SCI (2025.09.09) in V. Venkata Sivakumar Vs. S. Hari Karthik, [(2025) ibclaw.in 701 NCLAT, Review App No. 03/2023 in Comp App (AT) (CH) (Ins) No. 155/2023] held that;
This Tribunal is not vested with any power to review the judgment, however, in exercise of its inherent jurisdiction this Tribunal can entertain an application for recall of judgment on sufficient grounds.
In our opinion a tribunal or a court may recall an order earlier made by it if (1) 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 judgment, (ii) there has been a mistake of the court prejudicing a party or (iv) a judgment 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 judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or 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 judgment may be lost by waiver, estoppel or acquiescence.
Power of recall is not power of the Tribunal to rehear the case to find out any apparent error in the judgment which is the scope of review.
Where an application is styled as recall but in essence is review application, the same cannot be entertained.
Ground for recall of the order earlier made on any of the grounds listed by the Hon’ble Supreme Court in the case of Sri Budhia Swain and Ors. (supra) mainly lack of jurisdiction, fraud or collusion, mistake of the Court prejudicing a party, non-joinder of necessary party, non- joinder/non-service of necessary party or on the grounds of violations of principles of natural justice.
Excerpts of the order;
I.A. No. 677 of 2024 has been filed by the appellant for recalling the order dated 22.12.2023 passed by this Tribunal.
# 2. The appellant is erstwhile liquidator of the Jeypore Sugar Co. Ltd. Vide the said judgment dated 22.12.2023, the appeal No. Company Appeal (AT) (CH) (Ins.) No. 155 of 2023 filed by the appellant was dismissed and the order impugned therein dated 28.04.2023 passed by the Ld. Adjudicating Authority, NCLT, Chennai Bench-II in IA/755/2022 in CP/1307/IB/2018 was confirmed. The appellant was aggrieved by some observations made against him by the Ld. NCLT, Chennai, which are extracted below:
# 3. One of us was member of the Bench which had passed the order dated 22.12.2023, while the then Technical Member had since demitted office.
# 4. It was the submission of the appellant that he was not present during the hearing and adverse order was passed by the Ld. NCLT without giving the appellant an opportunity of being heard.
4.1. It was also the submission of the appellant that he was ready with the documents on 16.07.2022, but could hand over the same to the new Liquidator only on 25.03.2023.
4.2. It was submitted by the appellant that an Advocate Commissioner was appointed by the Adjudicating Authority with whom he had fully cooperated and this was noted by the Advocate Commissioner in his report dated 25.04.2023.
4.3. It is the submission of the appellant that Ld. NCLT ought not to have made the observations against him in his absence.
4.4. Initially the appellant had filed an application for review of order of this Tribunal order dated 22.12.2023. Vide order dated 19.03.2024, we have recorded that this Tribunal has no power of review and the said Review Application No. 3 of 2023 is not maintainable. The appellant then submitted that he will file a proper application by changing the nomenclature of the application. Subsequently, recall application viz I.A. No. 677 of 2023 was filed by the appellant.
# 5. In the ‘Final Notes of Submissions for Recall Petition’, the appellant had stated the following as grounds for recall:
“2.0. Grounds for recall:
2.01. Fraud and Collusion in Obtaining the Judgment:
a. The Petitioner submits that the proceedings in the matter were tainted by fraud and collusion between the new liquidator and IDBI Bank and Erstwhile Promoters. The New Liquidator, made false allegations of non-cooperation against the Petitioner. Despite providing all necessary documents and cooperating fully, the petitioner was falsely accused, leading to the appointment of an Advocate Commissioner who vindicated the stand of the Petitioner in his report.
2.02. Mistake of the Court Prejudicing the Petitioner:
a. The Hon’ble Appellate Tribunal dismissed the Appeal (CA 155 of 2023) without giving the Petitioner an opportunity to be heard, thereby committing a mistake of the Court. This Hon’ble Tribunal, concluded non-cooperation without considering the Petitioner’s side of the story and that to based on the appointment of Advocate Commissioner.
b. Despite the Petitioner’s plea to be heard, the Tribunal passed an adverse order based solely on incomplete information, i.e., the letter from the workers’ union dated 18-03-2023, which pertained to the inefficiency of the New Liquidator rather than the Petitioner’s conduct. This failure to hear the Petitioner has led to prejudice and constitutes a clear mistake of law, warranting a recall of the order.
2.03. Lack of Jurisdiction:
a. The Petitioner submits that the order passed in CA 155 of 2023 suffers from an inherent lack of jurisdiction, as it was passed without granting the petitioner access to the virtual hearing, thereby denying the petitioner a fair opportunity to present its defense. This procedural lapse undermines the jurisdictional validity of the order.
b. Further, the Tribunal’s conclusion on non-cooperation was based on erroneous assumptions and incomplete facts, which were not properly examined before the adverse decision was made. The lack of opportunity for the petitioner to be heard and the reliance on incomplete evidence calls into question the Tribunal’s jurisdiction in making such a ruling.
3. IBBI Investigation and Hon’ble Supreme Court Judgment:
3.01. The Petitioner highlights the investigation initiated by IBBI based on the complaint of IDBI Bank, fearing consequences of admitting to making false statements in an affidavit before Hon’ble Supreme Court confirm that they made false statements for removing the Petitioner as liquidator to cover up, the fraudulent lending of Rs. 252 Crores to the Erstwhile Promoters.
3.02. Furthermore, the judgment by the Hon’ble Supreme Court in CA 1614 of 2023, in favor of the Petitioner, has caused IDBI Bank to initiate further litigation by filing frivolous cases against the Petitioner using order of dismissal by this Hon’ble Tribunal. In this context of ongoing legal harassment and the fraudulent conduct of the parties involved necessitate a reconsideration of the earlier order.”
# 6. In the order dated 22.12.2023 passed in Company Appeal (AT) (CH) (Ins.) No. 155 of 2023, against which the recall application has been filed, this Tribunal has held as under:
“7. The short point which falls for consideration in this Appeal is whether the Adjudicating Authority was justified in making some observations against the erstwhile Liquidator / the Appellant herein, and directing the Registry to forward a copy of the Compliance Affidavit and report of the Court Commissioner to IBBI.
8. It is the main case of the Appellant that without adhering to Principles of Natural Justice, the Impugned Order was passed on 28.04.2023 in his absence. It is seen from the record that hearings were held on 15.07.2022, 16.08.2022, 28.10.2022, 19.12.2022, 23.12.2022, on which date the Advocate Commissioner was appointed, and thereafter on 31.01.2023, 23.03.2023 and finally on 28.04.2023, on which specific date the Impugned Order was passed and the Appellant was absent. A brief perusal of the Order dated 15.07.2022, passed in IA Nos. 754 & 755 / 2022 shows that the Adjudicating Authority had earlier directed the Appellant vide Order dated 01.07.2022 herein to handover the control and custody of the books of accounts, statutory records and registers of the Corporate Debtor without any delay, but on account of non- compliance by the Appellant herein, the new Liquidator filed IA No. 755/2022, seeking compliance and the Appellant filed IA No. 754/2022 seeking extension of 30 days from the date of receipt of the Order, for compliance. The Adjudicating Authority, while denying extension dismissed IA No. 754 / 2022. In IA No. 755 / 2022, the Adjudicating Authority posted the matter for hearing on 16.08.2022 and in the meantime, directed both the parties to meet personally and cooperate with each other. The Appellant was present and heard on all these dates.
9. It is significant to mention that in the Order dated 23.12.2022, when the Appellant was heard, an Advocate Commissioner Mr. B. Dhanaraj was appointed to take stock of what documents have been submitted and list the documents that are still to be handed over by the Appellant to the new Liquidator. The facts of the case establish that this situation of stalemate between the parties had necessitated the appointment of this Advocate Commissioner. The Application IA No. 755 / 2022 was further listed for hearing on 31.01.2023. On 25.04.2023, the final report of the Advocate Commissioner was filed. It is submitted by the Appellant that the Advocate Commissioner had mentioned in his report that there was good cooperation from the staff of the new Liquidator for smooth transition of the records, which was ignored by the Adjudicating Authority. It is clear from the report and the Orders that it was only after the appointment of the Advocate Commissioner that the records were handed over to the new Liquidator. The contention of the Appellant that the Advocate Commissioner had only spent a couple of hours and there is no justification for increasing the fees from Rs. 50,000/- to Rs.4,00,000/-, is not relevant to the facts and circumstances of the case on hand. The question here is whether the observations made by the Adjudicating Authority regarding the conduct of the Appellant, is justified and not the fee of the Advocate Commissioner.
10. The chronology of dates and events establishes that the Appellant was present and heard on several dates specifically regarding the issue on hand. It is pertinent to mention that when the Advocate Commissioner was appointed to facilitate the handover of the documents and implement the Order of the Adjudicating Authority regarding the transition of the control and custody of the statements, records and assets of the Corporate Debtor Company, there was no whisper of protest by the Appellant herein or any bonafide submission before the Adjudicating Authority that the transition would be done within the time frame given by the Adjudicating Authority. The fact that one weeks’ time was given and thereafter, the Adjudicating Authority had directed both the parties to meet, cooperate and implement the Order is not denied. It is not in dispute that 8 ½ months had lapsed from the date the new Liquidator was appointed. Infact, the Advocate Commissioner had written in his report that a list of Registers, files, books, vouchers, cheque books, etc. A total list of 377 items was made. Keeping in view these facts and circumstances of the attendant case on hand, we are of the considered view that the Appellant was very much present for all previous hearings, relevant to the matter on hand, the Advocate Commissioner was appointed only on account of the situation which has arisen based on the non-handing over of the said documents to the new Liquidator / First Respondent, and therefore, his contention that Principles of Natural Justice was not adhered to, is untenable.
11. For all the foregoing reasons, we do not find any illegality or infirmity in the Impugned Order. This Appeal is dismissed. No Order as to costs. Needless to add, the Appellant is at liberty to raise all issues before the IBBI, in support of his case.
# 7. At this stage, it will be relevant to examine the judicial guidelines regarding recall of order. In a Five-Member Bench of this Tribunal in the case of “Union Bank of India vs. Mr. Dinkar T. Venkatasubramanian, (2023) SCC Online NCLAT 283, this Tribunal has held that this Tribunal has no power of review but has power to recall its own judgment. The relevant portion of the judgment is reproduced below:
“27. In view of the foregoing discussion, we answer the questions referred to this Bench in following manner:
27.1 I : This Tribunal is not vested with any power to review the judgment, however, in exercise of its inherent jurisdiction this Tribunal can entertain an application for recall of judgment on sufficient grounds.”
# 8. The Hon’ble Supreme Court in the case of Indian Bank Vs. Satyam Fibres India Pvt. Ltd. [AIR 1996 Supreme Court 2592], has held that the courts have inherent power to recall and set aside an order which is obtained by fraud practiced upon the Court, or when the Court is misled by a party or when the Court itself commits a mistake which prejudices a party.
# 9. The Hon’ble Supreme Court in the case of A.R. Antulay Vs. R.S. Nayak [(1988) 2 SCC 602], has observed that recall lies where judgement has been 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 or where the judgment was obtained by fraud, or a judgment where the party who had no notice when the decree was passed against him and he approaches the court for setting aside the order.
# 10. The Hon’ble Supreme Court in the case of Sri Budhia Swain and Ors. v. Gopinath Deb and Ors., (2017) ibclaw.in 282 SC, has examined the power of recall vested in Tribunals or Courts and has given the guidelines as under:
“…..What is a power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian Bank Vs. M/s Setyam Fibres India Pvt. Ltd. 1996 (5) SCC 550. Vide para 23, this Court has held that the courts have inherent power to recall and set aside an order (1) 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 Vs. R.S. Nayak & Anr. AIR 1988 SC 1531 (vide para 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. (u) 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. In Corpus Juris Secundum (Vol. XIX) under the Chapter “Judgment- Opening and Vacating” (paras 265 to 284 at pages 487-510) 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. In our opinion a tribunal or a court may recall an order earlier made by it if (1) 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 judgment, (ii) there has been a mistake of the court prejudicing a party or (iv) a judgment 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 judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or 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 judgment may be lost by waiver, estoppel or acquiescence. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation.
# 11. This Tribunal in the case of Aircastle (Ireland) Ltd. vs. Mr. Ashish Chawchharia, The Resolution Professional of Jet Airways (India) Limited And Ors., Company Appeal (AT) (Ins.) No. 1178 of 2024, has held as under:
“56. At this stage, it is important to go into aspect of recall v/s review primary issue in the present appeal. We note that several judgments have been passed by the Hon’ble Supreme Court of India and this Appellate Tribunal explaining the distinction between review petition and recall petition. Based on such judgements, we find following ratios relevant which are summarised as under :-
• Power of review has to be expressly conferred by a Statute.
• Power to recall does not require an express provision in a Statute.
• To recall is an inherent power whereas to review its judgement is not.
• In a review petition, the Court considers the error apparent on the face of record on its merits.
• Power of recall is not power of the Tribunal to rehear the case to find out any apparent error in the judgment which is the scope of review.
• Power of recall of a judgment can be exercised by the Tribunal when any procedural error is committed in delivering the earlier judgment; for example, necessary party has not been served or necessary party was not before the Tribunal when judgment was delivered adverse to a party. One other well-known grounds for recall is the ground for fraud.
• Where an application is styled as recall but in essence is review application, the same cannot be entertained.
• Power to recall can be exercised under Rule 11 of NCLAT Rules, 2016
…………….
58. The power to recall a judgment 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 or 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 judgment may be lost by waiver, estoppel or acquiescence.
……………
62. However, the Rule cannot be invoked to revisit the findings and it is not open to re-examine the findings. The mistake/error must be apparent on the face of the record and must have occurred due to oversight, inadvertence or human error. It would be open to correct the conclusion if the same is not compatible with the finding recorded on the issues raised.”
# 12. Examining the facts of these cases, we note the appellant had been appearing in person in Company Appeal (AT) (CH) (Ins.) No. 155 of 2023 before this Tribunal. The case was fixed on 07.06.2023, 28.06.2023, 19.09.2023, 09.11.2023,18.12.2023 and 22.12.2023 and on all the dates the appellant had appeared in person and his presence is duly recorded in the orders. We note that in the daily order dated 18.08.2025 passed in the present proceedings, we have recorded as under:
“Counsel for the Applicant/Appellant, during the course of hearing, has submitted that he is aggrieved against the order passed by the Ld. NCLT. On our pointed query, as to whether, there is any factual error in the order passed by this Tribunal for which the application for recall has been filed, he has submitted that opportunity of hearing was not given by the Ld. NCLT. We have heard Counsel for the Applicant/Appellant. Order reserved.”
# 13. We find that representations made by the appellant have been duly noted in the order dated 22.12.2023. On specific query as to whether any factual error is there in the order of this Tribunal, the appellant submitted that there is no factual error in the order but he is aggrieved by the fact that the Adjudicating Authority (NCLT) had made the remarks against him in his absence.
# 14. We note from the order dated 22.12.2023 that it is stated by this Tribunal as follows:
“10. The chronology of dates and events establishes that the Appellant was present and heard on several dates specifically regarding the issue on hand. It is pertinent to mention that when the Advocate Commissioner was appointed to facilitate the handover of the documents and implement the Order of the Adjudicating Authority regarding the transition of the control and custody of the statements, records and assets of the Corporate Debtor Company, there was no whisper of protest by the Appellant herein or any bonafide submission before the Adjudicating Authority that the transition would be done within the time frame given by the Adjudicating Authority. The fact that one weeks’ time was given and thereafter, the Adjudicating Authority had directed both the parties to meet, cooperate and implement the Order is not denied. It is not in dispute that 8 ½ months had lapsed from the date the new Liquidator was appointed. Infact, the Advocate Commissioner had written in his report that a list of Registers, files, books, vouchers, cheque books, etc. A total list of 377 items was made. Keeping in view these facts and circumstances of the attendant case on hand, we are of the considered view that the Appellant was very much present for all previous hearings, relevant to the matter on hand, the Advocate Commissioner was appointed only on account of the situation which has arisen based on the non-handing over of the said documents to the new Liquidator / First Respondent, and therefore, his contention that Principles of Natural Justice was not adhered to, is untenable.”
# 15. We find that there is no ground for recall of the order earlier made on any of the grounds listed by the Hon’ble Supreme Court in the case of Sri Budhia Swain and Ors. (supra) mainly lack of jurisdiction, fraud or collusion, mistake of the Court prejudicing a party, non-joinder of necessary party, non- joinder/non-service of necessary party or on the grounds of violations of principles of natural justice. There was no fraud committed against the court or its proceedings. The recall application in essence seeks review of this Tribunal’s order, which is not permissible. The appellant had opportunity to appeal against the said judgment, and cannot seek recall as an alternative. Considering the facts of this case, in light of judicial pronouncements cited above, we find no reason to recall the order of this Tribunal dated 22.12.2023, therefore, the I.A. No. 677 of 2024 is dismissed. No order as to costs. Pending application(s), if any, are also disposed of.
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