Tulip Hotel Private Limited (The ... vs J C Flowers Asset Reconstructions Pvt. ...

Tulip Hotel Pvt. Ltd. ...Appellant(s)

Versus

J C Flowers Asset Reconstructions Pvt. Ltd. & Anr. ...Respondent(s) Present: For Appellant : Mr. Pawan Upadhyay, Ms. Meenakshi Rawat, Mr. Rajesh Chhetri, Mr. Raghav Anand, Advocates. For Respondents : Mr. Abhishek Anand, Mr. Karan Kohli, Ms. Palak Kalra, Mr. Ishaan Dhingra, Advocates.

ORDER

(Hybrid Mode) 26.09.2024: I.A. No. 6614 of 2024

This application has been filed by the Applicant/Appellant praying for

following reliefs:

"a) Allow the present Application and recall the judgment dated 09.04.2024 passed by this Hon'ble Tribunal in the subject appeal, i.e. Company Appeal (AT) (Ins) No. 1146 of 2023, and;

b) Decide the subject appeal after considering the material submission/ground of the Appellant that the purported corporate guarantees on the basis of which the alleged 'default' has been established against the Corporate Debtor are bad in law being in contravention to Section 186(2)(b) of the Companies Act, 2013 and other ancillary submissions, and;

c) This Hon'ble Tribunal may be pleased to set aside the admission order dated 16.05.2023 passed by the Adjudicating Authority admitting the Corporate Debtor into CIRP on the basis of the alleged 'default' established against the Corporate Debtor in terms of the two purported corporate guarantees which are bad in law, void, forged and fabricated, and;

d) Grant ad-interim ex-parte stay on the operation of the admission order dated 16.05.2023 passed by the Adjudicating Authority 'Hon'ble NCLT, Mumbai' in CP (IB) No. 05/MB-IV/2020, and;

e) Pass an order staying the consideration of and passing of any orders by the Adjudicating Authority 'Hon'ble NCLT, Mumbai' in the liquidation application IA (IBC) (LIQ)/08(MB) 2024 in CP (IB) No. 05/MB-IV/2020, and;

f) Pass any or such other Order(s) as this Hon'ble Appellate Tribunal may deem fit and appropriate in the facts and circumstances of the present case".

2. The appellant had filed the appeal challenging the order passed by

NCLT dated 16.05.2023 by which order Adjudicating Authority has admitted

Section 7 application. The appeal was heard by this Tribunal and by detailed

Judgment dated 09.04.2024, the appeal was dismissed.

3. The appellant has in the application has filed the copy of the order

dated 05.08.2024 passed by Hon'ble Supreme Court in Civil Appeal Diary

No. 24245 of 2024 which appeal was filed against the Judgment of this

Tribunal dated 09.04.2024. Hon'ble Supreme Court in the said appeal

passed following order on 05.08.2024.

"The Learned Senior Counsel appearing for the appellant seeks permission to withdraw the appeal on the ground that the appellant wants to file appropriate proceedings before the National Company Law Appellate Tribunal, New Delhi on the ground that certain submissions made by the appellant have not been considered.

Accordingly, the Civil Appeal is disposed of as withdrawn".

4. From the order of the Hon'ble Supreme Court it is clear that Civil

appeal was withdrawn by the appellant on the statement made by the

Counsel for the Appellant that appellant want to file appropriate proceeding.

5. The appeal which was filed by the appellant in CA (AT) (Ins) No. 1146

of 2023 was heard and after consideration of submissions raised by the

appellant the appeal was dismissed.

6. Five Member Bench of this Tribunal in Union Bank of India (Erstwhile

Corporation Bank) vs. vs. Dinkar T. Venkatasubramanian and Ors. 2023 in

I.A. No. 3961 of 2022 in CA (AT) (Ins) No. 729 of 2020, SCC Online NCLAT

283: (2024) 248 Com Cas 108: (2023) 175 CLA 40 decided on 25.05.2023

has ruled on the jurisdiction of this Tribunal by the review/recall of the

Judgment. In paragraph 20 of the Judgment following has been observed:

"20. The above judgments of the Hon'ble Supreme Court clearly lays down that there is a distinction between review and recall. The power to review is not conferred upon this Tribunal but power to recall its judgment is inherent in this Tribunal since inherent power of the Tribunal are preserved, powers which are inherent in the Tribunal as has been declared by Rule 11 of the NCLAT Rules, 2016. Power of recall is not power of the Tribunal to rehear the case to find out any apparent error in the judgment which is the scope of a review of a judgment. Power of recall of a judgment can be exercised by this Tribunal when any procedural error is committed in delivering the earlier judgment; for example; necessary party has not been served or necessary party was not before the Tribunal when judgment was delivered adverse to a party. There may be other grounds for recall of a judgment. Well known ground on which a judgment can always be recalled by a Court is ground of fraud played on the Court in obtaining judgment from the Court. We, for the purpose of answering the questions referred to us, need not further elaborate the circumstances where power of recall can be exercised".

7. We do not find any ground in the present application on the basis of

which the Judgment of this Tribunal dismissing the appeal on the merits

after hearing the appellant could be recalled.

8. We thus are of the view that the prayers made in the application

cannot be accepted.

9. The application is rejected.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) sr/nn