National Company Law Appellate Tribunal
Venkata Sivakumar V vs Idbi Bank Ltd on 22 March, 2024
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
AT CHENNAI
(APPELLATE JURISDICTION)
Review Application No. 3 / 2024
in
Comp. App (AT) (CH) (INS) No. 8 / 2022
(Arising out of Order dated 05.01.2024, passed by the
National Company Law Appellate Tribunal, Chennai Bench in
Comp App (AT) (CH) (INS) No. 8 / 2022 in CP No. 1307 / 2018)
In the matter of:
Adv. (CA) V. Venkata Sivakumar
Erstwhile Liquidator of
M/s. The Jeypore Sugar Co. Ltd. .... Petitioner
V.
Hari S. Hari Karthik
New Liquidator of
M/s. The Jeypore Sugar Company Ltd.
No. 3, A Block,
Tamil Nadu Police Housing Quarters,
Bharathi Avenue, 2nd Street,
Kottur, Chennai - 600085 .... Respondent No.1
M/s. IDBI Bank Limited,
Branch Office at 115,
Anna Salai, Saidapet,
Chennai - 600015 .... Respondent No. 2
Bank of India
Chennai Mid Corporate Branch
IV Floor, Tarapur Towers,
No. 826, Anna Salai,
Chennai - 600002 .... Respondent No. 3
Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022
Page 1 of 34
Pridhvi Asset Reconstruction and
Securitization Company Limited
No. 1-55, Raja Prasasadamu
4th Floor, Wing 1, Majid Banda Road,
Kondapur, Hyderabad - 500001 .... Respondent No. 4
Bank of Baroda
Stressed Asset Management Branch
No. 45, Moor Street,
IBAS Building, 4th Floor,
Chennai - 600001 .... Respondent No. 5
Indian Overseas Bank
Branch Office at:
Asset Recovery Management Branch
No. 762, Anna Salai,
Chennai - 600002 .... Respondent No. 6
The District Cooperative Central Bank Ltd.
Branch Office at:
Panuganti Vari Street,
R.R. Pet, Eluru,
West Godavari District - 534002 .... Respondent No. 7
M/s. Kineta Global Limited
In Consortium with Power Mech Projects Limited
Rep. by Authorised Signatory &
Asst. General Manager
Mr. P. Satyanarayana,
4th Floor, Kineta Towers, Plot No. 51 to 54,
Journalist Colony, Road No. 3,
Banjara Hills, Hyderabad - 500034 .... Respondent No. 8
M/s. Aaria Projects Limited
Represented by Mr. CH. Venkateswara Rao
Flat No. 1-206, Divya Sakthi Complex Green Lands,
Ameerpet, Hyderabad - 500016 .... Respondent No. 9
M/s. Synergy Holdings
Rep. By Mr. Inuganti Murali Krishna
1101, A Block, Quiescent Heights,
Raheja Mind Space, Madhapur,
Hyderabad - 500081 .... Respondent No.10
Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022
Page 2 of 34
Present:
For Petitioner : Mr. V. Venkata Sivakumar (In person)
For Respondent No. 1 : Mr. J. Manivannan, Advocate
For New Liquidator
For Respondent Nos.2-7 : Mr. Varun Srinivasan, Advocate
ORDER
(Hybrid Mode) Justice M. Venugopal, Member (Judicial):
Preface:
The Petitioner / Erstwhile Liquidator of M/s. The Jeypore Sugar Co. Ltd., has filed the Review Petition No. 3 / 2024 in Comp. App (AT) (CH) (INS) No. 8 / 2022 (under Rule 11 of NCLAT Rules, 2016), in respect of the `Impugned Order' dated 05.01.2024, passed by this `Tribunal' in Comp. App (AT) (CH) (INS) No. 8 / 2022.
2. According to the Petitioner (appearing in person), he was the `Erstwhile Liquidator', and against whom serious false allegations were made, resulting in an erroneous Order, being passed on 05.01.2024 in main Comp. App (AT) (CH) (INS) No. 8 / 2022, by this `Appellate Tribunal'.
3. According to the Review Petitioner, the `Impugned Order', dated 05.01.2024 in Comp. App (AT) (CH) (INS) No. 8 / 2022, was passed by this Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 3 of 34 `Appellate Tribunal', without hearing him, as an `Aggrieved' and `Necessary Party' and therefore, the `Order', is `Void Ab Initio' and `Non-Est' one.
4. The Petitioner points out that a `Necessary Party' is one, without whom, `no effective order', can be made. The question is, whether the presence of a `Particular Party', is necessary in order to enable the Court(s), effectively and completely, to adjudicate upon and settle all the questions, which are involved in the Petition and refers to the decisions in (i) A. Janardhana v. Union of India, reported in AIR 1983 SC 769: (1983) 3 SCC 601; (ii) State of Himachal Pradesh v. Kailash Chand Mahajan, AIR 1992 SC 1277, 1308 : 1992 Supp (2) SCC 351: and (iii) Harcharan Singh Vs. Financial Commissioner, Revenue, Punjab, Chandigarh, AIR 1977 P & H 40.
5. The Petitioner submits that the New Liquidator / the 1 st Respondent, had obtained the `Order' dated 05.01.2024 in Comp. App (AT) (CH) (INS) No. 8 / 2022, by suppressing serious issues of `Fraud', `Cheating' and `Obstruction of Liquidation Process', by the Senior Officials of IDBI Bank Limited, causing `Rupees Hundreds of Crores of Loss', to the `Government Bank', and hence, liable for `Criminal Contempt Procedure', attracting Section 2(c) of the Contempt of Courts Act, 1971.
6. According to the Petitioner, the 1st Respondent / New Liquidator of M/s. The Jeypore Sugar Co. Limited, had willfully misled this `Tribunal', by Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 4 of 34 claiming that the Comp. App (AT) (CH) (INS) No. 8 / 2022, has become an `Infructuous' one, even without submitting the `Memo', as directed by this `Tribunal', and obtained an `Order', by playing `fraud' on this `Tribunal', without disclosing the issues involved, in protecting the Ex-promoters.
7. The Petitioner contends that the 1st Respondent / New Liquidator, had totally disregarded the Judgment of this `Tribunal' in Comp. App (AT) (CH) (INS) No. 302 / 2021, when the `Order', had specifically directed him to first complete the process of including the Rayagada Land in the `Asset Memorandum', as the land of 282 Acres is still with the `Orissa Government', and then, `value the Property', before embarking on Section 230 of the Companies Act, 2013 `Scheme', which starts with Public Announcement. However, the 1st Respondent / New Liquidator went ahead and gave the `Public Announcement'.
8. The Plea of the Petitioner is that this `Tribunal', had failed to appreciate that `Liquidation Process', is a `continuous process', and the `Insolvency Professionals', appointed as Liquidator, can always change, due to removals / additions. Also that the `acts', performed by the `Erstwhile Liquidator', will have to be respected / honoured as a Public Servant and the `Officer of the Court', having `Quasi-Judicial Powers'.
Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 5 of 34
9. The Petitioner, comes out with a Plea that `overruling' the decision requiring permission of this `Tribunal', under whose supervision the `Liquidation Process', is expected to be monitored, according to the I & B Code, 2016, and the issue of `Locus Standi', is very much `inbuilt' into the `Adjudicating Mechanism', and the `Ex-Liquidator', becomes a `Necessary Party'.
10. The Petitioner submits that in the Full Bench decision of this `Tribunal', in Union Bank of India v. Dinkar T. Venkatasubramanian & Ors., reported in 2023 ibclaw.in 381 NCLAT, at Paragraph 8, wherein, it is observed as under:
8. ``In our opinion a tribunal or a court may recall an order earlier made by it if Ground 1: The proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent.
Ground 2: There exists fraud or collusion in obtaining the judgment. Ground 3: There has been a mistake of the court prejudicing a party, or Ground 4: 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.'' and the grounds of the Petitioner are in accordance with the Full Bench decision of this `Tribunal' in Union Bank of India v. Dinkar T. Venkatasubramanian & Ors.
Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 6 of 34
11. The grievance of the Petitioner, is that `no opportunity', was given to him, who being a `Necessary Party' and that the `Adjudicating Authority' / `Tribunal', Chennai Bench, through an `Order' in IA No. 815 / 2020, had replaced the Petitioner with effect from 01.07.2022, when the Petitioner came to know on 06.07.2022 (Order being uploaded), about his `removal'.
12. According to the Petitioner, in the IA No. 815 / 2020, there were severe allegations made against his `integrity', `character' and `efficiency', and as such, he is to defend the same to protect his honour.
13. According to the Petitioner, the `actual compensation', receivable is only Rs.12.33 Lakhs and not Rs.500 Crores, as presumed by the `Tribunal', based on IDBI Bank's false pleadings.
14. Further, the Petitioner points out that he was not given a minute to defend his case, even though, he is an `Affected Party' as `Mala fides', were attributed upon him. Also that, the `New Liquidator', is not at all an `Affected Party', had played a `Fraud', to protect the `Ex-promoters' and `IDBI Bank Limited', withdrew the `Appeal', mentioning the `Appeal', as `Frivolous'.
15. According to the Petitioner, the `Promoters' and the `IDBI Bank', had filed several cases and are threatening to file many more, which may include `Criminal Prosecution', and in this `Petition', the Petitioner is to defend the Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 7 of 34 Learned Senior Counsels of the Respondents, if one goes by the past or making serious allegations, such as `Fraud', `Criminal Breach of Trust', etc.
16. The Petitioner submits that from the `Order', passed by the Hon'ble Orissa High Court on 16.03.2022 in WP No. 4490 / 2015 that Compensation is to be given, which was affirmed by the 7th Respondent / Liquidator through his email dated 16.03.2022, and therefore, it implies that the `Valuation', should be conducted `afresh' and `fresh Schemes', to be called for.
17. Added further, it is pointed out on behalf of the Petitioner that the `Corporate Debtor', has a right to claim `Compensation', in respect of the `Ceiling Surplus Land' at `Rayagada Property', considering the extent of 509.69 acres, in the teeth of the Order of the Hon'ble High Court of Orissa, in WP(C) 4490 / 2015 and hence, it is incumbent on the part of the 7th Respondent / Liquidator, to act in terms of the I & B Code, 2016 and Liquidation Regulation.
18. The Petitioner, points out that the 1st Respondent / new Liquidator has `no Jurisdiction', to function as the `Order' passed, is against the `Judicial Propriety', and refers to the Order in WP (C) 180 / 2022, NCLT Bar Association v. Union of India, wherein at Paragraphs Nos. 11 & 12, it is observed as under:
11. ``From the above narration, it appears that following the meeting of the Selection Committee on 20 April 2022, a report was obtained from the President of the NCLT about the ``work performance and suitability'' Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 8 of 34 of 23 Members. The Selection Committee then opined that there was no specific provision which empowered it to consider the issue of revising the term of Office of the Members of the NCLT. The Committee however observed that considering the sensitive nature of the functions and duties of the Members of the NCLT, and considering the verification reports bearing on the character, antecedents, performance and suitability of the Members, the Union Government may take ``appropriate action in the matter''.
12. Pursuant to the above process, a notification was issued on 14 June 2022 by the WP(C) 180 / 2022 Union Government in the Ministry of Corporate Affairs by which approval was granted for revising the tenure of two Judicial Members and six Technical Members for a period of five years or till they attain the age of 65 in consonance with the provisions of Section 413 of the Companies Act, 2013.''
19. The Petitioner, before this `Tribunal', takes a stand that the `Order' of the Hon'ble Division Bench of Madras High Court in WP No 14357 / 2021 dated 06.12.2021, between CA V. Venkata Sivakumar v. Union of India, MCA, Rep. by Secretary & 2 Ors., is overruled by the `Adjudicating Authority' / `NCLT', Chennai Bench. Further, he was removed based on issues, never agitated in IA No. 815 / 2020. Apart from that, according to the Petitioner, the `New Liquidator', is having `no experience', selected from `IBBI List of Highly Experienced Professionals' (Sl No. 17).
20. The Petitioner, before this `Tribunal', points out that Pothavaram Factory at Chagallu, Andhra Pradesh, `prior to initiation of `CIRP', was in the physical custody of the `IDBI Bank' (R-1), as a result of invoking Sec. 13(2) of SARFAESI Act.
Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 9 of 34
21. According to the Petitioner, the IDBI Bank Limited was given Forest land without water as Security, showing it as eligible for growing `Sugarcane' and `Production of Sugar', was also shown, to have been done, using the `unassembled Machinery', which was also approved by the 1st Respondent / IDBI Bank Limited.
22. It is represented by the Petitioner that the 2nd Respondent / IDBI Bank Limited, for their `Fraudulent Acts', had no choice, but, to give back the Company to the `Benamis' of the `Ex-promoters', through back door, put `lot of pressure' on the `Petitioner' to co-operate and finding that the `Petitioner', is not agreeing to the illegal acts of the `2nd Respondent / Bank', in conspiracy with the `Ex-promoters' and the `New Liquidator', influenced the `Judicial Process', and got the `Petitioner' removed (SR. 217 / 2020 & CA 816 / 2020).
23. The Petitioner points out that the 2nd Respondent / IDBI Bank, because of the `self Admission', in an Affidavit, before the Hon'ble Supreme Court of India, that he had not violated Regulation 7A, the basis for their Pleadings, before the `Adjudicating Authority' / `NCLT - Chennai Bench', in IA No. 815 / 2020. Later, in Comp App (AT) (CH) (INS) No. 269 / 2022 and Comp App (AT) (CH) (INS) No. 302 / 2021 and in Comp App (AT) (CH) (INS) No. 08 / 2022, favourable orders, being passed by this `Tribunal', without giving an opportunity of, being `Heard', as given below:
Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 10 of 34 ``It is the case of the Appellant that he need not to comply with Regulation 7A in strict sense since he had applied for AFA well in time on 29.12.2019 much before accepting the assignment of the `Liquidator'. As per Regulation 12A of the `Insolvency and Bankruptcy Board of India (Model Bye - Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016, vide Notification No. IBBI/2016- 17/GN/REG001, dated 21st November, 2016, the `AFA' was deemed to have been received on expiry of 15 days from the date of application. The `Appellant' received the communication of rejection of his application only on 16.07.2020 on telephone, hence, the `Appellant', was under valid assumption of having received deemed approval of the `AFA' and therefore, did not contravene any laws.''
24. According to the Petitioner / Erstwhile Liquidator, he filed the Comp. App (AT) (CH) (INS) No. 8 / 2022, to clear the false allegations, made by the `IDBI Bank', with a `mala fide intention', to protect their `fraudulent lending'.
25. According to the Petitioner / Erstwhile Liquidator, in order to protect the `Fraudulent' acts of `Promoters' and `IDBI Bank', the `new Liquidator', made a mention before the `Appellate Tribunal' for withdrawing the `Appeal', as a `Frivolous' one, on 04.01.2024.
26. It is represented on behalf of the Petitioner / erstwhile Liquidator that the `new Liquidator' / `1st Respondent' (Mr. Hari Karthik), had not given any reasons for withdrawing the Comp. App (AT) (CH) (INS) No. 8 / 2022, except orally mentioning that the `Appeal', is `Frivolous', `Suppressing the Illegal Nexus with IDBI Bank and the erstwhile Promoters'. As a matter of fact, the IA No. 621 / 2022 (For Impleadment) was not heard, but closed and the Comp. Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 11 of 34 App (AT) (CH) (INS) No. 8 / 2022, was `Dismissed as Withdrawn' on 05.01.2024, but without costs.
27. It is the version of the Petitioner that the NCLT / NCLAT was established as a `Quasi-Judicial Body', for dealing with `Corporate' disputes, that are arising under the `Companies Act', 2013. Further, NCLT / NCLAT, operates similarly to a `Civil Court of Law', in the Country and is required to impartially and fairly examine each Case facts and issues, make `decisions in conformity' with `natural justice principles', and pass `Orders', as a result of those determinations.
28. The Petitioner, points out that he being serious affected by the allegations exposing him to `civil consequences' of `Blacklisting', and hence, `an opportunity of being heard', is a `sine-qua-non' and therefore, the `Order', becomes `non-est' and `void-ab-initio'.
29. The Petitioner, points out the decision of the Hon'ble Supreme Court of India in Ratnagiri Gas & Power (P) Limited v. RDS Projects Limited (2013) 1 SCC at Page 524, wherein, at Paragraph 27, it is observed as under:
27. ``There is yet another aspect which cannot be ignored. As and when allegations of mala fides are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. In the absence of the person concerned as a party in his / her individual capacity it will neither be fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned. It is important to remember that a judicial Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 12 of 34 pronouncement declaring an action to be mala fide is a serious indictment of the person concerned that can lead to adverse civil consequences against him. Courts have, therefore, to be slow in drawing conclusions when it comes to holding allegations of mala fides to be proved and only in cases where based on the material placed before the Court or facts that are admitted leading to inevitable inferences supporting the charge of mala fides that the Court should record a finding in the process ensuring that while it does so, it also hears the person who was likely to be affected by such a finding.''
30. The Petitioner / Erstwhile Liquidator, adverts to the decision of the Hon'ble Supreme Court of India in Ayaaubhkan Noorkhan Pathan v. State of Maharashtra & Ors., reported in AIR 2013, SC 58, wherein, at Paragraph 23, it is observed as under:
23. ``A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Vaishampayan, AIR 1961 SC 1623, held that the rules of natural justice, require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party. Not providing the said opportunity to cross-
examine witnesses, would violate the principles of natural justice. (See also: Union of India v. T.R. Varma, AIR 1957 SC 882; Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719; M/s. Kesoram Cotton Mills Ltd. v. Gangadhar & Ors., AIR 1964 SC 708; New India Assurance Company Ltd . v . Nusli Neville Wadia and Anr., AIR 2008 SC 876; Rachpal Singh & Ors. v. Gurmit Singh & Ors., AIR 2009 SC 2448; Biecco Lawrie & Anr. v. State of West Bengal & Anr., AIR 2010 SC 142; and State of Uttar Pradesh v. Saroj Kumar Sinha, AIR 2010 SC 3131).'' Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 13 of 34
31. The Petitioner, refers to the decision of the Hon'ble Supreme Court in the matter of A.R. Antulay V. R.S. Nayak & Anr., reported in AIR 1988, 2 SCC at Page 602, wherein at Paragraph 159, it is observed as under:
159. `` But in certain cases, motions to set aside Judgments are permitted where, for instance a judgment was rendered in ignorance of the fact that a necessary party had not been served at all, and was wrongly shown as served or in ignorance of the fact that a necessary party had died, and the estate was not represented. Again, a judgment obtained by fraud could be subject to an action for setting it aside. Where such a judgment obtained by fraud tended to prejudice a non party, as in the case of judgments in-rem such as for divorce, or jactitation or probate etc. even a person, not eo-nomine a party to the proceedings, could seek a setting-
aside of the judgment.''
32. The Petitioner, relies upon the decision of the Hon'ble Supreme Court in Kapra Mazdoor Ekta Union V. Birla Cotton Spinning & Weaving Mills & Anr., reported in India Kanoon, wherein, it is observed as under:
`` ... He has to establish that the procedure followed by the Court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, in as much the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra), it was held that once Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 14 of 34 it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re- heard and decided again.''
33. The Petitioner, cites the decision of the Hon'ble Supreme Court in Maria Margarida Sequeira Fernandes V. Erasmo Jack de Sequeira, reported in 2012, 5 SCC at Page 370, wherein, at Paragraph 38, it is observed as under:
38. ``Certainly, the above, is not true of the Indian Judicial system. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest". In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.''
34. The Petitioner, has relied on the following decisions:
(a) Asit Kumar Kar V. State of West Bengal (2009) 2 SCC 703.
(b) Harinagar Sugar Mills Limited V. Shyam Sundar Jhunjhunwala AIR 1961 SC 1669.
(c) SREI Infrastructure Finance Limited V. Tuff Drilling Pvt. Ltd.(2018), 11 SCC 470.
(d) Budhia Swain v. Gopinath Deb (1999), 4 SCC 396.
(e) Indian Bank V. Satyam Fibres India Pvt. Ltd., AIR 1996, SC 2592.
(f) Grindlays Bank Ltd. V. Central Government Industrial Tribunal, Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 15 of 34 (1980) Supp SCC 420.
(g) Agarwal Coal Corporation Pvt Ltd. V. Sun Paper Mill Ltd. (2021) SCC OnLine NCLAT 367.
(h) K.L.J. Resources Limited V. Rajendra Mulchand Varma (2022) SCC On-Line NCLAT 402.
(i) Union Bank of India V. Financial Creditors of M/s. Amtek Auto Limited & Ors. (vide Order dated 31.07.2023 of Hon'ble Supreme Court of India in Civil Appeal No. 4620 of 2023).
35. The Petitioner, therefore, prays for allowing the `Review Application No. 3 / 2024', by recalling the `Order', dated 05.01.2024 in Review Application No. 3 / 2024 in Comp App (AT) (CH) (INS) No. 08 / 2022, and to expunge all the adverse remarks, made against him, by this `Tribunal', relying only on the false pleadings of the `2nd Respondent / IDBI Bank', and the `New Liquidator'. Further, this `Tribunal', may issue directions for initiating `Perjury Proceedings', against the `Respondent Nos. 1 & 2', to protect `Authority' and `Majesty' of this `Tribunal', and thus restore the `Purity of Administration of Justice'.
Pleas of Respondent Nos. 2 to 7:
36. Per contra, Mr. Varun Srinivasan, Learned Counsel for R2 to R7, submits that the instant Review Application No. 3 / 2024 in Comp App (AT) (CH) (INS) Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 16 of 34 No. 08 / 2022, filed by the Petitioner / Erstwhile Liquidator (in person) is `not maintainable' (in the `absence of there being vested `Statutory Powers of Review', as `Power of Review', being a `Creation of Statute', and `Power of Recall', can be pressed into service, as an alternative substitute for `Review'), before this `Tribunal', and hence, the Review Application No. 3 / 2024 in Comp. App (AT) (CH) (INS) No. 08 / 2022, is liable to be dismissed in limine.
37. On behalf of Respondent Nos. R2 to R7, it is pointed out, before this `Tribunal', that the 2nd Respondent / IDBI Bank, along with the assent of other `Secured Creditors', had filed IA No. 815 / 2020, before the `Adjudicating Authority' / `NCLT', Chennai Bench, to replace the Petitioner / Erstwhile Liquidator (Mr. V. Venkata Sivakumar), on specific grounds and the said `Application', was allowed on 01.07.2022, and the Petitioner in Review Application No. 3 / 2024 in Comp App (AT) (CH) (INS) No. 08 / 2022 (Erstwhile Liquidator) was removed and Mr. S. Hari Karthik (New Liquidator of the Company), was appointed by the `Adjudicating Authority' / `Tribunal', which was upheld by this `Tribunal', on 20.12.2022 in Comp App (AT) (CH) (INS) No. 269 / 2022 (on the file of this `Tribunal').
38. According to the Respondent Nos. 2 to 7, the instant Comp App (AT) (CH) (INS) No. 08 / 2022, was `Withdrawn', in the manner known to `Law', by the 1st Respondent / New Liquidator of the `Corporate Debtor', on 05.01.2024, Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 17 of 34 and further, that he is `quite competent' and `empowered', to take such a `decision'.
39. The Learned Counsel for Respondent Nos. 2 to 7 points out that the 1st Respondent / New Liquidator (being a `proper Party' and got substituted in place of the `Petitioner' / `Erstwhile Liquidator' - Mr. V. Venkata Sivakumar), has now become `Dominus Litis', can exercise in his `discretion' and `official capacity', as a `Liquidator' of the `Corporate Debtor', as to whether, he wants to prosecute the `Appeal' or not, which he has ultimately chosen not to.
40. According to the Learned Counsel for the Respondent Nos. 2 to 7, the Petitioner / Erstwhile Liquidator, is no longer the `Liquidator' of the `Corporate Debtor', and was removed as the `Liquidator', with effect from 01.07.2022, based on the `Order', passed by the `Adjudicating Authority' / `Tribunal', in IA No. 815 / 2020. The said Order was assailed by the Petitioner / Erstwhile Liquidator in Comp App (AT) (CH) (INS) No. 269 / 2022, which was `dismissed', whereby and whereunder, this `Appellate Tribunal', was pleased to `uphold' the `Order' of the `Adjudicating Authority' / `NCLT', Chennai Bench, and that the removal of the Petitioner (Mr. V. Venkata Sivakumar) was validated.
41. In this connection, the Learned Counsel for Respondent Nos. 2 to 7 submits that the Petitioner / Erstwhile Liquidator, cannot claim to be acting as Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 18 of 34 the `Liquidator' of the `Corporate Debtor', and assail `any acts', that he may or may not have taken during his time, when he was acting as the `Liquidator' of the `Corporate Debtor'.
42. According to Respondent Nos. 2 to 7, the Petitioner / Erstwhile Liquidator, cannot seek for a `Recall / Review' of the `Impugned Order', passed in Comp App (AT) (CH) (INS) No. 08 / 2022, in his `personal capacity' as the said `Appeal', was lodged by the `Liquidator' of the `Corporate Debtor', and not in his `personal name'. Resultantly, it was for the 1 st Respondent / New Liquidator, who has stepped in, to take a `Call', which he has done so and as such, the Petitioner / Erstwhile Liquidator (Mr. V. Venkata Sivakumar), cannot claim a `vested right', over the Comp App (AT) (CH) (INS) No. 08 / 2022.
43. The Learned Counsel for Respondent Nos. 2 to 7, points out that as per Section 35 of the I & B Code, 2016, it is only the `Liquidator', who has a `Power' and `Duty', to `institute' or `defend', any `Suit' or `Prosecution' or other `Legal Proceedings', in the name of `Corporate Debtor', without any `Iota of Doubt', the subject Comp App (AT) (CH) (INS) No. 08 / 2022, was preferred by the `Liquidator' of the `Corporate Debtor' and as per Section 35(1)(k) of the I & B Code, 2016, it is only the `Liquidator', who was the `Authority', to determine as to how he would want to prosecute the Litigation and when the 1 st Respondent / New Liquidator, having exercised his `Power', the same cannot be Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 19 of 34 called into question, especially, by the Petitioner / Erstwhile Liquidator (Mr. V. Venkata Sivakumar) which he is doing so in his personal capacity.
44. According to the Respondent Nos. 2 to 7, the Petitioner / Erstwhile Liquidator, was removed as `Liquidator' of the `Corporate Debtor' and in his place, the `1st Respondent / New Liquidator', was appointed. In fact, the `Appeal', under question, is in relation to the `Liquidation Process' of the `Corporate Debtor', of which, the `1st Respondent / New Liquidator', is in `Seisin of', and therefore, the `Petitioner / Erstwhile Liquidator', has `no Locus Standi', to be `heard'.
45. According to the Respondent Nos. 2 to 7, a `Power of Recall', is not the `Power of the Tribunal', to `Re-hear the case', to find out `any apparent error', in the Judgment', which is the scope of a `Review of a Judgment', which is what the `Petitioner' is endeavouring to do.
46. The Learned Counsel for the Respondent Nos. 2 to 7, contends that the Petitioner / erstwhile Liquidator, is neither a `Necessary' or `Proper Party', for this `Tribunal', to even consider his `plea'. Further, he cannot `Claim' as a `Vested Right', to `contest the case', in his `personal capacity', when the `Appeal', was filed by the `Liquidator', in `official capacity'. If at all, the Petitioner / Erstwhile Liquidator, is aggrieved by the `Order' of this `Tribunal', in Comp App (AT) (CH) (INS) No. 08 / 2022, on 05.01.2024, then, the `only Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 20 of 34 remedy', available for him is to prefer an `Appeal', before the `Hon'ble Supreme Court of India', as per Section 62 of the I & B Code, 2016.
47. The Learned Counsel for the Respondent Nos. 2 to 7 submits that the Petitioner has raised `Frivolous Grounds' of `Fraud', `Cheating', `Obstruction of Justice', etc., without there being any averment as to how, `these acts', have allegedly occurred. Any `alleged act', has to be specifically pleaded in `Law' and there needs to be evidenced to justify the same. In the instant case, other than making bald allegations, which are outrightly denied, as being baseless, the Petitioner / Erstwhile Liquidator, is seeking for this `Tribunal', to go on a `roving expedition', without any legal basis and justification. Also, it is incorrect on the part of the Petitioner / Erstwhile Liquidator to aver that the 1st Respondent / New Liquidator, has not filed a `Memo' for `withdrawal' of the `Comp App (AT) (CH) (INS) No. 08 / 2022'.
48. The Petitioner / Erstwhile Liquidator, instead of preferring an `Appeal', before the `Hon'ble Supreme Court of India', has with a `Mala fide Intention', has chosen to file the instant Review Application No. 3 / 2024, which deserves to be dismissed with `Exemplary Costs'.
Stance of 1st Respondent / New Liquidator:
49. Based on the Petition in CP (IB) No. 1307 / 2018, filed by the `Financial Creditor', under Section 7 of the I & B Code, 2016, the `CIRP', was initiated Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 21 of 34 against the `Corporate Debtor' / `The Jeypore Sugar Company Limited', in which, Mr. V. Venkata Sivakumar, was appointed as `Interim Resolution Professional' and later, in the `1st Committee of Creditors Meeting', that took place on 28.03.2019, the `Review Petitioner', was resolved to be appointed as `Resolution Professional'.
50. Subsequently, on 29.05.2020, the `Adjudicating Authority' / `Tribunal', had approved the `Liquidation Process', against the `Corporate Debtor' and the `Erstwhile Resolution Professional', was appointed as `Liquidator' of the `Corporate Debtor'.
51. It comes to be known that the Erstwhile Liquidator Mr. V. Venkata Sivakumar (Review Petitioner in Review Application No. 3 / 2024 in Comp App (AT) (CH) (INS) No. 08 / 2022), on specific grounds was replaced by the `Adjudicating Authority' / `Tribunal', through an `Order' dated 01.07.2022 and the 1st Respondent / new Liquidator Mr. S. Hari Karthik, was appointed in place of Mr. V. Venkata Sivakumar (Erstwhile Liquidator) and on 20.12.2022, this `Tribunal' in Comp App (AT) (CH) (INS) No. 269 / 2022, had upheld the same.
52. It is represented on behalf of the 1st Respondent / New Liquidator that the New Liquidator, had verified the `List of Litigations' pending for / against the `Corporate Debtor', before this `Appellate Forum' and other `Forums', to represent the `Corporate Debtor' and it came to light that many `Appeals', Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 22 of 34 including the captioned Comp App (AT) (CH) (INS) No. 08 / 2022, were pending for / against the `Corporate Debtor'.
53. To be noted, that the `Erstwhile Liquidator', had filed the captioned `Appeal', against the fresh Section 230 process, under the Companies Act, 2013, ordered by the `Adjudicating Authority' / `Tribunal', on 17.11.2021, in IA No. 255 / IB / 2021 in CP / 1307 (IB) / 2018. Also that, to represent the `Corporate Debtor', the 1st Respondent / New Liquidator - Mr. S. Hari Karthik, was appointed, in place of Erstwhile Liquidator (Mr. V. Venkata Sivakumar) and a necessary `Affidavit', vide Diary No. 2964 dated 11.11.2022, was filed, before this `Tribunal' and the 1st Respondent / New Liquidator, was entirely in favour of a `Fresh Revival Process', as per Section 230 of the Companies Act, 2013, read with Regulation 2B of IBBI (Liquidation Process) Regulations, 2016, in the interest of `all Stakeholders' and the `maximization of the Corporate Debtor'.
54. In view of the aforesaid backdrop, the 1st Respondent / New Liquidator, had made a submission, before this `Appellate Tribunal', on 05.01.2024, to withdraw the Comp App (AT) (CH) (INS) No. 08 / 2022, in the interest of `all Stakeholders' and `maximization of value of the Assets of the Corporate Debtor', and this `Tribunal', had permitted the `Appellant', in Comp App (AT) (CH) (INS) No. 08 / 2022, to withdraw the same and directed the `Appellant', to Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 23 of 34 file a `Memo' to that effect, and the said `Memo', was filed before this `Tribunal', on 08.01.2024 vide Diary No. 20 / 2024. Accordingly, the Comp App (AT) (CH) (INS) No. 08 / 2022 was `dismissed as withdrawn', without costs, on 05.01.2024 and further, this `Tribunal', had directed the `Appellant', on 05.01.2024, to file the `Memo', through efiling.
Power to Recall:
55. It is worthwhile for this `Tribunal', to cite the decision of the Hon'ble Supreme Court of India in Sri Budhia Swain & Ors. v. Gopinath Deb & Ors., reported in AIR 1999 SC at Page 2089, wherein, the `conditions for Recalling the Order', were laid down 1) The Proceedings suffer from inherent `lack of Jurisdiction' and such lack of Jurisdiction is patent, 2) There exists `Fraud' or `Collusion' in securing the Judgment and 3) There has been a mistake of `Court' prejudicing a `Party'.
56. As a matter of fact, if a `Judgment', was rendered in ignorance of fact that a `Necessary Party' was not served at all or had died and his `Estate', was not represented, then, in such a circumstance, there is a `Power', for a `Tribunal', to `Recall' its `Order'.
57. In the decision of Hon'ble Supreme Court in India Bank v. M/s. Satyam Fibres India Pvt. Ltd, 1996 (5 SCC) at Page 550, the Hon'ble Supreme Court of Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 24 of 34 India at Paragraph 23, had held that `the Courts have `Inherent Power to Recall and Set aside an Order' (I), obtained by `Fraud', practiced upon a `Court'.
58. Indeed, 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 a proper remedy, in some other proceedings, such as, by way of `Appeal', was available, but was not availed. Also that, the right to seek `Vacation of a Judgment', may be lost by, either `Waiver' or `Estoppel' or `Acquiescence'.
Review:
59. In fact, the `Power of Review' is not an `Inherent Power', but it is a creation of `Statute'. A `Review' of `Judgment', cannot be granted in the garb of `Clarification', as per decision of Hon'ble Supreme Court, reported in 2004, 5 SCC at P 618. A `Review Court', cannot sit in `Appeal', over its `own Order' and `rehearing of matter' is impermissible in `Law'.
60. A `Debatable' and `Legal' issues are not covered by the expression `Sufficient Reason' and as such, `no Review', would lie, as per decision AIR 2008 (NoC) 67, Gau). Also that, where, all the `Pleas', urged in `Review Petition', were `reiteration of grounds', urged during the `Hearing' of `Appeals', `Review Petitions', were held `not maintainable'.
Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 25 of 34
61. No `Party', can seek `Remedy of Review', on the ground that the decision is `erroneous on merits', as per decision in Santi Kumar Jain v. Anil Kumar Datta AIR 1996 Cal 4.
62. In reality, if a `Court of Law', decides a question erroneously, it is no ground for `Review', the `Party Aggrieved', shall have the `Power', to file an `Appeal', against such `Decree' or `Order', as per decision in G.S. Gupta v. Basheer Ahamed & Ors., AIR 1977 Kant 193.
63. Undoubtedly, the `Powers of Review', were available, can be compared, only to top most portion of Pyramid with very limited scope for interference, as per decision in 2008 (4) MLJ 1213, 1216 (Mad).
64. No wonder, the `Power of Review', is not inherent in `Tribunal'. `No Review', when `Statute', does not so provide. Also that, `Review', is not a `routine procedure', as per decision in Hon'ble Supreme Court in `Col. Avtar Singh Sekhon v. Union of India AIR 1980 SC at Page 2041'. Further, in the decision of Hon'ble Supreme Court in Union of India v. B. Valluvan, reported in AIR 2007 SC 210, wherein, it is observed and held that the Court's Jurisdiction, to `Review' its `own Judgment', as is well known is limited, but, it must be exercised with the framework of Section 114, read with Order 47 of C.P.C.
Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 26 of 34
65. Continuing further, since `Power of Review', is a `Right', created by a `Statute', it cannot be exercised by the `Tribunal', in the absence of `Statute', providing for it. As a matter of fact, the term `Recall', should not be expanded to be read as `Synonym', for `Review'.
Appraisal:
66. The Petitioner in Review Application No. 3 / 2024 in Comp. App (AT) (CH) (INS) No. 08 / 2022, has prayed for `Recalling of the Order', dated 05.01.2024, passed by this `Tribunal' in Comp. App (AT) (CH) (INS) No. 08 / 2022.
67. On behalf of the Respondent Nos. 2 to 7, a plea is taken in Review Application No. 3 / 2024, filed by the Petitioner / Erstwhile Liquidator (appearing in person) that the Petitioner is `no longer' the `Liquidator' of the `Corporate Debtor', and further that, he was removed as `Liquidator', with effect from 01.07.2022, as per `Order' in IA No. 815 / 2020, passed by the `Adjudicating Authority' / `NCLT', Chennai Bench. Moreover, when the said `Order' of the `Adjudicating Authority' / `Tribunal', came to be challenged by the `Review Petitioner' / `Erstwhile Liquidator' (Mr. V. Venkata Sivakumar) in Comp. App (AT) (CH) (INS) No. 269 / 2022, the same was dismissed on 20.12.2022, by this `Appellate Tribunal'.
Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 27 of 34
68. It is to be remembered that the `Review Petitioner / Erstwhile Liquidator' in his `personal capacity', cannot pray for a `Review / Recall' of the `Impugned Order', passed on 05.01.2024 in Comp. App (AT) (CH) (INS) No. 08 / 2022, because of the clear fact that the said Comp. App (AT) (CH) (INS) No. 08 / 2022, was filed by the `Liquidator' of the `Corporate Debtor' and not in his `personal capacity'. The fact of the matter is that when the 1st Respondent / New Liquidator has stepped into the shoes of the `Erstwhile Liquidator / Petitioner' (Mr. V. Venkata Sivakumar), then, the `Review Petitioner' (Mr. V. Venkata Sivakumar), legally has `No Vested Right', left with him, in respect of the instant Comp. App (AT) (CH) (INS) No. 08 / 2022, as opined by this `Tribunal'.
69. It must be borne in mind that the 1st Respondent / New Liquidator of the `Corporate Debtor', has the necessary `Authority', to determine as to how, he can pursue a `Litigation' and as `Liquidator' of the `Corporate Debtor', the 1st Respondent, has exercised his power to `withdraw' the Comp. App (AT) (CH) (INS) No. 08 / 2022 on 05.01.2024, and based on the `Memo' dated 08.01.2024, filed by the Learned Counsel appearing for the `1st Respondent / New Liquidator', the instant Comp. App (AT) (CH) (INS) No. 08 / 2022 was permitted to be `withdrawn' by this `Tribunal'. Also, it cannot be ignored that by `Operation of Law', the `1st Respondent / New Liquidator', came to be Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 28 of 34 appointed, in place of `Review Petitioner / Erstwhile Liquidator', and the `New Liquidator' is in favour of fresh `Revival Process', as per Section 230 of the Companies Act, 2013, read with Regulation 2B of IBBI (Liquidation Process) Regulations, 2016 and that the `1st Respondent / New Liquidator', believed there was no valid reason to continue the Comp. App (AT) (CH) (INS) No. 08 / 2022 (as made mention of by the 1st Respondent / New Liquidator) through his `Memo' dated 05.01.2024, but filed on 08.01.2024, before the `Office of the Registry', and only, after acceding to the request of `1st Respondent / New Liquidator', the instant Comp. App (AT) (CH) (INS) No. 08 / 2022, came to be withdrawn on 05.01.2024. The legal position of the `New Liquidator', will be of being the `Master of the Proceedings', thus, the `Principles of Dominus Litis' Qua him will `subsist', in the `eye of Law'.
70. At this juncture, this `Tribunal', aptly points out that the `Power to Recall of an `Order' or `Judgment' of a `Tribunal', can be exercised by it only, if any `procedural error', committed, in pronouncing the earlier `Order' or `Judgment'. In addition, the `Power to Recall an `Order' / Judgment, earlier passed by this `Tribunal', is not the `power' to `Re-hear' the case `De-novo', to find out any `Apparent error', in the `Order' / `Judgment', which is in the ambit of a `Review' of a `Judgment', to examine the `Judicial Propriety' or any `Apparent Error', committed, by the `Court' / `Tribunal', which is not the case made out in Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 29 of 34 the instant `Review Application', which is sought to be read as `Recall', by the `Petitioner / Erstwhile Liquidator'.
71. In Law, the 1st Respondent / New Liquidator in Review Application No. 3 / 2024, got substituted in the place of Mr. V. Venkata Sivakumar (erstwhile Liquidator) and the New Liquidator, being empowered as per Section 35 (1) (k) of the I & B Code, 2016, is competent to take a `final decision', as to whether to prosecute the Comp. App (AT) (CH) (INS) No. 08 / 2022, any further, and he was of the opinion and believed that there was `no valid reason', to continue the instant Comp. App (AT) (CH) (INS) No. 08 / 2022 and this `Tribunal', while acceding to the 1st Respondent / New Liquidator's request, seeking permission to withdraw the Comp. App (AT) (CH) (INS) No. 08 / 2022, had passed `Orders', in dismissing the Comp. App (AT) (CH) (INS) No. 08 / 2022 as withdrawn, on 05.01.2024.
72. It cannot be ignored that the 1st Respondent / New Liquidator, was appointed to represent the `Corporate Debtor', by `Operation of Law', replacing the `Review Petitioner' / `Erstwhile Liquidator' (Mr. V. Venkata Sivakumar) in Review Application No. 3 / 2024 in Comp. App (AT) (CH) (INS) No. 08 / 2022.
73. The 1st Respondent / New Liquidator of the `Corporate Debtor', in his `official capacity' and not on any `personal status / capacity', took a decision to Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 30 of 34 `withdraw', the instant Comp. App (AT) (CH) (INS) No. 08 / 2022 (filed by the Review Petitioner / Erstwhile Liquidator) earlier, against the fresh Section 230 of the Companies Act, 2013 process, ordered by the `Adjudicating Authority' / `NCLT', Division Bench - II, Chennai, on 17.11.2021 in IA No. 255 (IB) / 2021 in CP / 1307(IB) / 2018.
74. The present Review Petitioner (Erstwhile Liquidator of M/s. The Jeypore Sugar Company Limited / Corporate Debtor), has no `Vested Right', to file the Review Application No. 3 / 2024 in Comp. App (AT) (CH) (INS) No. 08 / 2022 and further, he cannot pray for `Recall of the Impugned Order', passed by this `Tribunal' in Comp. App (AT) (CH) (INS) No. 08 / 2022.
75. More importantly, the Review Petitioner (in person), cannot indulge in a `Fishing Expedition', in filing the Review Application No. 3 / 2024, without any foundation / justification or any legal basis. At the risk of repetition, the decision to withdraw the Comp. App (AT) (CH) (INS) No. 08 / 2022, was made by the 1st Respondent / New Liquidator in his `official capacity', and not in his personal status / capacity' and in `Law', he is empowered to take a `subjective decision', as to how, he can prosecute a `Litigation' or not to pursue any `Legal Proceedings', which was instituted by the earlier `Liquidator'.
76. To be noted, that when Comp. App (AT) (CH) (INS) No. 08 / 2022 was permitted to be withdrawn by this `Tribunal', on 05.01.2024, the connected IA Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 31 of 34 No. 621 / 2022 (For Impleadment), filed by the Erstwhile Liquidator / Review Petitioner (appearing in person), was Closed, by this `Tribunal'.
77. Considering the fact that the Review Petitioner, in Review Application No. 3 / 2024, is now not the `Liquidator' of the `Corporate Debtor', because, he was replaced by the `1st Respondent / New Liquidator', stepping into the shoes of the `Erstwhile Liquidator', the `Review Petitioner', in Review Application No. 3 / 2024, has `no Locus Standi', to file the Review Application No. 3 / 2024, and all the more, he has `No Vested Right', to agitate and contest the matter in his `personal capacity'. If at all, if the `Review Petitioner / Erstwhile Liquidator' (party in person), is `Aggrieved' by the `Order', passed by this `Tribunal' on 05.01.2024, in Review Application No. 3 / 2024, then, his `remedy', is to prefer an `Appeal', before the Hon'ble Supreme Court of India, as per Section 62 of the I & B Code, 2016.
78. In the light of the foregoings and keeping in mind of the well laid down `Proposition of Law' that `Power of Recall', is not the `Power of the Tribunal', to `Re-hear' the case, to find out any `apparent error', in an `Order' or `Judgment', as the case may be, this `Tribunal', comes to an irresistible and cocksure conclusion, that the instant Review Application No. 3 / 2024 in Comp. App (AT) (CH) (INS) No. 08 / 2022, filed by the `Review Petitioner', in his Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 32 of 34 personal capacity is `not perse Maintainable', especially, in the teeth of he being neither a `Necessary' or `Proper' Party, to the case.
79. Suffice it, for this `Tribunal', to point out that `Review Petitioner', upon his removal as `Liquidator' of the `Corporate Debtor', when the `1st Respondent / New Liquidator', was appointed by the `Adjudicating Authority' / `Tribunal', only the `New Liquidator / 1st Respondent', has stepped into the shoes of the `Erstwhile Liquidator / Review Petitioner' (appearing in person), who in `Law', as per Section 35 (1) (k) is the `Authority', to take a `subjective decision', as to how, he can pursue the Comp. App (AT) (CH) (INS) No. 08 / 2022, filed by the `Erstwhile Liquidator / Review Petitioner', any further, and when a subjective decision', was taken by the `1st Respondent / New Liquidator', to withdraw the Comp. App (AT) (CH) (INS) No. 08 / 2022 (on the file of this `Appellate Tribunal'), on 05.01.2024, then, the filing of the `Review Application', by the `Petitioner / Erstwhile Liquidator', is not `Ex-facie Maintainable', in his `personal capacity'. Looking at from any point of view, the `Review Application No. 3 / 2024', is devoid of merits and it fails. Result:
In fine, the `Review Application No. 3 / 2024' (filed by the `Review Petitioner / Erstwhile Liquidator - in person'), to `Recall the Order', dated Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 33 of 34 05.01.2024, in Comp. App (AT) (CH) (INS) No. 08 / 2022, is Dismissed. No costs.
[Justice M. Venugopal] Member (Judicial) [Justice Sharad Kumar Sharma] Member (Judicial) [Jatindranath Swain] Member (Technical) SR / TM 22 / 03 / 2024 Review Appln. 3/2024 in Comp. App (AT)(CH)(INS) No. 8/2022 Page 34 of 34