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Judgment
O R D E R
Per: Justice Rakesh Kumar Jain; (Oral)
16.12.2024: This appeal is directed against the order dated 08.11.2024 by which I.A. No. 1679 of 2024 filed by the Liquidator has been disposed of by imposing a cost of Rs. 10 Lac which has been ordered to be deposited in the Prime Minister relief fund.
CP (IB) No. 149 of 2017 was filed under Section 7 of the Code, by Bank of Baroda against Varia Engineering Pvt. Ltd. (CD) which was admitted on 21.12.2017.
I.A. No. 362 of 2018 was filed for liquidation which was allowed on 22.07.2019 and liquidator was appointed on 07.08.2019.
I.A No. 665 of 2021 was filed on 17.09.2021 under Section 54 of the Code, 2016 for the dissolution of the Corporate Debtor on the ground that assets of the CD have already been sold and the amount has been realised and distributed.
The Appellant filed the application bearing I.A No. 1679 of 2024 to condone the delay of 283 days in filing the application from 09.01.2024 to 18.10.2024 being the duration of period from the date of withdrawal of dissolution application and for the grant of extension of the period of liquidation from 10.01.2024 to 31.03.2025.
In the said application, it has been recorded by the Tribunal that Counsel for the appellant has agreed to pay the cost for the lapse on its part. On this premise, the Tribunal while condoning the delay, imposed the cost of Rs. 10 lac.
Since, it is an order which has been suffered on the statement of the Counsel for the Appellant/Liquidator, therefore, at the very outset, we have asked the Counsel for the Appellant as to how the appeal against the consent order is maintainable. In this regard, he has drawn our attention to one of the ground taken in the appeal that “the Learned Adjudicating Authority has erred in recording in the impugned order about the consent of the Ld. Counsel of the Appellant for making payment of the cost”. It is submitted that no such consent was given. In this regard, he has submitted that he would rather file an application before the same bench for recalling of this part of the order in view of the decision of the Hon’ble Supreme Court in the case of State of Maharashtra vs. Ramdas Shrinivas Nayak & Anr. (1982) 2 SCC 463 in which the Hon’ble Supreme Court has observed that “Statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there.”
In view of the aforesaid facts and circumstances, the present appeal is hereby disposed of, relegating the Appellant to avail its remedy of recall of the order on the alleged premise that the Appellant had never accepted its lapse nor consented to pay the cost as recorded.
Needless to mention that if, any such application is filed by the Appellant before the Tribunal, the Tribunal shall pass a speaking order. However, it is made clear that we have not touched the merit of the case and no observation has been made as such.