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Judgment
M. Venugopal, J
Preface
The Appellants have filed the instant Comp. App.(AT)(Ins) No.438/2021 before this 'Tribunal' as 'Aggrieved persons' being dissatisfied with the Order dated 11.06.2021 in IA No.2034/2021 in CP(IB)No.702(ND)/2018 passed by the 'Adjudicating Authority' (National Company Law Tribunal, New Delhi Bench II).
The 'Adjudicating Authority' (National Company Law Tribunal, New Delhi Bench II) while passing the impugned order in IA No.2034/2021 in CP (IB)No.702(ND)/2018 (filed by the 2nd Respondent/Applicant(Resolution Professional) among other things at paragraph 15 to 23 had observed the following
"15. When we consider both the provisions together, it is seen that under Section 33 of the IBC, Adjudicating Authority is vested with the power to pass the liquidation order. Whereas under Section 34 of the IBC, 2016, the Adjudicating Authority is empowered to appoint the Liquidator.
In the light of the aforesaid provisions when we peruse the order passed by the Adjudicating Authority on 14.06.2019 , we find that the application filed by the Resolution Professional for liquidation under Section 33 of the IBC, 2016 has already been allowed. Vide that Order, the Adjudicating Authority held that "The assets of the Corporate Debtor be put for liquidation as no resolution plan has been received and 270 days are also over." The matter is pending only for appointment of the RP as a liquidator as no decision has been taken by the COC in this regard.
We have refer to the provision for the appointment of liquidator and as per the provision, whenever the Adjudicating Authority pass an order for liquidation of the corporate debtor under Section 33, the Resolution Professional appointed for the corporate insolvency resolution process under Chapter II shall, subject to submission of a written consent by the Resolution Professional to the Adjudicating Authority in specified form, are as the liquidator for the purposes of liquidation unless replaced by the Adjudicating Authority under sub-section (4) of Section 34 of IBC 2016.
Now in the light of the aforesaid provision, we examine the order dated 14. 06.2019.
At this juncture, we again go through the order dated 14. 06.2019passed by this Adjudicating Authority in CA-731/2019 which reveals that the RP had proposed his own name to act as a liquidator in this case. Therefore, the RP had also given his consent. Hence, in view of Section 34(1) of the IBC, 2016, he shall act as a liquidator unless and until replaced by the Adjudicating Authority under Sub Section 4 of Section 34 of the IBC, 2016. And it is also apparent from the order dated 14.06.2019, the Adjudicating Authority has not passed any order under Sub-Section 4 of Section 34 of the IBC, 2016 and the matter was deferred next date.
In view of the aforesaid discussion, we are of the considered view that far as the liquidation order under Section 33(1) of the IBC, 2016 is concerned, the first part of the order dated 14.06.2019 shows that the order of liquidation was passed on two grounds i.e. no resolution plan was received and the period of CIRP was already over. Hence, in view of Section 34(1) of the IBC, 2016, unless the Resolution Professional is replaced under sub-section 4 of Section 34 of IBC, 2016 he shall continue to act as Liquidator.
Therefore, we are of the considered view that so far as the order dated 4. 07.2019 passed in CA/827/2019 is concerned. From the perusal of that order, we notice that the hearing on the point of confirmation and appointment of liquidator under Section 34(4) of the IBC, 2016 pending for consideration before this Adjudicating Authority was deferred. Nor the order dated 14.06.2019, by which the liquidation order was passed, has been recalled.
It is also the admitted position of law that there is no power for review of order under the IBC and once the liquidation order is passed by this Adjudicating Authority on 14.06.2019, there is no scope to recall. The subsequent order dated 04.07.2019 cannot be read as an order of recall of the order of liquidation, rather it can be treated as an order which deferred the matter that was for consideration i.e. confirmation of the liquidator under Section 34(4) of the IB C, 2016 only.
Hence, we find no force in the contention of the Applicant and no reason to give any direction to the applicant or the COC in respect of the Expression of Interest/Resolution Plan of Resolution applicant M/s Hindustan Aqua Private Ltd received by the Resolution Professional. Therefore, the prayer of the Applicant is hereby rejected."
and dismissed the application.
APPELLANTS SUBMISSIONS
Challenging the order of dismissal dated 11.06.2021 in IA No.2034/2021 filed by the Resolution Professional/2nd Respondent/Applicant passed by the 'Adjudicating Authority' (National Company Law Tribunal, New Delhi Bench II), the Learned Counsel for the Appellant submits that the 'Adjudicating Authority' (National Company Law Tribunal, New Delhi Bench II) had exceeded its 'authority' by reviewing its own order dated 04.07.2019 whereby and whereunder, the said 'Authority' had failed to consider the application (i) CA 607 of 2019 (filed by the Appellants against the decision of the Respondent to wrongly categorised ineligible as per Section 29(A) of the I&B Code, 2016) and (ii) CA No.731/2019 (filed by the Respondent seeking liquidation of the Corporate Debtor) were pending before the Adjudicating Authority.
The Learned Counsel for the Appellant contends that the 'Adjudicating Authority' had failed to appreciate the order dated 04.07.2019 in CA No.827/2019 (filed by the 1st Appellant) wherein it is, inter alia, observed as under:-
........."It was also mentioned that CA 731/2019 had been filed, praying for liquidation. Though liquidation was not confirmed for want of the consent of a Liquidator, it is now being agitated by the applicant that despite a resolution plan having been proposed which was to be considered and disposed of on 8.7.2019, due notice was issued to them for liquidation. Keeping in view of the fact and circumstances of the case, the applicant has some merit in his submission. It would be in the interest of the justice to ensure that the pending application is first disposed off and then liquidation be directed.
Notice of this application as well as CA 731/2019 is accepted by the parties concerned. Reply by the non-applicant be filed."
It is represented on behalf of the Appellants that the 'Adjudicating Authority' (National Company Law Tribunal, New Delhi Bench II) had failed to take into account of the fact that if the order dated 04.07.2019 was not an 'order', whereby the 'Liquidation Order' was kept in abeyance till the disposal of CA 607/2019, then why the 'Adjudicating Authority' (National Company Law Tribunal, New Delhi Bench II) had not passed any order in CA 731/2019 (liquidation application) from 04.07.2019 till the date of passing of the impugned order dated 11.06.2021 in IA No.2034/2021 in CP(IB)No.702(ND)/2018.
The Learned Counsel for the Appellants points out that the 'Adjudicating Authority' had ignored its later order dated 26.08.2019, 19.09.2019, 14.102019, 22.102019, 30.10.2019, 05.11.2019, 22.11.2019, 13.01.2020 and 18.02.2020 which demonstrates that the 'Adjudicating Authority' was continuing with its own directions given in the order dated 04.07.2019, i.e. "keeping in view the facts and circumstances of the case, the Applicant has some merit in his submission. It would be in the interest of justice to ensure that the pending application is first disposed off and then liquidation be directed."
The Learned Counsel for the Appellants comes out with a legal plea that the 'Adjudicating Authority' in the impugned order had travelled beyond its purview/jurisdiction to review the order dated 04.07.2019 in CA 827/2019 and came to an incorrect conclusion that the order dated 04.07.2019 cannot be said to be a recall order of Liquidation. It is represented on behalf of the Appellants that the 'Adjudicating Authority' does not have the power to modify an earlier order, save and except as mentioned in Section 420 of the Companies Act, 2013.
According to the Learned Counsel for the Appellants, as per Section 420(2) of the Companies Act, 2013, any order passed by the 'Tribunal' can be rectified where there is any mistake apparent from the record, within two years from the date of the order and in fact, the impugned order dated 11.06.2021 IA No.2034/2021 in CP(IB)No.702(ND)/2018 passed by the 'Adjudicating Authority' reviewing its order dated 04.07.2019 is an illegal one.
APPELLANTS' DECISIONS
The Learned Counsel for the Appellants to fortify the contentions that an 'Adjudicating Authority' is not conferred with the power to review and varyy its own order, relies on the order dated 10.07.2019 in the matter of Mr. Dinesh Goyal V. DCB Bank Ltd in Comp App.(AT)(Ins) No.702 of 2019 passed by the National Company Law Appellate Tribunal, New Delhi wherein at paragraph 5 had observed that "In the present case, as there is no mistake apparent from the record and in absence of any typographical error, it was not open to the Adjudicating Authority to take any recourse of sub-section (2) of Section 420 of the Companies Act, 2013"
10, The Learned Counsel for the Appellants cites the order dated 02.05.2019 of this Tribunal in Review Application No. 10/2019 in Comp App (AT)No.387/2018 between Mallina Bharathi Rao Vs Gowthami Solvent Oils Ltd & Ors wherein it is observed that and held as under:-
"There is no provision of review under the procedures. Under sub-section (2) of Section 420 only mistake apparent from the record can be corrected. No such mistake apparent on the fact of record is shown by the counsel. The Applicant is reagitating the issues which were earlier before the NCLT and then agitated before this Appellate Tribunal and regarding which we have already passed the judgement. Instead of proceeding to challenge the judgement of this Tribunal, this device has been adopted.
Section 11 of NCLT Rules cannot be so invoked so as to create power to review judgement which power has not been conferred by Legislature."
The Learned Counsel for the Appellants refers to the decision of the Hon'ble Supreme Court in Swiss Ribbons Pvt Ltd Vs Union of India and Others (WP(C) No.99/2018) wherein it is observed that the 'objective of the Code' is re-organisation and not corporate death of the Corporate Debtor by being a recovery legislation for its creditors.
The Learned Counsel for the Appellant takes a plea that CA No.731/2019 (liquidation application) is pending before the 'Adjudicating Authority' wherein vide order 4.7.2019 notice was issued to the Appellants and till date the same is pending. In short, the impugned order dated 11.6.2021 in IA No.2034/2021 in CP(IB)No.702(ND)/2018 was passed in excess of the jurisdiction bestowed on the 'Adjudicating Authority' and the same is liable to be set aside, in the interest of justice.
RESPONDENT'S CONTENTIONS
Conversely, it is the contention of the Learned Counsel for the Respondent/Liquidator that by an Order dated 14.06.2019 passed by the Adjudicating Authority in CA 731/2019 (Liquidation application filed by the Respondent) in CP(IB)No.702(ND)/2018 the liquidation of the Corporate Debtor was initiated and this order of allowing the CA 731/2019 is never questioned by the Appellant or by any other individual before the 'Adjudicating Authority' and that the said order is a conclusive and binding one.
Advancing his argument, the Learned Counsel for the Respondent brings it to the notice of this 'Tribunal' that what remains is the appointment of the Liquidator and indeed, Section 33 of I&B Code, 2016 deals with the 'initiation of liquidation' but Section 34 of the Code separately provides for an appointment or replacement of the liquidator by the 'Adjudicating Authority' upon passing of an order for 'Liquidation'.
The Learned Counsel for the Respondent takes a stand that the Appellants are the former 'promoters' of the 'Corporate Debtor' and in CA 731/2019 (Filed by the Respondent/Liquidator) for initiation of 'Liquidation' proceedings the 'Appellants' were not impleaded and a liquidation order dated 14.06.2019 was passed by the 'Adjudicating Authority' which was not an 'Ex- Parte' one, as averred by the 'Appellants'. Therefore, Rule 49(2) of the National Company Law Tribunal Rules, 2016 is inapplicable to the facts of the present case.
According to the Learned Counsel for the Respondent the impugned order dated 11.06.2021 is just a clarificatory one in regard to the initiation of liquidation and that setting aside the impugned order dated 11.06.2021 IA No.2034/2021 in CP(IB)No.702(ND)/2018 will not set aside the liquidation which was initiated through an order dated 14.06.2019.
The Learned Counsel for the Respondent contends that the 'Committee of Creditors' in its Meeting on 27.05.2019 held that 'Let Hon'ble Tribunal to decide the liquidation proceedings in accordance with Section 33 A(1)(a) of the Code. Hence, the Respondent filed CA 731/2019 for liquidation wherein he gave his consent to function as the Liquidator and that a liquidation order was passed on 14.06.2019.
The Learned Counsel for the Respondent adverts to the fact that the 'Corporate Debtor' is in 'CIRP' and later liquidation, from the year 2018 (three years) and on account of the fact that the Corporate Debtor, has no land or building of its own and the plant and machinery is situated on a leased premises in which the lease rent alone is in excess of Rs.38 lakhs per month, the CIRP and the liquidation cost itself has swelled to an excess of Rs.18 crores etc. Apart from this, the bulk of the valuation of the 'Corporate Debtor' is obtained from the plant and the machinery which is undergoing rapid depreciation on account of the pending CIRP and then liquidation and closure of the plant.
The Learned Counsel for the Respondent points out that various endeavours made during 'CIRP' had failed to result in any eligible Resolution Plan being furnished and that the continuation of the 'liquidation proceedings' is in the interest of the 'Corporate Debtors' and its stakeholders. If the liquidation proceedings are not continued, then an irreparable loss and prejudice will be caused to their interests.
The Learned Counsel for the Respondent submits that more than 800 days had elapsed after the expiry of 270 days and in such a scenario, placing the liquidation back to 'CIRP' shall be against Law.
RESPONDENT'S CITATIONS
The Leaned Counsel for the Respondent refers to the decision of the Hon'ble Supreme Court in Ram Sahu (dead) through LRs and others V Vinod Kumar Rawat and Ors reported 2020 SCC OnLine SC 896 wherein at paragraph 30 it is observed as under:-
"30.The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. In the case of Patel Narshi Thakershi Vs Praduumansinghji Arjunsinghji , (1971) 3 SCC 844, this Court has held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise."
The Learned Counsel for the Respondent cites the decision of the Hon'ble Supreme Court in Pratap Technocrafts (P) Ltd V Monitoring Committee of Reliance Infratel Ltd reported in 2021 SCC OnLine SC 569 wherein it is observed and held that :-
"There is no equity based jurisdiction with the NCLT under the provisions of IBC and the Adjudicating Authority as a body owing its existence to the statute, must abide by the nature and extent of its jurisdiction as defined in the statute itself."
The Learned Counsel for the Respondent contends that the jurisdiction of the 'Adjudicating Authority' and the Appellate Authority are not to be extended into entering upon the merits of a business decision taken by a majority of the Committee of Creditors in its subjective, commercial wisdom and refers to the decision of Hon'ble Supreme Court in the matter of Committee of Creditors of Essar Steel India Ltd V Satish Kumar Gupta and Others reported in (2020) 8SCC 531.
The Learned Counsel submits that even in the case of providing an opportunity to an ineligible Resolution Applicant to remove the defect, it shall not be construed as an extension of CIRP period in terms of Section 12(3) of the I&B Code, 2016 and that the 'Corporate Insolvency Resolution Process' shall have to be completed within the prescribed period.
APPARENT ERROR:
The term 'Error apparent on the face' of the proceedings is held to be one based on clear ignorance or disregard of the provisions of Law as per decision of the Hon'ble Supreme Court in Lily Thomas V. Union of India reported in AIR 2000 SC 1650 at spl page 1665. Further, in the decision of the Hon'ble Supreme Court in Hari Vishnu Kamat V. Ahmad Ishaque, reported in AIR 1955 SC 233 it is held that 'it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record'.
Review Power:
In the decision of Hon'ble Supreme Court in Patel Narshi Thakershi V. Pradyumansinghji Arjunsinghji reported in (1971) 3 SCC Page 844, at spl page 847 it is observed and held that 'the power of review is not an inherent power. It must be conferred by Law either specifically or by necessary implication'. No wonder, the 'Tribunal' has no inherent power to review, as per Section 114 and Order 47 of the Civil Procedure Code.
TRIBUNAL'S POWER
Also that, a mere glance of Section 420(2) of the Companies Act, 2013 unerringly points out that the 'Tribunal' has power to rectify its order, if there is any mistake apparent from the record, but it has 'no power' of review of its own order. In this regard, this 'Tribunal' pertinently points out that Rule 154 of the National Company Law Tribunal Rules, 2016 enjoins the 'Tribunal' to rectify its order, if there is any clerical or arithmetical mistake in the order of the Tribunal or any error therein arising out of any accidental slip or omission of its own motion or an application of any party by means of rectification.
RECALL POWER
It is significantly pointed out by this 'Tribunal' that Hon'ble Supreme Court in the decision in Budhia Swain V. Gopinath reported AIR 1999 SC 2089 has prescribed the conditions for recalling an order (i) the proceedings 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 rendered in ignorance of the fact that a necessary party has not been served at all or had died and his estate was not represented.
DISCUSSIONS
It transpires from IA 2034/2021 in IB/702/(ND)/2018 (filed by the Resolution Professional/Applicant/2nd Respondent in 'Appeal)' that an issuance of direction to the Applicant/Resolution Professional be passed as to whether the 'Expression of Interest'/'Resolution Plan' of 'Resolution Applicant' M/s Hindustan Aqua Pvt Ltd be considered by the Resolution Professional and 'Committee of Creditors'. Further, in the event of the 'Adjudicating Authority' directing the 'Resolution Professional' to consider EOI/Resolution Plan of M/s Hindustan Aqua Pvt Ltd, a direction was prayed to be issued to the 'Resolution Professional' to call for 'Meeting' of the 'Committee of Creditors' for this purpose and allow 60 days' time to the Resolution Profession/COC for necessary proceedings. In the alternative, a relief to exclude the litigation period from 16.05.2019 was prayed for by the Resolution Professional/Applicant in view of proviso 12 (3) of the I&B Code, 2016 (Amended Act) 2019 dated 06.08.2019 for 60 days so that the 'Committee of Creditors' may take appropriate decision in the matter and conclude the 'CIRP' under proviso. 309. The 'Adjudicating Authority' on 11.06.2021 had passed the impugned order by coming to the conclusion that there was no reason to give any direction to the Applicant or the COC in respect of the 'Expression of Interest/Resolution Plan' of 'Resolution Applicant', M/s Hindustan Aqua Pvt Ltd received by the Resolution Professional and rejected the relief by dismissing the IA No.2034/2021.
The grievance of the Appellants is that the 'Adjudicating Authority' has failed to appreciate the factual aspect of the pendency of CA NO.607 of 2019 (Filed by the Appellants against the decision of the Respondent to wrongly categorise ineligible under Section 29A of the I&B Code) and CA No. 731/2019 (filed by the Respondent seeking liquidation of the Corporate Debtor).
The Appellants/Applicant in CA No.607/2019 in CP No.(IB)/702(ND)/2018 had sought a declaration relief as eligible under Section 29A(c) h) of the Code as wrongly held to be ineligible by the 'Resolution Professional' based on inconclusive opinion and report. Further a direction was sought to be issued to the Resolution Professional to re-consider the Resolution Plan submitted by the Appellant/Applicant within the parameters of the Code, as required under Regulation 39(3) of the CIRP Regulations, 2016 and in terms of the judgement passed by the Hon'ble Supreme Court in Swiss Ribbons Pvt Ltd Vs Union of India.
It comes to be known that in CA No.607/2019 in CP No. (IB)/702(ND)/2018 filed by the Appellants against the Resolution Professional, notice was ordered by the 'Adjudicating Authority' to come up for further consideration on 22.05.2019.
The Respondent filed CA No.731/2019 (Liquidation Application)) before the Adjudicating Authority praying for directions being issued to proceed towards liquidation and the same was allowed on 14.06.2019.
On behalf of the Appellants, it is brought to the notice of this 'Tribunal' that the 'Adjudicating Authority' in CA No.607/2019 and CA No.183/2019 had passed an order on 26.08.2019 that the aforesaid two applications shall be 'reheard again as this Bench was reconstituted' and notice was directed to be effected by all modes to the Members of the Committee of Creditors returnable on 19.09.2019. On 30.10.2019 the 'Adjudicating Authority' had heard the argument in CA No.607/2019 in part and for the conclusion of argument, directed the matter to come up on 31.10.2019 at 02.30 PM.
On 05.11.2019 the 'Adjudicating Authority' had passed an order in CA No.607/2019 stating that because of the constitution of the Special Bench the matter listed for argument could not be taken up and directed the listing of the matter on 22.11.2019 at 02.30 PM for hearing.
The Learned Counsel for the Appellants submits that the 'Resolution Professional' is a 'Resolution Professional' on 4.7.2019 and he is not the 'Liquidator' on that date.
On 30.04.2021, the 'Adjudicating Authority' in IA No.2034 of 2021, because of the two orders passed by the Bench on different dates on 14.06.2019 and 04.07.2019 thought it proper to give an opportunity to the persons who are interested in this matter and accordingly directed the 'suspended Board of Director' as well as the 'Committee of Creditors' to file a reply within 10 days from today and directed the Resolution Professional to serve the copy of the application to the persons concerned and further ordered to list the matter on 19.05.2021.
At this juncture, this Tribunal points out that Rule 49 of NCLT Rules, 2016 pertains to 'Ex parte Hearing and Disposal' which runs as under:
"(1) Where on the date fixed for hearing the petition or application or on any other date to which such hearing may be adjourned, the applicant appears and the respondent does not appear when the petition or the application is called for hearing, the Tribunal may adjourn the hearing or hear and decide the petition or the application ex-parte.
(2) Where a petition or an application has been heard ex-parte against a respondent or respondents, such respondent or respondents may apply to the Tribunal for an order to set it aside and if such respondent or respondents satisfies the Tribunal that the notice was not duly served or that he or they were prevented by any sufficient cause from appearing (which the petitioin or the application was called) for hearing, the Tribunal may make an order setting aside the ex-parte hearing as against him or them upon such terms as it thinks fit.
Provided that where the ex-parte hearing of the petition or application is of such nature that it cannot be set aside as against one respondent only, it may be set aside as against all or any of the other respondents also."
As far as the instant case is concerned, this Tribunal relevantly points out that the 'Adjudicating Authority' had failed to appreciate that CA No.827/2019 was filed by the 1st Appellant (under Rule 49(2) of the NCLT Rules, 2016) praying to recall an Ex-Parte order dated 14.06.2019 in CA No.731/2019 (Liquidation application) passed by the 'Adjudicating Authority'.
A perusal of the Order dated 14.06.2019 passed by the 'Adjudicating Authority' in CA No.827/2019 in CP (IB) 702(ND)/2018 indicates that CA No.731/2019 was allowed given the 'facts and circumstances' and there is no indication in the order in CA No.827/2019 in CP No.(IB)/702/(ND/2018 dated 14.06.2019 that CA No.731/2019 (Liquidation application filed by the Respondent) that the Appellants/Applicants were heard. As such when the said order of allowing CA No.731/2019 was passed on 14.06.2019, the same was allowed without issuing Notice on the Appellant/Applicant and this 'Tribunal' comes to a resultant conclusion that the said order was passed by the 'Adjudicating Authority' in an unilateral manner as an Ex parte one thereby giving a right to the Appellant/Applicant to file CA No.827/2019 to set aside the ex parte order.
By virtue of the order dated 04.07.2019 in CA No.827/2019 (filed by the 1st Appellant) wherein the 'Adjudicating Authority' held that pending application will be first disposed off and then liquidation be directed and ordered 'Notice' in CA No.731/2019 (Liquidation Application), admittedly, the same is pending as on date. When that be the fact situation and because of the Central Government declaring a 'Nationwide Lock Down' due to Covid-19 on 25.03.2020, the matter listed on 01.04.2020 could not be taken up and that on 01.04.2021, the Respondent filed an application being IA NO. 2034/2021 in (IB)/702/(ND)/2018 in which on 30.04.2021 the 'Adjudicating Authority' had observed that the liquidation order was passed by the Bench on 04.06.2019 but subsequently in the order dated 04.07.2019 it was mentioned that the pending application will be first disposed of and then, liquidation be directed and to file reply in IA No.2034/2021, the Appellants were granted time to file 'Reply' and the matter was directed to be listed on 19.05.2021.
In fact, on 19.05.2021, IA No.2034/2021 was heard by the 'Adjudicating Authority' and that the orders were reserved. The Respondent in May, 2021 filed IA No.2946/2021 praying inter alia to review the orders dated 14.06.2019 and 04.07.2019 passed by the 'Adjudicating Authority' and on 09.06.2021 the Respondent had prayed for the withdrawal of IA No.2946/2021, since the 'Adjudicating Authority' had observed that it has 'no power to review' its own order.
43 In the instant case, on going through the impugned order dated 11.06.2021 in IA No.2034/2021 in (IB) 702(ND)/2018 this Tribunal finds that the 'Adjudicating Authority' at para 12 had observed that it has no power to review its own order but traversed beyond its purview and reviewed the order dated 04.07.2019 in CA No.827/2019 by concluding that once a liquidation order was passed there is no scope to recall, which is contrary to the order passed by it on 04.07.2019 where it observed that the pending application will be disposed and then liquidation be directed.
Moreover, it cannot be forgotten that CA No.731/2019 filed by the Respondent (liquidation application) is pending before the 'Adjudicating Authority' as seen from the order dated 04.07.2019 wherein notice was issued to the Appellant and till date the said application is pending for determination. Apart from that, it is to be borne in mind that the Respondent, before the 'Adjudicating Authority' had not made any request to review the order dated 04.07.2019. When that be the factual scenario, the impugned order passed by the 'Adjudicating Authority' in IA No.2034/2021 in (IB) 702(ND)/2018 by the 'Adjudicating Authority' dated 11.06.2021 bristles with legal infirmity and the same is held by this Tribunal as one without jurisdiction in the eye of Law. Therefore, this 'Tribunal' in furtherance of 'Substantial Cause of Justice' interferes with the aforesaid 'impugned order' and sets aside the same. Consequently the Appeal succeeds.
CONCLUSION
In fine, the Comp App (AT)(Ins) 438/2021 is allowed. No costs. The 'Adjudicating Authority' (National Company Law Tribunal, New Delhi II) is directed to restore the IA No.2034/2021 in CP(IB)No.702(ND)/2018 to its file and to pass fresh orders on merits, in accordance with law, of course, after providing adequate opportunity of hearing to both sides, by permitting them to raise all factual and legal pleas as expeditiously as possible.
IA No.1129/2021 (seeking Stay of the Impugned Order dated 11.06.2021 passed by the 'Adjudicating Authority') and IA No.1130/2021 (claiming exemption from filing certified copy of the impugned order) are closed.