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

The Interlocutory Application I.A. No. 3961 of 2022 filed by

the Applicant Financial Creditors of M/s Amtek Auto Limited

through State Bank of India in CA(AT)(Insolvency) No. 729 of 2020

is an application for recalling the order dated 27.1.2022 in

CA(AT)(Insolvency) No. 729 of 2020, filed by Union Bank of India

I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 1 of 22 (erstwhile Corporation Bank) & Ors. under Rule 11 of the National

Company Law Appellate Tribunal Rules, 2016 (hereinafter called

"NCLAT Rules") pursuant to the liberty granted by this Tribunal

vide order dated 2.9.2022 in Review Application No.01 of 2022.

2. In brief, the facts of the case relevant to the present

Application IA No. 3961/2022 are as follows:-

(i) On an application filed by Union Bank of India under

section 7 of the Insolvency and Bankruptcy Code,

2016 (in short "IBC") against the corporate debtor -

M/s Amtek Auto Limited, Corporate Insolvency

Resolution Process (in short "CIRP") was initiated

leading to submission of a resolution plan, which was

approved by the Committee of Creditors ("CoC") by a

majority voting share of 70.7% on 11.1.2020.

(ii) Subsequently, the Resolution Professional filed

application I.A. No. 255 of 2020 for approval of the

resolution plan by the Adjudicating Authority and

another IA No. 222 of 2020 was filed by the Union

Bank of India requesting for certain reliefs.

I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 2 of 22

(iii) The Adjudicating Authority vide order dated 9.7.2020

allowed IA No. 255 of 2020 thereby approving the

resolution plan and by the same order dated 9.7.2020

rejected I.A. No. 222 of 2020.

(iv) Aggrieved by the rejection of I.A. No. 222 of 2020, the

Union Bank of India (erstwhile Corporate Bank) filed

Company Appeal (AT)(Insolvency) No. 729 of 2020,

wherein the Financial Creditors of M/s Amtek Auto

Limited was not impleaded as a respondent party.

This Tribunal partly allowed CA(AT)(Insolvency) No.

729 of 2020 by judgment dated 27.1.2022.

(v) The Financial Creditors of M/s Amtek Auto Limited

filed Civil Appeal Diary No. 5609 of 2022 before the

Hon'ble Supreme Court, which was disposed of vide

order dated 1.4.2022, as the Appellant withdrew the

civil appeal with liberty granted to the Appellant to file

a review application before the NCLAT.

(vi) Subsequently the Appellant/Applicant filed Review

Application No. 01 of 2022 before the NCLAT, which

was disposed of by order dated 2.9.2022 holding that I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 3 of 22 while no review application was maintainable before

this Tribunal in the matter, the Appellant, if so

advised, could take recourse to any other remedy

available in accordance with law.

(vii) Subsequently, IA No. 3961 of 2022 was filed by the

Union Bank of India, seeking recall of the judgment

dated 27.1.2022 passed by a three-member bench of

this Tribunal. In view of a judgment of this Tribunal

in Agarwal Coal Corporation Private Limited vs.

Sun Paper Mill Limited & Anr [CA(AT)(Ins) No.

412/2019], wherein it had been held that no review or

recall of a judgment was possible, and it was decided,

after hearing the rival parties, by order dated 9.2.2023

to refer the issues that had arisen in IA No. 3961 of

2022 regarding the existence of the power of "recalling

an order/judgment" to Hon'ble Chairperson of NCLAT

for constituting a larger bench to decide on the

referred issue.

(viii) Consequently, a five-member bench of this Tribunal

was constituted by the order of Hon'ble Chairperson,

NCLAT, which heard the reference made by the three-

I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 4 of 22 member bench in IA No. 3961 of 2022 and passed

order dated 25.5.2023 by which it answered the

question posed to it by stating that this Tribunal has

the inherent jurisdiction to entertain an application for

recall of its judgment on sufficient grounds and also

holding, inter alia, that the judgment of three-member

bench of this Tribunal in Agarwal Coal Corporation

Private Limited vs. Sun Paper Mill Limited &

Anr.(supra) does not lay down the correct law.

(ix) Subsequently, in the light of the above-mentioned

order dated 25.5.2023, this Tribunal heard arguments

in IA No. 3961 of 2022 for necessary orders.

3. We heard the arguments of both the parties and perused the

record with their able assistance.

4. The Learned ASG Mr. Venkataraman appearing for the

Applicant in IA No. 3961 of 2022 has argued that the opening of

Letters of Credit before the commencement of CIRP was not an

issue that could have been considered by the Resolution

Professional and therefore the impugned order dated 27.1.2022 of

this Tribunal, which directs the Resolution Professional to not

deduct the amount of Rs. 34 crores from the share of Union Bank I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 5 of 22 of India was not correct. He has pointed out from the minutes of

the 31st meeting of the CoC dated 7.2.2020 and e-mail

communication dated 21.11.2018 [from Interim Resolution

Professional) for M/s Amtek Auto Limited], and certain other

emails that it was made clear by the IRP that no auto-debit for

payments of the outstanding amounts of Letters of Credit as on

21.11.2018 should be made from the current account of the

corporate debtor. He has further pointed out that the same

advice was reiterated in e-mail dated 26.11.2018 (sent by the IRP

to the Corporation Bank) which was repeated in letter dated

14.12.2018. He has added that in the minutes of 31st CoC

meeting, the matter of recovery of Letters of Credit by Corporation

Bank was discussed, when Resolution Professional had stated that

the Corporation Bank had unduly enriched itself by debiting the

amount of Letters of Credit forcibly from the operating account of

the corporate debtor, which was done despite repeated contrary

advice given by the Resolution Professional to the Corporation

Bank.

5. Mr. Venkataraman, Learned ASG has further pointed out

that it is clearly recorded in the minutes of the 30th and 31st CoC

meetings that the amount forcibly debited by the Corporation

Bank should not be considered as 'interim finance'. He has I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 6 of 22 referred to sub-section (15) of section 5 of the IBC, wherein the

definition of 'interim finance' has been given, to argue that going

by this definition of 'interim finance', the amount debited by the

Corporation Bank cannot be considered as a "financial debt" raised

by the Resolution Professional during the CIRP.

6. The Learned ASG has further referred to clause (a) of sub-

section (13) of section 5 of the IBC to submit that an amount of

interim finance and costs incurred in raising such finance can be

considered as insolvency resolution process costs, but such is not

the case in the present matter. He has further pointed out that

the Resolution Professional is not empowered to decide what is to

be considered as part of insolvency resolution process costs in the

light of the duties of RP and IRP which are laid down in sections 17

and 25 of the IBC respectively. He has submitted that as per

clause (c) of sub-section (2) of section 25, the Resolution

Professional is allowed to raise 'interim finance' subject to the

approval of the CoC, and in the present matter the CoC had not

permitted raising of interim finance. He has also referred to sub-

section (1) of section 28 to buttress the point that the approval of

the CoC is required to raise 'interim finance'. On such basis, he

has argued that the Resolution Professional did not have the

I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 7 of 22 authority to decide the issue of 'interim finance' during the

currency of the CIRP.

7. The Learned ASG has further argued that a commercial

decision was taken by the CoC that an amount of Rs. 34 crores

shall be considered as part of the final payment to the Union Bank

of India, and therefore, it was not up to the Hon'ble NCLAT to vary

or change this decision without hearing the affected party i.e. the

Financial Creditors of M/s Amtek Auto Limited, which had taken

the commercial decision regarding deduction of Rs. 34 crores from

the final payment to Union Bank of India. He has referred to

paragraphs 10.15 and 10.17 of the impugned order wherein it is

incorrectly held that Resolution Professional, and not CoC, should

have decided the issue of amount auto-debited by the Union Bank

of India as 'interim finance'. He has argued that in view of the

decision of the CoC to deduct the amount of Rs. 34 crores (which

was auto-debited by the Union Bank of India) the impugned order

has correctly held that this amount should be deducted from the

final payment to Union Bank of India.

8. The Learned ASG has argued that varying the commercial

decision of CoC to deduct the amount of Rs. 34 crores from the

final payment to Union Bank of India as was directed by Hon'ble I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 8 of 22 NCLAT in its judgment/order dated 27.1.2022 was against the

principle of natural justice, since it was done without giving an

opportunity of hearing to the Financial Creditors of M/s Amtek

Auto Limited.

9. The Learned ASG has brought to our attention the order

dated 25.5.2023 of the five-member bench of this Tribunal in IA

No. 3961/2022 and submitted that the Hon'ble Supreme Court

has upheld the order dated 22.5.2023 while dismissing Civil

Appeal No.4620/2023 filed by the Union Bank of India, whereby

the order of five-member bench of this Tribunal has achieved

finality. He has lastly argued that denial of natural justice in

providing an opportunity of hearing to the Financial Creditors of

M/s Amtek Auto Limited exist constitutes sufficient ground for

recall of impugned judgment dated 27.1.2022, IA No. 3961/2022

may be allowed and fresh hearing in CA(AT)(Insolvency) No. 729 of

2020 may be undertaken by this Hon'ble Tribunal.

10. The Learned Senior Counsel Mr. Gopal Jain appearing for

Respondent Union Bank of India has initiated his arguments by

bringing to our attention a letter dated 8.8.2017 of the RP, by

which he (RP) had advised the Chief Manager of the Corporation

Bank (which was later merged into Union Bank of India) to open I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 9 of 22 the Letter of Credit by debiting from the current cash account of

the corporate debtor, and similar instruction was repeated in

another letter dated 7.8.2018.

11. The Learned Senior Counsel Mr. Gopal Jain has referred to

para 10.24 of the impugned order dated 27.1.2022 to point out

that such action was taken on the advice of RP, which has been

admitted by him and accordingly noted in the impugned order.

He has further pointed out that the amount of Rs. 34 crores

received by the Corporation Bank by opening letters of credit were

actually paid to the third-party vendors and suppliers as and when

such payments became due, in accordance with the terms of the

Letters of Credit, and the Corporation Bank did not appropriate

any amount to itself. He has argued that the present case is,

therefore, not a fit case for recalling the impugned order, and

therefore IA No. 3961 of 2022 may be dismissed.

12. The Learned Senior Counsel Shri Gopal Jain has also argued

that in Civil Appeal Diary No. 5609/2022 filed by the Financial

Creditors of M/s Amtek Auto Ltd. before Hon'ble Supreme Court, a

limited liberty was granted to the Applicants to challenge para

10.28 of the NCLAT's order dated 27.1.2022 by filing a review

I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 10 of 22 application, but now the challenge has been made to the entire

order dated 27.1.2022.

13. Mr. Sanjay Bhatt, the Learned Counsel for the erstwhile

Resolution Professional has adopted the arguments advanced by

the Learned ASG for the Appellant.

14. The main issue that arises in the adjudication of IA No. 3961

of 2022 is whether, in view of the facts and circumstances of the

case and the Order dated 25.5.2023 of the five-member bench of

NCLAT, there are sufficient and cogent grounds for recall of the

Impugned Order dated 27.1.2022.

15. It may be recalled that IA No. 3961 of 2022, which was filed

in CA(AT)(Insolvency) No. 729 of 2020, was considered by a three-

member bench of this Tribunal by order dated 9.2.2023, when

during arguments the legality of the order of a three-member of

this Tribunal in the matter of Agarwal Coal Corporation Pvt.

Limited vs. Sun Paper Mills Limited (2018) 1 SCC 407 was

raised which issue would have bearing on the adjudication of I.A.

3961 of 2022. This bench then decided to refer the issue whether

a judgment/order of this Tribunal could be recalled. The

questions framed for reference are reproduced below :-

I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 11 of 22 "I. Whether this Tribunal not being vested with any power to review the judgment can entertain an application for recall of judgment on sufficient grounds?

II. Whether judgment of this Tribunal in "I.A. No. 265 of 2020 in Company Appeal (AT) (Ins.) No. 412 of 2019, Agarwal Coal Corporation Private Limited Vs Sun Paper Mill Limited & Anr." and "I.A. No. 3303/2022 in Company Appeal (AT) (Ins.) No. 359 of 2020, Rajendra Mulchand Varma & Ors Vs K.L.J Resources Ltd & Anr." can be read to mean that there is no power vested in this Tribunal to recall a judgment?

III. (In the above two judgments this Tribunal has held that this Tribunal cannot recall its judgment in exercise of its inherent jurisdiction) Whether the judgment of this Tribunal in "Agarwal Coal Corporation Private Limited Vs Sun Paper Mill Limited & Anr." and "Rajendra Mulchand Varma & Ors Vs K.L.J Resources Ltd. & Anr." lays down the correct law?

20. Let the papers be placed before Hon'ble Chairperson, NCLAT for constituting a larger bench for considering the above questions."

16. A five-member bench was constituted by order of the Hon'ble

Chairperson of NCLAT, which heard the arguments on the issues

raised in the reference, and provided answers in its order dated

25.5.2023. The relevant paragraphs of this order are reproduced

below :-

"20. The above judgments of the Hon'ble Supreme Court clearly lay down that there is a distinction between review and recall. The power to review is not conferred upon this I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 12 of 22 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.

xx xx xx xx

23. Next judgment of this Tribunal in "Rajendra Mulchand Varma & Ors. vs. K.L.J Resources Ltd. & Anr." was a judgment where judgment of "Agarwal Coal Corporation Private Limited" was relied. In Para 8 of the said judgment following observations have been made:

"8. It is noted that in the matter of Agarwal Coal Corporation Pvt. Limited vs. Sun Paper Mills Limited (2018) 1 SCC 407 passed by the NCLAT, it is held that "in the absence of any power of 'review' or 'recall' vested with the Adjudicating Authority/Appellate Authority, any order/judgment passed by it cannot be either reviewed or recalled". It is further held by NCLAT in the same judgment that a judgment passed by the Tribunal becomes 'conclusive', 'final' and 'binding' and the Applicant cannot take recourse to rule 11 of the NCLAT Rules, 2016, which provide 'inherent powers'.

The same judgment held that appropriate course of action open to the applicant is to approach the Hon'ble I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 13 of 22 Supreme Court under section 62 against the said judgment, if the Applicant so desires."

24. After relying on judgment of "Agarwal Coal Corporation Private Limited", the three-member bench held that prayer made in the I.A. No. 3303/2022 cannot be accepted. Para 13 is as follows:

"13. In the light of the above, we are of the opinion that this tribunal cannot accept the prayer made by the Applicant in IA No. 3303 of 2022 using the power given in rule 11 of the NCLAT Rules, 2016. We follow the judgment of the coordinate bench of this Tribunal given in the case of Agarwal Coal Corporation Pvt. Limited vs. Sun Paper Mills Limited (supra) where this Tribunal has held that NCLAT does not have power to review or recall its own order, in the absence of any specific provision in the IBC. Therefore, the application filed by the Applicant bearing IA No. 3303 of 2022 is rejected."

25. Judgment of this Tribunal in "K.L.J Resources Ltd. & Anr." makes it clear that that judgment only followed the judgment in "Agarwal Coal Corporation Private Limited", which we have already noticed above.

26. In view of the law laid down by Hon'ble Supreme Court which holds that the Tribunal has inherent power to recall its judgment on appropriate grounds, the three-member bench judgment in "Agarwal Coal Corporation Private Limited" and "K.L.J Resources Ltd. & Anr." observing that the Tribunal does not have power to recall cannot be approved. The three- member bench judgments of this Tribunal insofar as observation that this Tribunal has no power to review, no exception can be taken to that part of the judgment. We, however, hold that the judgment laying down that this Tribunal has no power to recall the judgment does not lay down correct law.

I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 14 of 22

27. In view of the foregoing discussion, we answer the questions referred to this Bench in following manner:

I: This Tribunal is not vested with any power to review the judgment, however, in exercise of its inherent jurisdiction this Tribunal can entertain an application for recall of judgment on sufficient grounds.

II & III: The judgment of this Tribunal in "Agarwal Coal Corporation Private Limited vs Sun Paper Mill Limited & Anr." and "Rajendra Mulchand Varma & Ors vs K.L.J Resources Ltd & Anr." observing that this Tribunal cannot recall its judgment does not lay down the correct law "

17. As we consider IA 3961 of 2022 for decision, we are

conscious of the fact that some arguments have been made by the

Learned Senior Counsels on which our views may have bearing on

the adjudication of CA(AT)(Ins) 729 of 2020 should we were to

allow the application for recall of order dated 27.1.2022. We

would like to make it clear that any view or opinion made by us

while disposing of the present application may not be construed as

expression of opinion on the merits of the appeal, should it be

decided to re-hear it after recalling the order dated 27.1.2022.

18. In answering the questions under reference, the five-member

bench of this Tribunal, inter alia, considered the judgment of the

Hon'ble Supreme Court in Grindlays Bank Ltd. vs. Central

Government Industrial Tribunal & Ors. [1980 (Supp) SCC 420],

I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 15 of 22 wherein the following was laid down in paragraph 6 of the order

dated 25.5.2023 :-

"6. We are of the opinion that the Tribunal had the power to pass the impugned order if it thought fit in the interest of justice. It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well-known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary."

19. We have perused the order dated 1.4.2022 of the Hon'ble

Supreme Court, whereby the appellant was granted permission to

withdraw the Civil Appeal Diary No. 5609/2022 with 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 with all the

contentions available to the parties to be kept open. The Order

dated 1.4.2022 of Hon'ble Supreme Court is reproduced below:-

"ORDER

The application for leave to appeal is allowed.

Shri Shanjay Bhyatt, 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, I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 16 of 22 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."

20. On the basis of this liberty granted by Hon'ble Supreme

Court, the Financial Creditors of Amtek Auto Ltd. filed Review

Application No. 01/2022 before this Tribunal which was disposed

of by order dated 2.9.2022. The relevant portion of this order is

reproduced below:-

"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

I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 17 of 22 remedy in accordance with law in case it is still aggrieved against the order dated 27.01.2022 or a part of it."

21. On the ground that the Applicant was allowed to take any

other remedy available under law, the Appellants filed an

Interlocutory Application I.A. 3961 of 2022 under Rule 11 of the

NCLAT Rules which is the present application under consideration.

22. On the basis of the above-stated order, the Learned Senior

Counsel for Respondent has claimed that Hon'ble Supreme Court

had given limited liberty to the Applicant to raise the issue relating

to Para 10.28 of the Order dated 27.1.2022 of this Tribunal. In

this connection, we note that para 10.28 of the Impugned Order

dated 27.1.2022 has made an inference that the Resolution

Professional made an erroneous recommendation to the CoC. In

arriving at such an inference, the Hon'ble NCLAT made an

observation in Para 10.17 of the same order that RP failed to

exercise its jurisdiction, but left it to the CoC to decide the issue.

In the Impugned Order dated 27.1.2022the finding that the RP,

instead of the CoC, should have exercised jurisdiction in deciding

whether to treat Rs. 34 crores as CIRP cost or not is a natter to be

examined by us. The matter as to how Rs. 34 crores should be

treated became part of the Resolution Plan, which once it came to

be approved by the CoC got the stamp of it being 'commercial I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 18 of 22 wisdom' of the CoC. Hence, we are of the view that in hearing the

'recall' application we should consider the entire judgment dated

27.1.2022 as the powers of RP and CoC, are also connected.

23. The Learned Senior Counsel for the Respondent has cited

the judgement of Hon'ble Supreme Court in the matter of M.K.

Rajagopalan V. Dr. Periasamy Palani Grounder & Anr.[2023

SCC OnLine SC 574] in support of his contention that in

upholding the commercial wisdom of the CoC, it should be seen

that the CoC has examined all the relevant information available

before it. We note from the minutes of the 30th meeting of the CoC

dated 5.2.2020 that the RP had placed various options as to how

the amount recovered from Letters of Credit should be treated and

we find that the CoC had applied its mind to the various options

for treatment of the said amount of Rs. 34 crores and while

considering and approving the resolution plan in the 31st CoC

meeting on 7.2.2020 taken a conscious commercial decision in the

matter.

24. It is noted that the judgment dated 25.5.2023 of the five-

member bench of this Tribunal was assailed before the Hon'ble

Supreme Court in Civil Appeal No. 4620 of 2023, wherein, while

I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 19 of 22 dismissing the civil appeal, the Hon'ble Supreme court held as

hereunder:-

"We are in agreement with the view taken by the Five Judges Bench of the NCLAT and thus find no reason to interfere with the impugned judgment.

Insofar as the endeavour of learned counsel for the appellant to urge on the facts of the case is concerned, that would be a matter to be considered, dependent on the fate when the matter is placed before the appropriate Bench, to be decided on merits.

The Civil Appeal is dismissed."

25. We thus note that the order dated 25.5.2023 of this Tribunal

has achieved finality.

26. In the light of order dated 25.5.2023, in the facts and

circumstances of the present case, we are of the view that since

the Financial Creditors of M/s Amtek Auto Limited were not a

party before this Tribunal when it was considering

CA(AT)(Insolvency) No. 729 of 2020, which was disposed of vide

judgment dated 27.1.2022, by which the Resolution Professional

was directed not to deduct the amount of Rs. 34 crores, it was

necessary that the Financial Creditors of M/s Amtek Auto Limited

(who comprised the CoC) should have been heard before making

an order, which was a variance with the commercial decision of the

I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 20 of 22 CoC. In doing so, this Tribunal did not follow the dictum that 'no

one shall be Condemned unheard'.

27. In result, we order the following:-

(i) The judgment dated 27.1.2022 of three-member bench

of this Tribunal in CA(AT)(Insolvency) No. 729 of 2020

is hereby recalled.

(ii) The Applicant in IA No. 3961 of 2022, namely

Financial Creditors of M/s Amtek Auto Limited

through State Bank of India may be impleaded as a

party, while rehearing CA(AT)(Insolvency) No. 729 of

2020, after recalling the order dated 27.1.2022.

(iii) IA No. 3961 of 2022 is disposed of accordingly with the

above-stated directions.

28. We have decided the issue of 'recall' of judgment/order dated

27.1.2022 by this order. At the expense of repetition, we would

like to make it abundantly clear that the adjudication of CA (AT)

(Ins.) No. 729/2020 after recall of order dated 27.1.2022 shall not

be influenced in any manner by any comment, view or opinion

I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 21 of 22 expressed by us that may have bearing on the merits of the main

appeal.

(Justice Ashok Bhushan) Chairperson

(Dr. Alok Srivastava) Member (Technical)

(Mr. Barun Mitra) Member (Technical)

New Delhi 4th October, 2023

/aks/

I.A. No. 3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020 Page 22 of 22