Union Bank Of India Erstwhile ... vs Mr. Dinkar T. Venkatasubramanian

Financial Creditors of Amtek Auto Ltd. ...Appellant Through Dinkar T. Venkatasubramanian

Versus

Union Bank of India ...Respondents (Erstwhile Corporation Bank) & Ors.

For Appellant: Mr. Ramji Srinivasan, Sr. Adv. with Mr. Sanjay Bhatt, Advocate in Review application For Respondents: Mr. Gopal Jain, Sr. Adv. with Mr. Alok Kumar, Ms. Somya Yadav, Mr. Manan Gambhir, Advocates in I.A No. 2229 of 2022/R1, UBI Mr. Sumant Batra, with Ms. Ruchi Goyal, Advocates for RP Mr. Arpan Behl, Sparsh Prasad, Advocate for R2

ORDER

Per: Justice Rakesh Kumar Jain.

02.09.2022: This Review Application has been filed for review of the

order dated 27.01.2022 passed in Company Appeal (AT) (Ins.) No. 729 of

2020 alleging that liberty has been granted by the Hon'ble Supreme Court

vide its order dated 01.04.2022 in Civil Appeal No. 2663 of 2022 (Civil

Appeal (diary) No. 5609 of 2022) filed by the Appellant.

2. Counsel appearing on behalf of the Appellant has submitted that the

Appellant, was not a party in CA (AT) (Ins) No. 729 of 2020 but the Appeal

had to be filed before the Hon'ble Apex Court because of some observations

made in Para 10.28 of the said order against the RP.

3. It is submitted that in order to challenge the said order including Para

10.28, an application was filed for seeking leave to appeal which was

allowed by the order dated 01.04.2022, Civil Appeal number was assigned

to the appeal and the Hon'ble Supreme Court passed the following orders on

01.04.2022:-

"The application for leave to appeal is allowed. Shri Shanjay Bhatt, learned counsel appearing on behalf of the appellant seeks permission to withdraw the present appeal with a liberty to file a review application before the National Company Law Appellate Tribunal, Principal Bench, New Delhi (NCLAT) on the observations made by it in para 10.28 of the impugned judgment. The permission is accordingly granted. The Civil Appeal stands dismissed as withdrawn with the above liberty. All the contentions which will be available to the parties are kept open."

4. Counsel for the Appellant has submitted that the present review

application has been filed in pursuance of the aforesaid order.

5. On the other hand, Counsel appearing on behalf of the Respondent

has submitted that though the aforesaid order was passed by the Hon'ble

Supreme Court but there is no provision in the Insolvency and Bankruptcy

Code, 2016 (in short 'Code') for filing such an application. It is submitted

that until and unless the remedy of review is provided in the statute, it

cannot be invoked. It is also submitted that as a matter of fact the appeal was withdrawn by the Appellant before the Hon'ble Supreme Court and at

that time permission was sought to file review application which was

granted.

6. We have heard Counsel for the parties and perused the record with

their able assistance.

7. It is now well settled that an application for review against the order of

the Tribunal can only be maintained if the remedy of review is provided in

the Code.

8. In the order dated 01.04.2022, passed by the Hon'ble Supreme Court,

permission was granted to the Appellant as sought by it to file the review

application but it does not mean that the review application is maintainable

before this Tribunal in the absence of provision of review in the Code which

is a complete in itself.

9. Faced with this difficulty, Counsel for the Appellant has submitted

that he has invoked Rule 11 of the NCLAT Rules, 2016 which provides

inherent powers to this Tribunal. In this regard, Counsel for the Respondent

has submitted that the said Rule may be invoked by the Appellant by way of

an appropriate proceedings but in so far as the present application is

concerned it is confined to review in terms of the order of the Hon'ble

Supreme Court.

10. We are one with the argument raised by Counsel for the Respondent

in this regard and thus, it is hereby held that no review application is

maintainable before this Tribunal as there is no provision for review in the

Code. However, the Appellant, if so advised, may take recourse to its other remedy in accordance with law in case it is still aggrieved against the order

dated 27.01.2022 or a part of it.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical)

[Mr. Naresh Salecha] Member (Technical)

SC/RR