State of Chhattisgarh and Anr. vs. Truvisory Insolvency Professionals Pvt. Ltd - Further, Rule 11 of the NCLT Rules, 2016 preserves the inherent power of the Tribunal. Therefore, even in absence of a specific provision empowering the Tribunal to recall its order, the Tribunal has power to recall its order.

 NCLT All. (2026.07.27) in State of Chhattisgarh and Anr. vs. Truvisory Insolvency Professionals Pvt. Ltd. (Liquidator) [(2026) ibclaw.in 3006 NCLT,  IA No. 742 (AHM) of 2026 in IA No. 1078 (AHM) of 2023 in CP (IB) No. 35 of] held that; 

• 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 judqment, (iii) there has been a mistake of the court prejudicing a party or fiv) a judqment 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 Court or a Tribunal, in absence of any provision to the contrary, has inherent power to recall an order to secure the ends of justice and/or to prevent abuse of the process of the Court.

• Further, Rule 11 of the NCLT Rules, 2016 preserves the inherent power of the Tribunal. Therefore, even in absence of a specific provision empowering the Tribunal to recall its order, the Tribunal has power to recall its order.

• We consciously note that the NCLT & NCLAT have inherent powers to recall order but have no power to review its order.

• 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.

• They have neither alleged nor established that the said order was obtained by fraud or misrepresentation or that it suffers from any procedural irregularity or violation of the principles of natural justice. The grounds urged in the present Application merely seek reconsideration of the findings recorded on merits, which is impermissible in the exercise of recall jurisdiction. 

Excerpts of the Order; 

# 1. This Interlocutory Application, registered on 12.05.2026, has been filed by the Applicants under Rule 11 of the National Company Law Tribunal Rules, 2016 read with Section 60(5)(c) of the Insolvency and Bankruptcy Code, 2016 seeking recall of the order dated 15.04.2025 passed by this Adjudicating Authority in I.A. No. 1078 of 2023, and further seeking following reliefs: –

• A. Allow the present Application and recall the order dated 15.04.2025 passed by this Hon’ble Adjudicating Authority in I.A. No. 1078 of 2023;

• B. Pass any other order as this Hon’ble Adjudicating Authority may deem fit.

# 2. It is stated that Corporate Insolvency Resolution Process (hereinafter as, “the CIRP”) against the Corporate Debtor, Sunshine HighTech Infracon Limited, was commenced vide order dated 05.10.2021 passed in CP (IB) No. 35 of 2020. During the subsistence of the CIRP, proceedings were initiated by the State Authorities under the Chhattisgarh Protection of Depositors’ Interest Act, 2005 (hereinafter as, “the CPDI Act”) in respect of land bearing Khasra No. 391/1 admeasuring 0.62 hectare situated at Village Balodgahan, P.H. No. 29, Tehsil Gurur, District Balod, Chhattisgarh. Pursuant thereto, an ad-interim attachment order dated 04.02.2022 came to be passed by the Competent Authority, which was confirmed by the learned District and Sessions Judge (Special Court), Balod on 10.08.2022. Thereafter, auction notice dated 15.10.2022 was issued scheduling auction of the said property on 07.11.2022. It is further stated that in the said auction, one Mr. Pawan Sinha was declared as the successful bidder and deposited a sum of Rs. 30,00,000/- towards the total auction consideration of Rs.1,40,00,000/-.

# 3. The Applicants submit that, upon commencement of liquidation of the Corporate Debtor vide order dated 30.08.2023, the Liquidator instituted I.A. No. 1078 of 2023 before this Adjudicating Authority challenging the aforesaid proceedings under the CPDI Act and seeking, inter alia, quashing of the interim attachment order dated 04.02.2022, confirmation order dated 10.08.2022, auction sale notice dated 15.10.2022 and all consequential proceedings, besides a direction to hand over possession and title documents of the aforesaid property. The said application came to be allowed by this Adjudicating Authority vide order dated 15.04.2025 whereby the attachment order dated 04.02.2022, confirmation order dated 10.08.2022, auction sale notice dated 15.10.2022 and all consequential actions were set aside.

# 4. The Applicants have assailed the aforesaid order principally on the ground that this Adjudicating Authority lacked jurisdiction to adjudicate upon the validity of the proceedings initiated under the Chhattisgarh Protection of Depositors’ Interest Act, 2005 (“CPDI Act”). It is contended that the Competent Authority and the Special Court constituted under the CPDI Act alone have jurisdiction over attachment and realisation of properties notified thereunder and, therefore, the legality of the attachment and auction proceedings could not have been examined by this Adjudicating Authority. It is further contended that, upon confirmation of attachment by the Special Court on 10.08.2022, the subject property vested in the Competent Authority for distribution amongst the depositors and consequently ceased to form part of the liquidation estate of the Corporate Debtor.

# 5. According to the Applicants, the CPDI Act and the Insolvency and Bankruptcy Code operate in distinct fields and there is no repugnancy between the two enactments warranting invocation of Section 238 of the Code. It is further contended that the order dated 15.04.2025 suffers from an error of jurisdiction falling within the limited parameters for exercise of the inherent power of recall under Rule 11 of the NCLT Rules, 2016. On these grounds, the Applicants seek recall of the said order.

# 6. The Respondent/Liquidator has filed a Reply opposing the present Application. At the outset, it is contended that the Application is not maintainable and amounts to an indirect attempt to seek review of a reasoned order which has attained finality. It is submitted that the Applicants actively participated in the proceedings in I.A. No.1078 of 2023 by filing their reply, additional affidavit and written submissions and, therefore, cannot invoke Rule 11 merely because the findings have gone against them.

# 7. The Respondent further submits that the order dated 15.04.2025 was passed in exercise of the jurisdiction conferred under Section 60(5)(c) of the Code, as the attachment and auction proceedings directly affected the assets of the Corporate Debtor undergoing liquidation. It is further submitted that the Applicants have failed to establish any recognised ground warranting recall, such as fraud, misrepresentation, violation of the principles of natural justice or patent lack of jurisdiction. The Respondent therefore submits that the proper remedy, if any, is an appeal under Section 61 of the Code.

# 8. Pursuant to the order dated 10.06.2026, the Respondent filed Written Submissions on 22.06.2026 vide Inward Diary No. D-4997. Thereafter, the Applicants filed their Written Submissions on 06.07.2026 vide Inward Diary No. D-4890. The same are taken on record.

# 9. We have heard the Counsel appearing for the Applicants as well as the Counsel appearing for the Respondent/Liquidator and have perused the material placed on record.

Observation and Findings of this Tribunal: –

# 10. Before considering the rival contentions, it is necessary to identify the scope of the present proceedings. The Applicants seek recall of the order dated 15.04.2025 passed in I.A. No.1078 of 2023. The submissions advanced before this Tribunal primarily relate to the jurisdiction of this Adjudicating Authority to examine proceedings initiated under the CPDI Act, 2005, the applicability of Section 238 of the Code, the effect of attachment under the said Act and whether the subject property formed part of the liquidation estate. These issues were considered and adjudicated while deciding I.A. No. 1078 of 2023.

# 11. Since the present Application has been filed under Rule 11 of the NCLT Rules, 2016, it would be apposite to first reproduce the said provision. Rule 11 of the 2016 Rules is reproduced hereinunder: –

• “11. Inherent Powers.- Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Tribunal to make such orders as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Tribunal.”

# 12. A plain reading of the aforesaid Rule shows that it merely preserves the inherent powers of the Tribunal to pass such orders as may be necessary to meet the ends of justice or to prevent abuse of its process. The Rule neither creates an independent source of substantive jurisdiction nor enlarges the powers otherwise conferred upon the Tribunal under the Companies Act, 2013 or upon the Adjudicating Authority under the Insolvency and Bankruptcy Code, 2016. It only recognises the inherent powers possessed by every judicial forum to secure the ends of justice and cannot be invoked either to confer jurisdiction where none exists or to circumvent the statutory remedy of appeal provided under Section 61 of the Code.

# 13. One of the leading decisions explaining the scope of the power of recall is the judgment of the Hon’ble Supreme Court in Budhia Swain & Ors. v. Gopinath Deb & Ors., [(2017) ibclaw.in 282 SC] : (1999) 4 SCC 396. In the said decision, the Hon’ble Supreme Court considered the distinction between the power to recall an order and the power to review a decision and identified the circumstances in which a judicial authority may recall its own order. The relevant observations of the Hon’ble Supreme Court are reproduced hereinbelow:

• “6. 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 Satyam 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 (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 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, (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 (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.

• 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 judqment, (iii) there has been a mistake of the court prejudicing a party or fiv) a judqment 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.” (Emphasis Supplied)

# 14. The Hon’ble Supreme Court in Greater Noida Industrial Development Authority v. Prabhjit Singh Soni & Ors., [(2024) ibclaw.in 53 SC] : 2024 SCC OnLine SC 122, it was held that: –

• “49. In a recent decision (i.e., Union Bank of India vs. Dinakar T. Vekatasubramanian & Ors. [(2023) ibclaw.in 381 NCLAT]), a five-member Full Bench of NCLAT held that though the power to review is not conferred upon the Tribunal but power to recall its judgment is inherent in the Tribunal and is preserved by Rule 11 of the NCLT Rules, 2016. It was held that power of recall of a judgment can be exercised 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. It was observed that there may be other grounds for recall of a judgment one of them being where fraud is played on the Court in obtaining a judgment. This decision of NCLAT was upheld by a two-Judge Bench of this Court vide order dated 31.07.2023 in Civil Appeal No.4620 of 2023 (Union Bank of India vs. Financial Creditors of M/s Amtek Auto Ltd. & Ors. [(2023) ibclaw.in 85 SC]).

• 50. In light of the discussion above, what emerges is, a Court or a Tribunal, in absence of any provision to the contrary, has inherent power to recall an order to secure the ends of justice and/or to prevent abuse of the process of the Court. Neither the IBC nor the Regulations framed thereunder, in any way, prohibit, exercise of such inherent power. Rather, Section 60(5)(c) of the IBC, which opens with a non-obstante clause, empowers the NCLT (the Adjudicating Authority) to entertain or dispose of any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under the IBC. Further, Rule 11 of the NCLT Rules, 2016 preserves the inherent power of the Tribunal. Therefore, even in absence of a specific provision empowering the Tribunal to recall its order, the Tribunal has power to recall its order. However, such power is to be exercised sparingly, and not as a tool to re-hear the matter. Ordinarily, an application for recall of an order is maintainable on limited grounds, inter alia, where (a) the order is without jurisdiction; (b) the party aggrieved with the order is not served with notice of the proceedings in which the order under _recall has been passed; and (c) the order has been obtained by misrepresentation of facts or by playing fraud upon the Court/Tribunal resulting in gross failure of justice.” (Emphasis Supplied)

# 15. The aforesaid judgments make it clear that the power of recall is an exceptional jurisdiction, exercisable only where the order suffers from a fundamental jurisdictional or procedural defect, such as patent lack of jurisdiction, fraud, misrepresentation or violation of the principles of natural justice. It cannot be invoked to re-open or reconsider the merits of a decision merely because another view is possible.

# 16. Furthermore, Hon’ble NCLAT in Aircastle (Ireland) Ltd. & Ors. v. Mr. Ashish Chawchharia, The Resolution Professional Of Jet Airways (India) Limited & Ors. [(2024) ibclaw.in 637 NCLAT], Comp. App. (AT) (Ins) No. 1178 of 2024, has held that: –

• “58. The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judqment 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.

• 59. Generallų speaking, review can be permitted, if found in the statute by the competent judicial forum. Review can be filed, if there is discovery of New and Important matter or evidence, which, after the exercise of due diligence was not within the knowledge of the person seeking review or could not be produced by him at any time when the decree was passed or order made or some mistake or error apparent on the face of the record or any other sufficient reason.

• 60. We consciously note that the NCLT & NCLAT have inherent powers to recall order but have no power to review its order.

• 61. We further note that in the case of Action Barter Pvt. Ltd. Vs Srei Equipment Finance Ltd. [(2020) ibclaw.in 86 NCLAT], in IA Nos. 811/2020, 917/2020, 962/2020 & 1587/2020in Company Appeal (AT) (Ins.) No. 1434 of 2019, this Appellate Tribunal held that Rule 11 of the NCLAT Rules is merely declaratory in the sense that the NCLAT is armed with inherent powers to pass orders or give directions necessary for advancing the cause of justice or prevent abuse of the Appellate Tribunal’s process. This Appellate Tribunal further held that even in absence of Rule 11, the Appellate Tribunal being essentially a judicial forum determining and deciding rights of parties concerned and granting appropriate relief has no limitations in exercise of its powers to meet ends of justice or prevent abuse of its process. Such powers being inherent in the constitution of the Appellate Tribunal, Rule 11 can merely be said to be declaring the same to avoid ambiguity and confusion.

• 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.”  (Emphasis Supplied)

# 17. The aforesaid decisions further clarify that Rule 11 cannot be invoked as a substitute for review or appeal. Where the grounds urged were available during the original proceedings and the statute provides an efficacious remedy of appeal, the power of recall cannot be exercised to reopen findings already rendered on merits.

# 18. Having examined the legal principles governing the exercise of the power of recall, this Adjudicating Authority proceeds to determine whether the Applicants have established any recognised ground warranting recall of the order dated 15.04.2025. The scope of the present proceedings is confined to the maintainability of the recall application and not to the correctness of the findings recorded in the said order.

# 19. The principal grievance of the Applicants is that the findings recorded in the order dated 15.04.2025 are erroneous. However, the issues sought to be re-agitated were comprehensively considered and adjudicated while deciding I.A. No. 1078 of 2023. The legality or correctness of those findings falls within the domain of appellate scrutiny under Section 61 of the Code and cannot be re-examined in proceedings seeking recall under Rule 11 of the NCLT Rules, 2016.

# 20. The Applicants actively participated in the proceedings in I.A. No. 1078 of 2023 by filing their reply, additional affidavit and written submissions and were afforded full opportunity of hearing before the order dated 15.04.2025 came to be passed. They have neither alleged nor established that the said order was obtained by fraud or misrepresentation or that it suffers from any procedural irregularity or violation of the principles of natural justice. The grounds urged in the present Application merely seek reconsideration of the findings recorded on merits, which is impermissible in the exercise of recall jurisdiction.

# 21. It is well settled that recall proceedings cannot be converted into appellate or review proceedings and that the correctness of an order passed after due hearing can be examined only by the Appellate Authority in accordance with law. If the Applicants are aggrieved by the order dated 15.04.2025, the appropriate statutory remedy is an appeal under Section 61 of the Code. Accordingly, no case has been made out for recalling the said order.

# 22. In view of the foregoing discussion, IA No. 742 (AHM) of 2026 in IA No. 1078 (AHM) of 2023 in CP(IB) No. 35 of 2020 is dismissed, being devoid of merit. No order as to costs.

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Cosmic CRF Ltd. vs Myotic Trading Pvt. Ltd. and Ors - Since, this has something to do with factual errors, the bar of review should not come in the way of the NCLAT.

 SCI (2025.08.01) in Cosmic CRF Ltd. vs Myotic Trading Pvt. Ltd. and Ors. [(2025) ibclaw.in 308 SC, Civil Appeal No.9900 of 2025] held that;

• # 3. According to the learned counsel appearing for the appellant, the findings recorded in paragraphs 105 and 106 respectively are incorrect and contrary to the records available.

• # 4. If that be so, the appellant should go before the NCLAT and point out the factual errors to the Appellate Tribunal.

• # 5. Since, this has something to do with factual errors, the bar of review should not come in the way of the NCLAT.

Excerpts of the Order; 

1. The National Company Law Appellate Tribunal (for short “the NCLAT”) in its order has recorded the following findings in paragraphs 105 and 106 respectively as under:-

• “105. We find that COC had taken legal opinion from various law firms and found Cosmic to be ineligible on various grounds. The reports on the issue of eligibility of Cosmic CRF Limited – Respondent No.3, were discussed in detail in various meetings of the CoC and the resolution applicant was intimated vide letter dated 04.11.2024 which contained in detailed manner as to how it is not found eligible under various clauses of Sections 29A(a),(c), (h) and (j) of IBC, 2016 (pages 359-366 of Appeal Paper Book). It is to be noted that both AHSK and PSA earlier entrusted by the CoC have given detailed findings and reasons with respect to their conclusions as to how Cosmic CRF Limited – Respondent No.3 was not   found eligible under Section 29A. Cosmic CRF Limited approached NCLT on 05.11.2024 and NCLT vide order dated 05.11.2024 remanded the matter back to the CoC for reconsideration on the issue ineligibility of Cosmic CRF Limited under Section 29A after providing it an opportunity of being heard. Later on, RP/CoC called for the response of Cosmic CRF Limited and also asked PSA to give it final report/opinion based on all the previous reports and Cosmic CRF Limited response dated 20.01.2025 and it was also decided to send the final report of PSA to a Senior Advocate for his opinion. The final report dated 18.02.2025 of PSA again declared Cosmic CRF Limited to be in-eligible under Section 29A of IBC. But Senior Advocate in his opinion dated 03.03.2025 declared it to be eligible under Section 29A.

• 106. We have noted various reports of Experts which are placed on record in the pleadings. Without going into the details of these reports, we find that the report of PSA and also the earlier report submitted by AHSK & Co. are detailed reports and are similar and they both had come to the same conclusion that Cosmic CRF Limited is not eligible under Section 29A. We also note that despite multiple initial reports and despite Cosmic CRF Limited – Respondent No.3 having been given opportunity of  being heard, all reports suggest non-eligibility of Cosmic CRF Limited – Respondent No. 3 except the view of senior advocate, which was obtained on the final report of PSA. Even if we don’t rely on these reports of law firms we find that the respondents have not satisfactorily replied to the real issues raised by the appellant from pages 66-72 and 88-100 of Appeal Paper Book.”

2. Today, the entire debate before us was on Section 29A of the Insolvency and Bankruptcy Code,2016 (for short “the IBC, 2016”).

3. According to the learned counsel appearing for the appellant, the findings recorded in paragraphs 105 and 106 respectively are incorrect and contrary to the records available.

4. If that be so, the appellant should go before the NCLAT and point out the factual errors to the Appellate Tribunal.

5. Since, this has something to do with factual errors, the bar of review should not come in the way of the NCLAT.

6. At this stage, Mr. Mukul Rohtagi and Mr. C. A. Sundaram, the learned counsel appearing for the respondents vehemently submitted that in no manner the findings recorded in the two paragraphs, referred to above, could be termed as perverse or contrary to the record.

7. In view of the aforesaid, this appeal stands disposed of.

8. Pending application(s), if any, stands disposed of.

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Chandar Narayan Chavan Vs M. D. Devcon Pvt. Ltd. and Ors. - Therefore, even in absence of a specific provision empowering the Tribunal to recall its order, the Tribunal has power to recall its order. However, such power is to be exercised sparingly, and not as a tool to re-hear the matter. Ordinarily, an application for recall of an order is maintainable on limited grounds, inter alia, where (a) the order is without jurisdiction; (b) the party aggrieved with the order is not served with notice of the proceedings in which the order under recall has been passed; and (c) the order has been obtained by misrepresentation of facts or by playing fraud upon the court/ Tribunal resulting in gross failure of justice.”

 NCLAT (2025.05.07)  in Chandar Narayan Chavan Vs M. D. Devcon Pvt. Ltd. and Ors. [(2026) ibclaw.in 627 NCLAT, Company Appeal (AT) (Insolvency) No. 1370 of 2024] held that;-.

• The power to recall a judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available 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.”

• Therefore, even in absence of a specific provision empowering the Tribunal to recall its order, the Tribunal has power to recall its order. However, such power is to be exercised sparingly, and not as a tool to re-hear the matter. Ordinarily, an application for recall of an order is maintainable on limited grounds, inter alia, where (a) the order is without jurisdiction; (b) the party aggrieved with the order is not served with notice of the proceedings in which the order under recall has been passed; and (c) the order has been obtained by misrepresentation of facts or by playing fraud upon the court/ Tribunal resulting in gross failure of justice.”

• 
  

Excerpts of the Order;

The present appeal has been filed by Mr. Chandar Narayan Chavan against the impugned order dated 12.06.2024 passed by the NCLT, Mumbai in Intervention Petition No. 31/2023 in CP(IB) No. 3574/MB/2019 filed by the Appellant, wherein the Ld. NCLT dismissed the said Intervention Petition.

# 2. In the Intervention Petition No. 31/2023, the Applicant/Appellant had sought two main reliefs as follows:

• “(i) The Adjudication Authority be graciously pleased to allow the present intervention application and pass an order allowing the Applicant herein to intervene as party in the above-captioned Company Petition; and

• (ii) The Adjudicating Authority be further pleased to pass an order to recall/vacate the Order dated 27.05.2021 being without jurisdiction and contrary to law.”

# 3. The aforesaid Intervention Petition was dismissed by the Ld. NCLT vide order dated 12.06.2024, and being aggrieved by it the present appeal has been filed.

# 4. The brief facts of this case are as under:

i. CP(IB) No. 3574/MB/2019 was filed by Mr. Indranil Das and Mrs. Nandita Das under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the ‘IBC, 2016’) seeking to initiate Corporate Insolvency Resolution Process (hereinafter referred to as the ‘CIRP’) against M.D. Devcon Private Limited (hereinafter referred to as the ‘Corporate Debtor’) alleging default in payment of financial debt.

ii. The Corporate Debtor was carrying on business of construction and development and one of upcoming residential project known as “SAVANNAH” was being constructed on land bearing CTS No. 1285 A/E, Kanjurmarg (East), Mumbai.

iii. The Petitioners, Mr. Indranil Das and Mrs. Nandita Das were allotted Flat No. 1504 on the 15th Floor vide letter allotment dated 25.08.2019.

iv. The Corporate Debtor failed to start the project and the Petitioners wrote letter dated 08.09.2016 and finally, on 13.12.2016 had sent the final termination letter of allotment and requested the Corporate Debtor to refund the amount with interest as per clause 9 of the allotment letter.

v. As per clause 9 of the allotment letter it was clearly mentioned that if the Corporate Debtor fails to execute the agreement for sale or fails to start the construction, then the Petitioners had the right to terminate the letter of allotment and claim the refund amount paid under the allotment letter along with interest @ 15% p.a.

vi. The Petitioners filed the following chart giving the total amount payable by the Corporate Debtor:

Sr. No	Amount paid	Interest@l5% p.a. From 24.09.2019 (i.e. date of filing the petition)	Amount due up to date of filing of petition
	Rs. 19,00,000/-	Rs. 8,78,750/-	Rs. 27,78,750/-
		Total	27, 78, 750/ –

vii. The Petitioners submitted before the Ld. NCLT that FIR has been registered against the Corporate Debtor and the matter is under investigation by Economic Offences Wing and one of the Directors of the Respondent company was arrested and recently granted bail by the Hon’ble Metropolitan Magistrate, 47th Court, Mumbai.

viii. The Ld. NCLT vide order dated 27.05.2021 admitted the Corporate Debtor into CIRP and appointed Mr. Kedar Parshuram Mulye as the Insolvency Resolution Professional (hereinafter referred to as the ‘IRP’).

ix. The Intervention Petition of the Applicant/Appellant requesting for intervention in the company petition bearing CP(IB) No. 3574/MB/2019 and recall of the order dated 27.05.2021 was rejected through the impugned order, as under:

• “15. We have carefully scrutinized the matter and have given due weightage to the rival contentions.

• 16. The Applicant/Intervenor seeks to challenge the Admission Order dated 27.05.2021, primarily on the basis that the Petition/ Application filed under Section 7 of the Code failed to meet the statutory threshold as outlined in the second and third proviso to Section 7(1) of the Code. This threshold requires a minimum of either 100 allottees or 10% of the total allottees within the same real estate project, whichever is lower, to file an application u/s 7 of the Code. It is contended that the present challenge does not constitute a mere recall petition but rather entails a review of the order on its substantive merits. We agree with this contention. However, it is crucial to distinguish between a review petition and a recall petition. A review petition prompts the Court to assess the merits of the case, typically when there is a glaring error evident on the face of the record. On the other hand, a recall petition does not delve into the substantive merits but rather focuses on retracting an order passed without affording an opportunity for affected parties to be heard. A five-member bench of the Hon’ble NCLAT in Union Bank of India v/s. Dinakar T.Venkatasubramanian had held (vide its Judgment dated 25th May, 20 No. 3961 of 2022 in Company Appeal (AT)(Ins.) No. 729 of 20 that though the power to review is not conferred upon the Tribunal but power to recall its judgment is inherent in the Tribunal and is preserved by Rule 11 of the NCLT rules,2016. This decision of NCLAT was upheld by a two-judge Bench of the Hon’ble Supreme Court of India vide its Order dated 31.07.2023 passed in Civil Appeal No.4620 of 2023 viz. Union Bank of India vs. Financial Creditors of M/s. Amtek Auto Ltd. & Others. Thus, it is firmly established in legal precedents that neither the Adjudicating Authority nor the Appellate Authority possesses jurisdiction to review their own orders. Indeed, if the Order dated 27.05.2021 is vacated due to the failure of the above-captioned Company Petition to meet the statutory threshold as outlined in the second and third proviso to Section 7(1) of the Code, then, such action, in our considered view, would constitute a review rather than a recall. Hence, we are not inclined to vacate the Order dated 27.05.2021. Accordingly, the prayer made by the Applicant/Intervenor in terms of Para 29, Clause B stands rejected.

• 17. The Hon’ble Supreme Court of India in Budhia Swain & Ors. v/s. Gopinath Deb & Ors. [Citation: (1999) 4 SCC 396] has held as follows:

• “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 judgment,

• (iii) 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 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.”

• (Emphasis Supplied)

• The Hon’ble Supreme Court of India Greater Noida Industrial Development Authority v/s. Prabhjit Singh Soni & Anr. vide Judgment dated February 12, 2024 in Civil Appeal Nos. 7590-7591 of 2023 as follows:

• “50. …. Therefore, even in absence of a specific provision empowering the Tribunal to recall its order, the Tribunal has power to recall its order. However, such power is to be exercised sparingly, and not as a tool to re-hear the matter. Ordinarily, an application for recall of an order is maintainable on limited grounds, inter alia, where (a) the order is without jurisdiction; (b) the party aggrieved with the order is not served with notice of the proceedings in which the order under recall has been passed; and (c) the order has been obtained by misrepresentation of facts or by playing fraud upon the court/ Tribunal resulting in gross failure of justice.”

• (Emphasis Supplied)

• 18. If the Applicant/Intervenor was aggrieved by the Order dated 27.05.2021 passed by the Adjudicating Authority u/s 7 of the Code, then it was open to him to impugn the aforementioned Order in appeal before the Appellate Authority u/s 61 of the Code. However, the said remedy was not pursued. Consequently, we cannot permit the Applicant/ Intervenor to utilize the Tribunal’s inherent power of recall as a means to revisit or re-hear the matter. It is firmly established in legal doctrine that objectives which cannot be attained directly cannot be pursued indirectly. Hence, by allowing the time limit for filing an appeal under Section 61 of the Code to expire, the Applicant/ Intervenor is deemed to have forfeited his right to contest the Admission Order. Therefore, he cannot now seek to achieve the same outcome indirectly by requesting a recall of the aforementioned order.

• 19. The Admission Order dated 27.05.2021 cannot be said to have been passed by the Adjudicating Authority without jurisdiction, nor is it the case of the Applicant that he was a party to the case who was not served with notice of the proceedings in which the order under recall has been passed. Although the Applicant has alleged collusion between the Petitioner and the Corporate Debtor in the aforementioned Company Petition, such allegations remain unsubstantiated by any documentary evidence or material on record. Furthermore, the initiation of a civil suit against the Corporate Debtor holds no relevance to the proceedings under Section 7 of the Code. Consequently, the accusations of concealment and misrepresentation of facts are entirely unfounded. The Applicant has failed to establish any valid grounds for the recall of the Order dated 27.05.2021, and thus, the present application warrants dismissal.

• 20. The Admission Order was issued on 27h May 2021, whereas the present application was filed by the Applicant on 26th June 2023, resulting in a time gap of over 2 years. The Applicant has failed to provide a satisfactory explanation to the Bench regarding the reason for this significant delay in filing the current application. The Applicant has stated in Paragraph 20 of their application that they became aware of the name of the proposed IRP, Mr. Partha Sarathy Sarkar, for the first time on 03.01.2023. Additionally, in Paragraph 23 of the application, the Applicant mentions that their advocates only learnt of the email address of the advocates for the CoC handling the Company Petition in question on 12.06.2023, following which they promptly contacted them for all relevant documents and proceedings. However, in our assessment these explanations do not sufficiently justify the time lag or the delay in filing the present application. Therefore, the instant application is liable to be dismissed on the grounds of delay and laches.

• 21. The Hon’ble NCLAT in Vekas Kumar Garg v/s. DMI Finance Pvt. Ltd. (Citation: 2021 SCC Online NCLAT 72) has held as follows:

• “3. After hearing learned counsel for the Appellant and going through the record, we are of the view that the ground projected by the Appellant in his capacity as Resolution Professional of NDL for seeking impleadment in CP IB21 15/ ND/2019 pending consideration before the Adjudicating Authority does not warrant impleadment of Appellant as party Respondent. In an application under Section 7, the Financial Creditor and the Corporate Debtor alone are the necessary party and the Adjudicating Authority iS, at the pre-admission stage, only required to satisfy itself that there is a financial debt in respect whereof the Corporate Debtor has committed a default warranting triggering of CIRP. The Adjudicating Authority is required to satisfy itself in regard to there being a financial debt and default thereof on the part of the Corporate Debtor besides the application being complete as mandated under Section 7(5) of the ‘I&B Code’ and then pass an order of admission or rejection on merit as mandated under subsection (4) of Section 7 within 14 days. No third-party intervention is contemplated at that stage.”

• (Emphasis Supplied)

• The Hon’ble NCLAT in Prayag Polytech Pvt Ltd. v/s. Hind Tradex Ltd. (Citation: 2019 SCC Online NCLAT 1029) had observed as follows:

• “4. From the plain reading of Section 7 of IBC it is clear that the Adjudicating Authority, on being satisfied and if the application is complete, after notice and hearing the ‘Corporate Debtor’, may either admit the application or reject it. The Hon’ble Supreme Court also noticed the aforesaid mandate of law. In that view of the matter, we are of the view that there is no requirement for intervention of any Directors or shareholders of the ‘Financial Creditor’ or any other party before admission of Application under Section 7 of IBC. If the application is admitted, it would be open to any aggrieved party to move before this Appellate Tribunal.”

• (Emphasis Supplied)

• 22. Based on the precedents established by the Hon’ble NCLAT, as referenced in the preceding paragraph, it is our considered opinion that in an application filed under Section 7 of the Code, the Applicant-Financial Creditor and the Corporate Debtor are the only necessary parties, and no third-party intervention is envisaged at that juncture. During the pre-admission phase, the sole requirement is to satisfy the conditions stipulated under Section 7, namely the existence of a financial debt and default on the part of the Corporate Debtor. Therefore, there is no necessity to involve any other party prior to the admission of an application under Section 7 of the Code, 2016. Consequently, we find that the Applicant lacks the standing to intervene at either the pre-admission or post-admission stages of the Corporate Insolvency Resolution Process (CIRP) of the Corporate Debtor. Thus, in regards to the plea for intervention, the present application is subject to dismissal due to a lack of locus.

• 23. 23.1. Counsel for the Applicant/ Intervenor has drawn our attention to the judgment of Hon’ble Supreme Court of India in Beacon Trusteeship Ltd. v/s. Earthcon Infracon Pvt Ltd. [Citation: 2020 SCC Online SC 1233] pleaded by the Applicant to buttress his submission that intervention can be allowed and the intervenors have to be heard before any order of admission u/s 7 of the Code is passed for initiating CIRP of the Corporate Debtor. We have gone through the aforesaid ruling of the Hon’ble Apex Court. The aforesaid ruling does not deal with the issue of intervention. The Hon’ble Apex Coya Beacon Trusteeship case (supra) had held as follows:

• “7. Considering the provision of Section 65 of the IBC, it is necessary for the Adjudicating Authority in case such an allegation is raised to go into the same case, such an objection is raised or application is filed before the Adjudicating Authority, obviously, it has to be dealt with in accordance with law. The plea of collusion could not have been raised for the first time in the appeal before the NCLAT or before this Court in this appeal. Thus, we relegate the appellant to the remedy before the Adjudicating Authority.

• 8. In case, a proper application is filed, aspect whether the proceedings have been initiated in collusive manner will be looked into, in accordance with law and the appropriate orders have to be passed, considering the facts and circumstances of the case. We have made it clear that we have not commented on the merit of the case. We set aside the impugned order passed by the NCLAT and dispose of the appeal in accordance with the aforesaid direction.”

• 23.2. From a straightforward interpretation of the quoted judgment, it is evident that whenever allegations of fraud, collusion, or malicious intent are raised or an application to that effect is filed before the Adjudicating Authority, it is incumbent upon the Authority to look into the same and pass appropriate orders. If the Applicant/Intervenor had asserted during the proceedings of the aforementioned petition that collusion existed between the Petitioners/Financial Creditors and the Corporate Debtor, and if the Adjudicating Authority had passed the Admission Order dated 27.05.2021 without affording the Applicant/Intervenor an opportunity to be heard or without considering his objections, then the Applicant/ Intervenor’s case would align squarely with the principles outlined in the referenced ruling. However, in the present case, during the proceedings of the aforementioned Company Petition, no objections of fraud, collusion, or malice were raised by the Applicant/ Intervenor, nor was any application to that effect filed. Consequently, the ruling cited by the Applicant/ Intervenor is irrelevant to the circumstances of the current case and thus not applicable.

• 24. No further contentions have been raised on behalf of the Applicant/ Intervenor, Thus, there are no remaining issues to be addressed.

• 25. Therefore, based on the aforementioned discussions, analysis, and findings, we hold the opinion that the application in question should be dismissed. Accordingly, Intervention Petition No. 31 of 2023 is hereby dismissed, with no order as to costs.”

# 5. The Ld. Counsel appearing for the Appellant submitted that they were 725 homebuyers in the project and Suit was pending before the Hon’ble Bombay High Court and only allotees of one Flat, namely, Mr. Indranil Das and Mrs. Nandita Das had filed the petition under Section 7 of the IBC, 2016.

5.1 It is the submission of the Ld. Counsel for the Appellant that as per amended Section 7, a petition underSection 7 can be filed jointly by not less than 100 allotees or not less than 10% of the total allotees under the same real estate project, whichever is less.

5.2 It is submitted that as per third proviso to Section 7, the pending applications were to be modified to comply with the requirements of second proviso within 30 days of the commencement of the amendment Act, 2020 i.e. within 30 days of 28.12.2019. The relevant portion of Section 7 is as under: . . . .

5.3 It is submitted that since the provisions of third proviso of Section 7 were not complied with, the order of Ld. NCLT dated 27.05.2021 was bad in law and should have been recalled by the Ld. NCLT.

# 6. Heard. Perused the records.

# 7. Though the Appellant has alleged collusion between original petitioners and the Corporate Debtor, no evidence regarding this was presented before the Ld. NCLT or this Tribunal. We note that there was considerable delay and laches in filing the Intervention Petition as the order for admission under Section 7 was passed on 27.05.2021 whereas the Intervention Petition seeking intervention and recall was filed in June, 2023 after more than two years.

# 8. The Ld. NCLT has power to recall its own order but has no power to review its own order. We now examine the pre-conditions to exercise power of recall of order. The Hon’ble Supreme Court in the case of Budhia Swain & Ors. v/s. Gopinath Deb & Ors., reported in [(2017) ibclaw.in 282 SC] : (1999) 4 SCC 396 has held as under:

• “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 judgment,

• (iii) 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 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.”

• (Emphasis Supplied)

# 9. The Hon’ble Supreme Court in the case of Greater Noida Industrial Development Authority v/s. Prabhjit Singh Soni & Anr. [(2024) ibclaw.in 53 SC] vide Judgment dated February 12, 2024 in Civil Appeal Nos. 7590-7591 of 2023 as follows:

• “50. …. Therefore, even in absence of a specific provision empowering the Tribunal to recall its order, the Tribunal has power to recall its order. However, such power is to be exercised sparingly, and not as a tool to re-hear the matter. Ordinarily, an application for recall of an order is maintainable on limited grounds, inter alia, where (a) the order is without jurisdiction; (b) the party aggrieved with the order is not served with notice of the proceedings in which the order under recall has been passed; and (c) the order has been obtained by misrepresentation of facts or by playing fraud upon the court/ Tribunal resulting in gross failure of justice.”

• (Emphasis supplied)

# 10. This Tribunal in the case of Col. Ashish Khanna, SM (Retd) v/s Delhi Gymkhana Club Limited & Anr. [(2025) ibclaw.in 1113 NCLAT] in I.A. No. 6314 of 2025 in Company Appeal (AT) No. 203 of 2025 has held as under:

• “8. ………There is no doubt to the preposition of law that this Tribunal has a power to recall its own order but such power can be exercised only when (i) order passed is without jurisdiction; (ii) it is obtained by practicing fraud or collusion; (iii) there exists a fundamental procedural error viz necessary party not being served; (iv) the order being passed on misunderstanding of facts which resulted in prejudice to a party; (v) and gross failure of justice.

• 9. We do not find any of the ingredients of (i) to (v) as above; necessary for recall of the judgment/order dated 08.09.2025, present in this application, and hence we are not inclined to allow this application and we dispose it of as above……..”

# 11. In the present case, the Ld. NCLT has rightly noted that during the pre-admission phase, the sole requirement is to satisfy the conditions stipulated under Section 7 of the IBC, namely the existence of financial ‘debt’ and ‘default’ on the part of the Corporate Debtor and that the Applicant/Financial Creditor and Corporate Debtor are only necessary party, and no third-party intervention is envisaged at this stage. Since intervention was not allowed there was no question of any notice or hearing being granted to the Applicants in the Intervention Petition. We concur with the decision of Ld. NCLT in not allowing intervention.

3 12. From the facts of this case, we find that none of the ingredients which are pre-requisite for recalling of the order are present in this case. There is no case to recall the order as the order was not without jurisdiction, no fraud or collusion was proved, there was no fundamental procedural error, namely, service on the necessary party, there was no misunderstanding of facts or gross failure of justice. Regarding compliance of third proviso to Section 7 of the IBC, 2016, we find that the petition under Section 7 has been admitted on the basis of financial debt, which was above the threshold as prescribed then under Section 4 of the IBC, 2016. We note that the Petitioners were no longer homebuyers, as they had invoked clause 9 of the allotment letter and exercised the option of cancellation of allotment and to seek refund along with interest and thus, they can no longer be treated as homebuyers. It was a debt of Rs. 19,00,000/- plus interest which was due from the Corporate Debtor. In the circumstances, there was no necessity to comply with the provisions of third proviso of Section 7 of the IBC, 2016.

# 13. In conclusion, on the basis of above analysis, we find no reason to interfere in the impugned order of Ld. NCLT. The appeal is accordingly dismissed. No order as to costs. Pending application(s), if any, are also disposed of.

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