.2022, this Tribunal itself has

noted the details of different letters given by the Financial Creditor and letters

on behalf of Corporate Debtor in tabular form in para 24. In para 24 of the

judgment dated 07.01.2022 although this Tribunal observed that "the

Respondent No.1 in his Written Submissions filed before this Appellate 32

Tribunal has clarified the dates when the Corporate Debtor had acknowledged

the debt, which are as under":-

23.09.2014 EARC by its letter dated 23.09.2014 Reply-Annex R-

extended the time for payment of OTS 4/Pg. 40 amount upto 15.03.2015 in response to email dated 18.09.2014 of the CD. 01.11.2014 Letters dated 01.11.2014 & 17.03.2015 Reply- Annex R- & written by the Corporate Debtor to 3/Pg. 37-38 17.03.2015 EARC seeking further extension of time for payment of the amount and offered payment of Rs. 50 lacs. 15.05.2015 EARC letter dated 15.05.2015 granting Reply- Annex R- extension upto 31.12.2015. 4/Pg. 41 15.05.2015 CD made the payment of the sum of -Do- Rs. 50.00 Lacs to EARC 01.12.2015 Letter of the CD dated 01.12.2015 Reply- Annex R- requesting for a re-negotiated 5/Pg. 42-43 settlement at Rs. 4.50 Crore 10.12.2015 Reply of EARC to the above letter dated Reply- Annex R- 01.12.2015 turning down the above 6/Pg. 44 request. 17.12.2015 Letter of the CD requesting EARC for a Reply- Annex R- re-negotiated settlement of Rs. 5.15 7/Pg. 45 - 46 Crore 17.12.2015 Letter by EARC accepting the above Reply- Annex R- settlement As per the re-negotiated 8/Pg. 47 settlement, upfront amount of Rs. 50.00 lacs was payable on or before 31.12.2015 and the balance of Rs. 4.65 crore was to be paid on or before 31.03.2016 CD failed to honour the above settlement 27.02.2016 Letter of the CD assuring EARC that it Reply-Annex R- shall pay the re-negotiated amount of 9/Pg. 48 -49 Rs. 5.15 crore by 31.03.2016 alongwith interest on Rs. 50.00 lacs for the default period i.e. an amount of about Rs. 2.00 lacs. CD failed to honour the above settlement 05.04.2016 Letter by EARC revoking the above OTS Reply- Annex R- dated 27.02.2016 10/Pg. 50 33

12.06.2018 Section 7 Application filed by EARC Appeal- Annex- which was registered as CP No. 5/Pg. 124 - 146 866/2018

37. The 3rd Column of the above table as contained in para 24 of the

judgment mentioned the details of the letter which has been filed before the

Tribunal. When we look into the table contained in para 24 of the judgment

and pleadings in para 20 of the Reply of Respondent No.1, it is clear that all

the letters which have been referred to in table in para 24 of the judgment have

been filed by the Respondent No.1 along with the Reply pleaded in para 20 and

annexed as Annexures R-3 to R8 collectively. It is clear that there was no

representation on the part of the Respondent No.1 that the letters aforesaid

which have been brought along with the Reply containing acknowledgment of

debt by the Corporate Debtor and seeking extension of time for making

payment were filed before the Adjudicating Authority along with Section 7

Application. The Respondent No.1 has neither pleaded nor represented that the

letters which are referred to in Annexures R-3 to R8 collectively were filed

before the Adjudicating Authority. Rather those documents for the first time

were brought on the record in Company Appeal (AT) (Ins.) Nos. 1124-1125 of

2020, to explain and clarify the pleading which is made by the Financial

Creditor before the Adjudicating Authority. As noted above, in Part-V of the

Application under Section 7, Column 2, pleading and foundation was already

laid down by the Financial Creditor regarding the extension of time sought on

behalf of Corporate Debtor for making the repayment. Last letter was issued by 34

the Respondent No.1- Financial Creditor on 17.12.2015 by which extension

was granted by the Financial Creditor to Corporate Debtor for payment upto

31.03.2016. The letter dated 17.12.2015 was not filed along with Section 7

Application but was brought on record along with the Reply in Appeal.

38. We may make it clear that we are not adverting to the question on merits

as to whether the Application under Section 7 filed by the Respondent No.1

was whether barred by time or was within the limitation prescribed. The

Application having been admitted by the Adjudicating Authority which

Application was objected by the Corporate Debtor by filing Reply and no plea

regarding limitation was admittedly raised. Application was admitted by the

Adjudicating Authority against which the Appeal was filed by the Suspended

Director of the Corporate Debtor which too was dismissed by this Tribunal on

06.09.2019. The question of admission of the Application become final and

affirmed by this Tribunal. It is not for us to advert on the question of limitation

which was never pressed by the Appellant before the Adjudicating Authority in

Section 7 Application. The facts and pleadings in Section 7 Application as well

as in Company Appeal (AT) (Ins.) Nos. 1124-1125 of 2020 are being noticed in

detail to examine the contention of the Applicant that fraud was played by

Respondent No.1 on this Tribunal while obtaining the order dated 07.01.2022

dismissing the Appeal.

39. From the pleadings in para 20 of the Reply filed by the Respondent No.1

in Company Appeal (AT) (Ins.) Nos. 1124-1125 of 2020, it is evidently clear that 35

there is no representation by Respondent No.1 that letters referred to

Annexures R-3, R4, R5 to R8 (Colly) were filed before the Adjudicating

Authority and those letters were brought on record along with the Reply filed in

the Appeal. The submission of Respondent No.1 as noted in para 13 of the

judgment dated 07.01.2022 cannot be read to mean that Respondent No.1

misrepresented before this Tribunal that particulars mentioned in the Section

7 Application and documents were filed along with the Section 7 Application.

The statement of Counsel for Respondent No.1 as noted in para 13 cannot be

read to mean that Respondent No.1 contended before this Tribunal in hearing

of the Appeal that documents containing acknowledgment by Corporate Debtor

has been filed along with Section 7 Application. The observation "the

Respondent No.1 has filed the documents" can also not to be said false since

admittedly correspondence of the Corporate Debtor as well as the Financial

Creditor have been brought on the record in the Reply filed by the Respondent

No.1 in the Appeal. Similarly, the observation of this Tribunal in para 24 of the

judgment dated 07.01.2022 where this Tribunal observed that "and thereafter

time to time the Corporate Debtor has acknowledged the debt and

the Respondent No. 1 has filed the documents to construe the

acknowledgement" cannot be read to mean that Respondent No.1

submitted that documents were filed along with Section 7

Application. Neither the Tribunal has noted the submission of the

Respondent No.1 to the effect that Respondent No.1 pleaded that all

documents pertaining to acknowledgment have been filed along with 36 Section 7 Application nor in fact Respondent No.1 even pleaded or

submitted before this Tribunal at the time of hearing of this Appeal

that documents of acknowledgment of debt by the Corporate Debtor

have been filed along with Section 7 Application. We, thus, are

satisfied that neither the Respondent No.1 practiced any fraud or

misled this Tribunal with regard to pleadings and submissions as

noted in paras 13 and 24 of the judgment dated 07.01.2022 nor

there was any false statement made by the Respondent No.1 before

this Tribunal at the time of hearing of the Appeal that documents of

acknowledgment by Corporate Debtor were filed before the

Adjudicating Authority although in the Section 7 Application,

pleadings regarding acknowledgment and extension of time by

Financial Creditor for payment have been clearly made as noted

above.

40. Learned Counsel for the Respondent No.1 has submitted before

us that since pleading under Section 7 Application regarding

extension of time granted by Financial Creditor were never disputed

by the Corporate Debtor in Reply filed before the Adjudicating

Authority, no occasion arose to file relevant correspondence before

the Adjudicating Authority and in these Applications Applicant i.e.

Suspended Director of the Corporate Debtor sought to contend that

fraud and misrepresentation was done by the Respondent No.1. All

correspondence had been brought on the record in Appeal to clarify 37

the position and to bring relevant correspondences in record which

evidence the acknowledgment of debt by the Corporate Debtor time

and again to satisfy this Tribunal at the time of hearing of the Appeal

that neither any fraud practiced by Respondent No.1 regarding

limitation of Section 7 Application nor there was any

misrepresentation on the part of the Respondent No.1.

41. We, thus, are fully satisfied that there was neither any fraud

practiced by Respondent No.1 nor any misrepresentations made by

Respondent No.1 before this Tribunal and the judgment dated

07.01.2022 passed by this Tribunal cannot be held to be obtained by

fraud. We, thus, do not find any substance in the submissions of

counsel for the Applicant of allegation of fraud or misrepresentation.

42. We may further notice the submission of Learned Counsel for

the Applicant that letters which were written by the Financial

Creditor to the Corporate Debtor were not by any authorized person.

It is submitted that letters which were sent by Financial Creditor

where addressed to one of the Directors Shri Deepak Khosla and

request which was received on behalf of the Corporate Debtor were

not by authorized person. The letters dated 01.11.2014 and

17.03.2015 which have been brought on record as Annexure R-3

(Colly) to the Reply of Respondent No.1 in the Appeal were written on

behalf of 'Margra Industries Ltd.'- Corporate Debtor. Letters dated 38

14.03.2014, 23.09.2014 and 15.05.2015 which were addressed to

Director of the Corporate Debtor. Another letter Annexure R-5 which

was to the Reply is letter dated 01.12.2015 sent on behalf of the

Corporate Debtor. In letter dated 01.12.2015, it was said that

payment shall be completed at the earliest and Financial Creditor

need not wait till 31.05.2016. The said letter was written on letter

pad of the Corporate Debtor and signed by one of the Directors.

43. The correspondences between the Financial Creditor and the

Corporate Debtor at the relevant time was exchanged and we have

no reason to accept the submission of Counsel for the Applicant that

letters which were written on behalf of the Corporate Debtor were not

by the authorized person since the letters written by Financial

Creditor were given effect to. For example- in response to letter dated

14.03.2014 written by Financial Creditor to the Corporate Debtor on

One Time Settlement- extension of time was granted to Financial

Creditor till 25.09.2014 subject to payment of Rs. 50 Lakhs within

one week. The letter was acknowledged on 18.03.2014 by the

Corporate Debtor and pay order of Rs. 50 Lakhs was handed over on

18.03.2014 that too was addressed to Shri Deepak Khosla as

Director. We, thus, do not find any substance in the submission of

the counsel for the Applicant that there was any fraud played by

Respondent No.1 in sending the letters granting extension of time for

payment of settlement amount to unauthorized person. This 39

Tribunal delivered its judgment dated 07.01.2022 after elaborately

hearing the counsel for the parties. The parties were permitted to file

Written Submissions which are on the record. It is also relevant to

note that the Application filed under Section 7 was already admitted

by the Adjudicating Authority vide its order dated 15.03.2019

against which Appeal was filed by Suspended Director which too was

dismissed on 06.09.2019. Company Appeal (AT) (Ins.) Nos. 1124-1125 of

2020 was filed against the orders dated 08.11.2020 and 15.10.2020 by which

Adjudicating Authority has directed for liquidation and rejected the Application

of the Suspended Directors for recalling the order dated 15.03.2019. The

orders were already passed in favour of the Respondent No.1 admitting CIRP

and the Appeal was filed by Suspended Director challenging the aforesaid two

orders. The Appeal filed by the Suspended Directors were dismissed. This

Appellate Tribunal has framed only two questions for consideration which are

noted in para 20 of the judgment to the following effect:-

"2. Issue for consideration before us in these Appeals are that:

(i) Whether the Adjudicating Authority is competent to recall the order of initiation of CIRP?

(ii) Whether the liquidation order suffers from material irregularity?"

40

44. Question No. (i) was considered by this Tribunal from paras 22 to 30 and

in para 31 Question No.(i) was answered in following words:

"31. With the aforesaid discussion, we are of the view that in the facts of present case the Adjudicating Authority is not competent to recall the order of initiation of CIRP."

45. This Appellate Tribunal held that Adjudicating Authority was not

competent to recall its order dated 15.03.2019 thus has affirmed the order

dated 08.11.2020 passed by the Adjudicating Authority rejecting CA 307/2020

filed by the Suspended Directors. Thus, it cannot be said that order of this

Tribunal dated 07.01.2022 was obtained by Respondent No.1 by playing any

fraud. The grounds raised by Counsel for the Applicant to recall the order

dated 07.01.2022 and declare the order as nullity are unfounded. Application

I.A 192 of 2022 thus deserves to be dismissed and is hereby dismissed.

46. In I.A No. 190 of 2022, Applicant has prayed for expunging of certain

events alluded in the order dated 07.01.2022, we do not find any error is

committed by this Tribunal in its judgment dated 07.01.2022 in Company

Appeal (AT) (Insolvency) Nos. 1124-1125 of 2020 regarding facts and events.

Thus, I.A 190 of 2022 is also dismissed.

47. In I.A Nos. 191 and 337 of 2022, Applicant prayed for an order of status

quo, we do not found any merit in I.A Nos. 191 and 337 of 2022. Application 41

I.A Nos. 191 and 337 of 2022 deserves to be dismissed and are hereby

dismissed.

48. Now, we come to Contempt Application (AT) No. 06 of 2022. Learned

Counsel for the Applicant has submitted that submission in Contempt are

those which he has already made in advancing his submission in I.A No. 192 of

2022. We do not find any ground to initiate any contempt proceeding as prayed

in Contempt Application (AT) No. 06 of 2022. Contempt Application (AT) No. 06

of 2022 also deserves to be dismissed. But before we close the Contempt

Application (AT) No. 06 of 2022, it is relevant to notice that in the Contempt

Application (AT) No. 06 of 2022, Applicant has, apart from impleading different

officers of Respondent No.1 from Serial Nos. 2 to 15 even impleaded

Respondent Nos. 16 to 21 who were Advocates of Respondent No.1 in the

Appeal before this Tribunal. Before Serial Nos. 16 to 21, following has been

mentioned by the Applicant:-

"POSSIBLE ADDITIONAL RESPONDENTS/ NON-APPLICANTS

(THE ADVOCATES WHO ACTED IN THE MATTER) WHO MAY

BE DESIRED TO BE ADDED BY THIS HON'BLE TRIBUNAL

(SUO MOTU)"

49. When the Applicant in his above statement states that these are the

Respondents who may be desired to be added by the Tribunal (suo motu), there

was no occasion to implead them in the Application and further the 42

impleadment of Advocates who appeared for Respondent No.1 in the Appeal is

reckless and inappropriate act on behalf of the Applicant. We, thus, order that

the names of Respondent Nos. 16 to 21 be deleted from array of parties in the

Contempt Application (AT) No. 06 of 2022.

50. With the above direction of deletion of Respondent Nos. 16 to 21, the

Contempt Application (AT) No. 06 of 2022 is dismissed.

In result, the I.A Nos. 190, 191, 192 and 337 of 2022 are dismissed as

well as Contempt Application (AT) No. 06 of 2022.

[Justice Ashok Bhushan] Chairperson

[Dr. Ashok Kumar Mishra] Member (Technical)

New Delhi Anjali