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Judgment
ORDER
27.07.2022: Heard Learned Counsel for the Parties.
Shri Rana Mukherjee, Learned Senior Counsel for the Appellant submits that this Appeal be confined to Company Appeal (AT) (Ins.) No. 855 of 2022 challenging the order dated 10.05.2022. We allow the prayer of the Learned Senior Counsel for the Appellant and consider Company Appeal (AT) (Ins.) No. 855 of 2022 only against the order dated 10.05.2022.
The brief facts of the case necessary to be noticed are:
The Appellant has filed an Application being I.A. No. 4648/2020 under Section 60(5) mentioning that Application under Section 7 of the IBC has been admitted on 05.12.2018. The Appellant has filed an Application for deletion of the scheduled properties which was claimed to belonging to Appellant in the Application at the just above the scheduled properties, following was prayed:-
“WHEREFORE it is prayed that this Hon’ble Tribunal may be pleased to direct removal of the Scheduled Properties from the CIRP Process and deletion of the Schedule Properties from the information memorandum circulated by the Resolution Professional of the respondent in CP No. IB-1083(PB)/2018 and pass such other and further order as deemed fit in the facts and circumstances of the case in the interest of justice and equity.”
The Application came for consideration before the Adjudicating Authority who rejected the same vide order dated 21.12.2021 by following order:-
“The present application under consideration, i.e., I.A. 4648/2020, has been filed by Mr. K.H. Khan & Anr. This bench after careful perusal of the said application has reached the conclusion that the relevant portion of the Application referred to as (“PRAYER”/ RELIEFS SOUGHT”) is missing. Hence, I.A. 4648/2020 stands dismissed.”
The order dated 21.12.2021 indicate that I.A 4648/2020 was dismissed only on the ground that relevant portion of the Application referred to as ‘prayer’/ ‘reliefs sought’ is missing.
Subsequently, the Appellant filed I.A. 52 of 2022 where the Appellant in the Application has mentioned in paragraph 2 about the prayers made in the Application I.A 4648/2020. The Applicant prayed that order dated 21.12.2021 be reviewed and recalled and I.A 4648/2020 be allowed on merits. Application I.A. 52/2022 has been rejected by the Adjudicating Authority observing that there is no power of the review in the Adjudicating Authority.
We have considered the submissions of the Learned Counsel for the parties and perused the record.
The present is a case where although in the Application I.A 52/2022, word ‘review’ has been used but the Applicant was not asking for review of any judgment or finding. The Applicant has prayed for recall of the order dated 21.12.2021 which order proceeded only on mistake that Application does not contain a prayer clause. When Adjudicating Authority has rejected the Application on misconception and has misread the prayer, the said order need to be corrected by the Adjudicating Authority on being pointed out about the error. Present is a case where error was pointed out before the Adjudicating Authority but the same has not been corrected with the observation that the Adjudicating Authority has no power to review. There cannot be any dispute to the proposition that Adjudicating Authority has no power to review its judgment but present is not a case for any review of the judgment rather present was a case of correcting a mistake committed by the Adjudicating Authority of misreading of the Application. In the ends of justice, it requires to be corrected.
We, thus, are of the view that the order dated 10.05.2022 deserves to be set aside and I.A 52/2022 needs to be heard afresh. Earlier order dated 21.12.2021 did not reject I.A No. 4648/2020 on merits and only on the technical ground that it has no prayers. Now the prayers have been pointed out to the Adjudicating Authority. The Adjudicating Authority ought to hear the said Application on the merits after hearing the parties. We make it clear that we are not expressing any opinion on merits of the Application I.A No. 4648/2020 and it is only for the Adjudicating Authority to consider and take decision in accordance with law. The Appeal is allowed.