M/s. Wind Construction Private Limited vs Mr. Ebenezar Inbaraj

Per : Justice Sharad Kumar Sharma, Member (Judicial):

At this stage when this Company Petition was preferred, before this Appellate Tribunal, the Appellant was nomenclatured as ITI Finance Limited.

During the intervening period, the nomenclature of the Applicant / Appellant has undergone a change and for which the Appellant has preferred an Application being IA No. 77 / 2024 and IA No. 78 / 2024 respectively, in the two Company Appeals. The Applicant to the two Review Applications are the resulting entity from the merger of M/s. Wind Construction Private Limited with M/s. Fortune Integrated Assets Finance Limited. The Applicants are Successors in interest.

In each of these two connected Appeals, which are being taken up for consideration in on the Review Application. The change of the nomenclature of the Applicant, since being formal in nature, having no material effect on merits of matter, coupled with the fact that it is not being seriously opposed by the Respondent, the same would stand allowed. Accordingly, the Applicant to the Review Application is permitted to change the nomenclature / description of the Applicant as prayed for in the respective IA Nos. 77 & 78 / 2024, as detailed above. The necessary amendment to be carried within 3 days from today.

Similarly, the Resolution Professional had also undergone a change and now, a new Resolution Professional has been appointed who is named as Ms. Renuka Devi Rangaswamy, so would be the description of the opposite party be amended in the Memo of Appeal, as well as, to the Review Application amending Ms. Renuka Devi Rengaswamy, as Resolution Professional / Respondent herein,

The facts which engages consideration, before this Tribunal, in the instant Company Appeals is that, the Company Appeal, being Company Appeal (AT) (CH) (INS) No. 360 / 2022 M/s. Wind Construction Private Ltd. V. Ebenezar Inbaraj (as described at that time), whereby, the Appellant has impugned the Judgment of 01.07.2022, as it was rendered in IA (IBC) No. 489 (CHE) / 2021, as rendered in IBA / 1099 / 2019, the aforesaid Judgment was subjected to challenge and the same stood adjudicated by this Appellate Tribunal by the Judgment dated 17.10.2022.

In the accompanied Appeal being Company Appeal (AT) (CH) (INS) No. 361 / 2022 M/s. Wind Construction Pvt. Ltd. V. Ebenezar Inbaraj (as described at that time), the challenge given by the Appellant was to the Impugned Order of 01.07.2022, as rendered by the NCLT, Chennai in IA No. 1147 / IB / 2020 in IBA / 1099 / 2019. This Company Appeal stood adjudicated by this Tribunal by the Judgment dated 19.10.2022.

Being aggrieved against the said Judgment, the matter was carried before the Hon’ble Apex Court, at the behest of the Appellant, by way of a Civil Appeal Diary No. (S) 39179 / 2022 – M/s. Fortune Integrated Assets Finance Ltd. (Successor & Transferee Company) V. Ebenezar Inbaraj, it is when the proceedings were taken up before the Hon’ble Apex Court, the Appellant made a statement to withdraw the Civil Appeal, with a liberty reserved for the Appellant to file a Review Application.

The learned counsel for the Review Applicant has harpes upon, this observation, which was made by the Hon’ble Apex Court in its Judgment of 24.01.2023, taking it as if the Hon’ble Apex Court has held that the review would be maintainable, though, it is not as such, as reflected from the Order of the Hon’ble Apex Court itself because, that was the version, which was made and considered by the Hon’ble Apex Court, as it was then extended by the Appellant therein. But, the concluding part of the Judgment of the Hon’ble Apex Court of 24.01.2023, it only records the withdrawal of the Civil Appeal. The Judgment of the Hon’ble Apex Court is extracted hereunder:-

The permission sought by the Review Applicant, before Hon’ble Apex Court was to file Civil Appeal, and not review as apparent from Order dated 24.01.2023.

Hence, it may not be construed to be misunderstood that as if, the Hon’ble Apex Court has granted a liberty to the Appellant to file a Review, it was only the statement, liberty was to file Civil Appeal and not a Review as observed. That could not have been otherwise also, since, the review being a creation of a Statute and there is no provision of review contemplated under I & B Code, 2016, no Review Application, could as such would have been maintainable, against a Judgment decided on merits. Even otherwise also, the Constitutional Courts too, do not hold a power to confer a jurisdiction, which otherwise is not contemplated under the Statute.

The learned counsel for the Applicant while arguing the respective Review Applications, which are listed today for Orders, contends that, as a matter of fact, the Applications have been wrongly titled as `Review Applications’ though, in fact, they happen to be a Recall Application and in context thereto, she has referred to the pleadings raised in the relief clause of the Review Applications and she has drawn the attention of this Tribunal to Para II of the Applications, where the language used is, as if it is a recall of the final Judgments dated 17.10.2022 and 19.10.2022 respectively, rendered by this Appellate Tribunal.

The Applicant to the Review Application, cannot be permitted to take the liberty to have a coloured stand, when particularly she has stated to withdrawn the Civil Appeal, before the Hon’ble Apex Court, by making a statement that, she has chosen to file a review, before the Appellate Tribunal. Hence, the argument extended by the Applicant that, the Review Application should be treated as to be a Recall Application, is an argument, which is not accepted by this Tribunal, while considering the Review Application, since being contrary to her own liberty, which she has solicited, before the Hon’ble Apex Court, and would be beyond the permissible direction of Hon’ble Apex Court.

Even otherwise, if the argument for the learned counsel for the Applicant is taken into consideration, in fact, under the garb of the so-called pretext of ``Recall’’ / ``Review’’, the Appellant cannot be permitted to argue a matter ``de novo’’, which touches the basic facts along with the merit of the adjudication already made by the Tribunal of the Appeal finally by the Judgment of 17.10.2022 and 19.10.2022, as respectively rendered by this Tribunal in the above two cited Company Appeals.

Owing to the fact that the attempt which has been ventured into, to be made by the learned counsel for the Applicant, while pressing upon the Review Applications, while touching upon the finding recorded alleging, that there was a contradiction in the finding recorded in the said Judgment sought to be reviewed. In fact, that there would not be any scope for ``Recall’’ / ``Review’’, as it would not amount to be an apparent error on the face of the record of the Judgment, necessitating to consider a review.

Other aspect, which the learned counsel for the Applicant has argued that the entire proceedings would be bad in the eyes of law, because, the entire amount has been remitted by her. Still, the answer would be that, since, it goes to the merit of the matter, which cannot be left open to be argued at the stage of review, because even if a ``Recall’’ is permitted, that too itself, will have a very limited application, and as already observed above, a ``Recall’’, cannot be construed as to be a substitute for a review.

Owing to the above, we do not find any merit in the Review Application No. 1 / 2023 and Review Application No. 2 / 2023 and accordingly, the same would stand rejected.