AI Structured Summary
Not yet generated for this judgment
Judgment
O R D E R
Oral Judgment : Justice Sharad Kumar Sharma, Member (Judicial):
These are two Company Appeals being Company Appeal (AT) (CH) (INS) No. 100 / 2025 and Company Appeal (AT) (CH) (INS) No. 101 / 2025 are accompanied with IA No. 276 / 2025, praying for a condonation of 99 days of delay, which has chanced in re-filing the Appeal.
Company Appeal (AT) (CH) (INS) No. 101 / 2025 is accompanied with a Condone Delay Application in re-filing the Appeal being IA No. 278 / 2025, seeking condonation of 30 days of delay in re-filing.
In each of these appeals, the number of days of delay which has been sought to be condoned in re-filing happens to be 99 days and 30 days respectively.
The learned counsel for the Appellant had assigned reasons for delayed preference of the Appeal, by raising a pleading to the said effect, in Para Nos. 2 & 3 of the respective Applications, praying for a condonation of delay, on the aforesaid pleaded grounds.
There are three reasons to accept the request made for condonation of delay:
That the reason given in the application seems to be satisfactory;
Aspect of re-filing is exclusively an issue between the Appellant and this Appellate Tribunal; and
The reasons for delay is on the ground of inability of the counsel, that a litigant should not to be made to suffer because of the inability of the counsel. Hence, the delay which has chanced in preferring the re-filing of the Company Appeal would stand condoned.
We, with the consent of counsels, had proceeded to hear the learned counsel for the parties on merits of the Appeals. In each of these Company Appeals, the Impugned Order which is under challenge is that of 26.06.2024 as rendered in IA No. 317 / 2024 in CP(IB) No. 144 / BB / 2017 and the order dated 26.06.2024 as passed in IA No. 318 / 2024 in CP(IB) No. 144 / BB / 2017 respectively.
The facts which has emerged from records for consideration and which will be having a very vital bearing on the proceedings of these Appeals, would be that, a Resolution Plan stood approved by an Order of 30.05.2022, as it was passed by the Liquidator, which was subjected challenge to an Appeal before NCLAT, which was dismissed on 28.09.2022.
Being aggrieved against the order passed by NCLAT affirming the Resolution Plan, the Appellant has invoked Section 62 and had filed an Appeal before the Hon’ble Apex Court challenging the Judgment passed by this Appellate Tribunal dated 28.09.2022.
The Company Appeal that has been preferred before the Hon’ble Apex Court was dismissed as withdrawn with the following observations:
``7. At this stage, Ms. Haripriya Padmanabhan, Senior Counsel appearing on behalf of the appellants states that the appellants would wish to withdraw the Civil Appeals in order to enable them to pursue their remedies before the National Company Law Appellate Tribunal. 9. Since the appellant seeks to withdraw the appeals, we dismissed the appeals as withdrawn. 10. We have not expressed any opinion on the course of action which is proposed to be followed by the appellant.’’
On a simpliciter reading of the part of the Judgment of the Hon’ble Apex Court, as extracted above, the inference of the Hon’ble Apex Court Judgment dated 11.03.2024 in Civil Appeal No. 2406 / 2024 would be;
That the Appeal preferred under Section 62 was withdrawn without inviting a challenge or getting any findings returned on merits to the Judgment passed by NCLAT on 28.09.2022;
When there is a withdrawal of the proceedings and that too a statutory Appeal u/s. 62 of I & B Code, 2016, in such circumstances, such withdrawal of proceedings will ultimately result into an affirmation of the first Appellate Court’s Order (i.e. Order dated 28.09.2022);
The liberty, which was solicited by the Appellant himself before the Hon’ble Apex Court, it was to pursue his remedies before National Company Law Appellate Tribunal (NCLAT) meaning thereby, quite specifically he has restricted his approach in pursuance to the order of the Hon’ble Apex Court by seeking to approach the NCLAT, but, that in itself does not grant him the liberty to file an Application before learned NCLT, Bengaluru Bench, by way of IA No. 317 / 2024, seeking recall of the Order dated 30.05.2022 which happens to be the order of approval of the Resolution Plan by the Liquidator;
Once the approval of the Resolution Plan has been affirmed by the Appellate Tribunal’s Judgment dated 28.09.2022 and the same has not been disturbed on merits by Hon’ble Apex Court under no proposition of law, there can be a scope to file an application subsequently seeking recall of the said Order before the learned NCLT, in the light of the explanation given to Order IX Rule 13.
As far as the Judgment of 28.09.2022 is concerned, being the Appellate Court’s Judgment, that in itself will attain finality in relation to the principal order passed by the Learned NCLT on 30.05.2022, approving the Resolution Plan.
In that eventuality, the Appellant cannot take a leverage while pressing upon these Appeals against the rejection of the Interlocutory Applications preferred by him before the learned NCLT, contending thereof that, since there was an element of fraud, he can still file a Recall Application before the learned NCLT despite the Judgment by Appellate Court itself, because, that would have been the primary Court where the question of fraud could have been gone into.
This contention of the learned counsel for the Appellant is not acceptable for the reason being that, even if the Appellant later on has acquired the knowledge of commission of fraud either at the stage of passing of an Order of the Resolution Plan on 30.05.2022 or even at the stage of passing of the Appellate Court’s order on 28.09.2022 or even at the stage of passing of the Order by the Hon’ble Apex Court on 11.03.2024, that in itself will not make the Application IA No. 317 / 2024, to be maintainable, owing to the fact that rightly or wrongly the Judgment of approval of the Resolution Plan by the learned Adjudicatory Authority dated 30.05.2022 has already been affirmed and that affirmation stands stamped and finalised by the Hon’ble Apex Court with the withdrawal sought by the Appellant of the Appeal which was filed under Section 62 of I & B Code, 2016.
Hence, in these eventualities, the very proceedings drawn by the Appellant by filing of an Interlocutory Application before learned NCLT, under the garb of the direction issued by the Hon’ble Apex Court in its order of 11.03.2024 as rendered in Civil Appeal No. 2406 / 2024 would not be maintainable, against a Judgment which has been affirmed by the Appellate Forum, hence, no Recall could lie, under principle of merger, as the Judgment sought to be recalled has merged and stood finalised by the Appellate Court.
Hence, the dismissal of the Applications by the Impugned Order does not suffer from any apparent error, which would call for any interference for the exercise of our Appellate Jurisdiction under Section 61 of the I & B Code, 2016.
The Company Appeal (AT) (CH) (INS) No. 100 / 2025 & Company Appeal (AT) (CH) (INS) No. 101 / 2025 lack merit and the same are accordingly dismissed. All connected pending Interlocutory Applications, if any, would stand closed.