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Judgment
(Hybrid Mode)
[Per: Jatindranath Swain, Member (Technical)]
The Applicant, Mr. V. Venkata Sivakumar, erstwhile Liquidator of M/s. Rathna Stores Pvt. Ltd. has filed the instant Application, being IA No.1620/2025 under Rule 11 of National Company Law Appellate Tribunal Rules, 2016, praying for recall of the order passed by it dated 25.09.2025 in CA (AT) (CH) (Ins) No.352/2023.
Brief facts of the case are that the Applicant herein, that the Corporate Debtor (CD), M/s. Rathna Stores Pvt. Ltd., was admitted into liquidation by order of Ld. NCLT dated 14.08.2018. The Applicant took over as Liquidator of the said CD on 11.09.2018. He took steps to secure the asset of the CD, which is a 7-floor building measuring 33,000 sq. ft., standing on a land of 8,000 sq. ft., got the attachment made by Income Tax department on the said property removed and disposed of the said property, realised the proceeds and distributed the same on 06.09.2019 as per Section 53 of the I & B Code, 2016, which included his remuneration to the extent of Rs.92.34 lakh. Later, on 30.10.2021, he filed an Application before Ld. NCLT seeking exclusion of a period of 7 months from computation of liquidation period and consequently, claiming an additional remuneration of Rs.30.49 lakh on the ground that his remuneration will have to be reworked as per higher slabs as per Regulation 4 of the Liquidation Regulations, 2016, on account of the said exclusion of time. Ld. NCLT rejected the said application IA(IBC)/1175/2021 vide its order dated 12.09.2023, observing that the Liquidator has already received his fee as per Regulation 4 of Liquidation Regulations, and that the said fee has been paid to him in priority over the stakeholders and that the exclusion of period sought for by him, is devoid of merits.
Aggrieved by the said order, the Applicant herein, filed an Appeal before this Appellate Tribunal in CA (AT) (CH) (Ins) No.352/2023, alleging that Ld. NCLT disregarded the ratio laid down by Hon’ble NCLAT by its judgement dated 02.11.2022 in the matter of SIDBI v. Vijendra Sharma CA(AT)(Ins) No. 1027/2021, that Ld. NCLT misunderstood his prayer as extension of time whereas he had prayed for exclusion of time on account of operation of factors beyond his control and that it disregarded his effort in clearing defects and litigations in respect of the property stating that it is an item of work done in ordinary course of the discharge of duties as the Liquidator.
This Appellate Tribunal after hearing both sides, dismissed the Appeal on the ground that Ld. NCLT has not erred in holding that no material has been provided to show that the steps taken by the Applicant herein while realising the assets of the liquidation estate are not routine in nature, that the time spent in taking possession of the assets of the liquidation estate and in conducting the cases before the appropriate forums to defend the CD are part of assigned duties of the Liquidator and hence it cannot be considered for exclusion, that it is the duty of the Liquidator to rectify the defects in the said assets to make them saleable and that when he had claimed and realised his remuneration in 2019 itself without praying for exclusion of time at that point of time, praying for exclusion of time in 2021, two years after completing the distribution of the proceeds of the liquidation estate is rather in the nature of an afterthought. Accordingly, this Appellate Tribunal, held that there is no question of Ld. NCLT misinterpreting the application of the Appellant for exclusion of time as extension of time and that Ld. NCLT was very clear in what was being applied for and what it thought of such prayer and proceeded to dismiss the Appeal holding it to be without merits.
The instant Application for recall of the said order of this Appellate Tribunal dated 25.09.2025 has been filed on the basis that the said impugned order suffers from several errors on face of record. They are tabulated below: -
in holding the decision of SCC final under Regulation 4(2);
non-application of mind in distinguishing between extension and exclusion;
factual mistake in assuming completion of liquidation;
comparing reasons beyond the control of petitioner with extraordinary work which was never claimed by the Applicant;
wrongly interpreting the precedents cited which confirms the need for exclusion of time in situations as mentioned by the Applicant;
Before dealing with the recall application of the Applicant, it will be necessary to note the limited grounds under which this Appellate Tribunal has permitted in law to entertain a recall application. The principles of the same have been laid down by the 5-member Bench of this Appellate Tribunal in the matter of Union Bank of India v. Dinkar T. Venkatasubramanian and Ors. in IA/3961/2022 in CA(AT)(Ins) No. 729/2020 dated 25.05.2023 [(2024) 248 Comp Cas 108: 2023 SCC Online NCLAT 283]. In the said Judgement, the 5-member Bench after discussing various judgements of Hon’ble Supreme Court and NCLAT, has set out the said principles in para-16 of the judgement which reads as under: -
“16.In another judgement of Budhia Swain v. Gopinath Deb, Hon’ble Supreme Court has dealt with the power to recall. In paragraphs 5, 6, 7 and 8 following has been laid down (page 400 of [1999]4 SCC):
“5.The only provision for review in the act is to be found in section 38A whereunder a review may be sought for within one year from the date of the decision or order but only on the ground that there has been a clerical or arithmetical mistake in the course of any proceedings in the Act. It was also conceded by the learned counsel for the appellants that the proceedings initiated by the appellants were certainly not under section 38A. It was also conceded at the bar that the subsequent action of the O.E. A. Collector could be sustained only if supportable by the power to recall.
6.What is a power to recall? Inherent power to recall its own order vesting in Tribunals or courts was noticed in Indian Bank v. Satyam Fibres (India) P. Ltd. [(1996) 5 SCC 550; (1998) 92 Comp Cas 149 (SC).] vide paragraph 23, this court has held that the courts have inherent power to recall and set aside an order (i) obtained by fraud practised upon the court, (ii) when the court is misled by a party, or (iii) when the court itself commits a mistake which prejudices a party.
In A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602.] (vide paragraph 130), this court has noticed motions to set aside judgments being permitted where:
(i)a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented,
(ii)a judgment was obtained by fraud,
(iii)a party has had no notice and a decree was made against him and such party approaches the court for setting aside the decision ex debito justitiae on proof of the fact that there was no service.
7.In Corpus Juris Secundum (Volume XIX) under the Chapter ‘judgment—opening and vacating’ (paragraphs 265 to 284 at pages 487 to 510) the law on the subject has been stated. The grounds on which the courts may open or vacate their judgments are generally matters which render the judgment void or which are specified in statutes authorising such actions. Invalidity of the judgment of such nature as to render it void is a valid ground for vacating it at least if the invalidity is apparent on the face of the record. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppel. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results.
8.In our opinion a Tribunal or a court may recall an order earlier made by it if:
(i)the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent,
(ii)there exists fraud or collusion in obtaining the judgement,
(iii)there has been a mistake of the court prejudicing a party, or
(iv)a judgement was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented.
The power to recall a judgement will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgement may be lost by waiver, estoppel or acquiescence.”
Thus, a recall application is sustainable only when either of the elements as narrated above are present in the facts and circumstances of the same. In the present case, the Applicant alleges of errors in the face of record and that this Appellate Tribunal has failed to take cognizance of the same. We have carefully gone through the grounds raised by the Applicant to the instant Application. We find that all the points raised by the Applicant have been discussed thoroughly in our Judgement dated 25.09.2025 in arriving at the conclusion which the Applicant seeks to challenge. Further, none of the grounds which have been listed in the ratio laid down by Hon’ble Supreme Court in the matter of Budhia Swain (supra), which are lack of jurisdiction, fraud or collusion, mistake of the court prejudicing a party, non-joinder of necessary party or on grounds of violations of principles of natural justice, have been made out. Therefore, we are of the view that the instant application seeks review of this Tribunal’s order in the garb of recall application, which is not permissible. The Applicant has the right and opportunity of filing an appeal against our order; however, he cannot seek recall as an alternative in view of the ratios cited above.
Considering the above, we find no reason to recall the order of this Tribunal dated 25.09.2025. Accordingly, the application IA No. 1620/2025 is ‘dismissed’. No order as to costs.