National Company Law Appellate Tribunal
Vivek Goel vs M/S Pooja Finelease Ltd & Anr on 10 April, 2024
Author: Ashok Bhushan
Bench: Ashok Bhushan
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Company Appeal (AT) (Insolvency) No. 152 of 2020
IN THE MATTER OF:
Vivek Goel ...Appellant
Versus
Pooja Finelease Ltd. & Anr. ...Respondents
Present:
For Appellant : Mr. M.P. Sahay, Ms. Awantika and Mr. Sachin
Kharb, Advocates.
For Respondents : Mr. Rajendra Beniwal, Mr. Saksham Solanki, Ms.
Shivangi Ghosh and Ms. Richa, Advocates.
ORDER
(Hybrid Mode) 10.04.2024 : I.A. No. 2395 of 2024 This is an application praying for following orders:
"i. Take the present application on record and into onsideration; and ii. Allow the present application and recall order dated 1.3.2024 passed by this Hon'ble Appellate Tribunal in I.A. no. 2316 / 2023 in Company Appeal (AT) (Ins.) no. 152 / 2020 tilted Viveck Goel Vs. Pooja Finelease and Anr. (now Akasa Finance Pvt. Ltd.); and iii. Waive off the cost imposed vide order dated 1.3.2024 passed by this Hon'ble Appellate Tribunal in I.A. no. 2316 / 2023 in Company Appeal (AT) (Ins.) no. 152 / 2020 titled Viveck Goel Vs. Pooja Finelease and Anr. (now Akasa Finance Pvt. Ltd.); and Pass any other further order as this Appellate Tribunal may deem fit and proper under the facts and circumstances of the instant case."
2. This application I.A. 2316 of 2023 was heard by this Tribunal on 01.03.2024. Counsel for present Applicant who was Appellant in the Appeal was also heard and order was passed after hearing.
3. Learned Counsel for the Applicant in support of the submission submits that certain facts have been missed out in the judgment of this Tribunal dated 01.03.2024. Hence, the order be recalled. He further submits that he confines his prayer to the deletion of the order by which the cost was imposed.
4. The jurisdiction of this Tribunal to recall an order has already been stated by the 5 Member Bench of this Tribunal in `Union Bank of India' Vs. `Dinkar T. Venkatasubramanian & Ors.' reported in 2023 SCC OnLine NCLAT 283. 5 Member Bench has held that the Tribunal has a power to recall however, it has no jurisdiction to review a judgment and the circumstances under which the Court can recall a judgment has also been noted. It was further held that the recall disguised as review cannot be entertained. In paragraphs 26 to 27 of the judgment, following has been laid down:
"26. In view of the law laid down by Hon'ble Supreme Court which holds that the Tribunal has inherent power to recall its judgment on appropriate grounds, the three-member bench judgment in "Agarwal Coal Corporation Private Limited" and "K.L.J Resources Ltd. & Anr." observing that the Tribunal does not have power to recall cannot be approved. The three-member bench judgments of this Tribunal insofar as observation that this Tribunal has no power to review, no exception can be taken to that part of the judgment. We, however, hold that the judgment laying down that this Tribunal has no power to recall the judgment does not lay down correct law.
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.
Comp. App. (AT) (Ins.) No. 152 of 2020 2 of 5 27.2 II & III: The judgment of this Tribunal in "Agarwal Coal Corporation Private Limited vs Sun Paper Mill Limited & Anr." and "Rajendra Mulchand Varma & Ors vs K.L.J Resources Ltd & Anr." observing that this Tribunal cannot recall its judgment does not lay down the correct law."
5. By the present application, although its styled as recall but Appellant is virtually asking the Court to review its judgment which was delivered after hearing the Appellant.
6. We are of the view that Application is misconceived on the ground which are submitted in the application the order cannot be recalled.
The application for recall is dismissed.
Comp. App. (AT) (Ins.) 152 of 2020
1. Heard Counsel for the Appellant and Respondent.
2. This Appeal has been filed against the order dated 20.12.2019, by which order Adjudicating Authority has admitted the Section 7 application filed by the Financial Creditor/the Respondent herein. In Part IV of the application following was claim as the `debt' and `default':
"PART IV PARTICULARS OF FINANCIAL DEBT 1 TOTAL AMOUNT OF Total Amount of Debt Granted and DEBT GRANTED Disbursed:
DATE(S) OF Rs. 80,00,000/- (Rupees Eighty DISBURSEMENT lakhs only) Date of Disbursement as per original loan agreements are 29- June-2018 and 13-Feb-2019 respectively.
2 AMOUNT CLAIMED TO Rs. 66,76,565/- Rs. Sixty Six BE IN DEFAULT AND Lakhs Seventy Six thousand Five THE DATE ON WHICH Hundred Sixty Five only as on THE DEFAULT June 7, 2019.
OCCURRED (ATTACH THE WORKINGS FOR The break-down is as follows:
Comp. App. (AT) (Ins.) No. 152 of 2020
3 of 5 COMPUTATION OF Description Amount AMOUNT AND DAYS OF Receivable DEFAULT IN TABULAR Outstanding Rs. 65,861,97/-
FORM) Amount as on
June 7, 2019
Total penalty Rs. 90,368/-
arrears/
charges
Other pending NIL
charges/
interest
Date of default:
The date of default as per the
Loan Agreement is 15-Mach-
2019.
3. The Adjudicating Authority issued notices. Reply was filed by the Corporate Debtor. In the Reply, the Adjudicating Authority noticed the Reply of the Respondent, in paragraph 2 (ii) following was stated:
"(ii) Since availing the financial assistance from the Applicant, the debtor has continuously been paying installments on time. Subsequently, seeing the performance the Applicant sanctioned finance in February 2019, however due to the huge loss in the business, the Respondent could not maintain the regular repayment."
4. Adjudicating Authority after hearing the parties noted that the only submission expressed by the Respondent is to pay the amount in instalment due to loss in their auto business.
5. The Adjudicating Authority held that the Financial Creditor has proved the `debt' and `default'. It is well settled that when debt and default has been proved, Adjudicating Authority had to admit Section 7 application more so, looking to the pleadings of the Corporate Debtor before the Adjudicating Authority as noticed in paragraph 2(ii) as above. Comp. App. (AT) (Ins.) No. 152 of 2020 4 of 5
6. We are of the view that no ground has been made out to interfere in the impugned order admitting Section 7 application.
The Appeal is dismissed.
[Justice Ashok Bhushan] Chairperson [Arun Baroka] Member (Technical) himanshu/nn Comp. App. (AT) (Ins.) No. 152 of 2020 5 of 5