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2024 Supreme(Online)(NCLT) 482
NATIONAL COMPANY LAW TRIBUNAL
Small Industries Development Bank of India VS
IA(I.B.C) - 367/2024
For the Petitioner:Shavez Mukri
The main legal point established is that an application seeking to recall an order under Rule 11 of the NCLT Rules, 2016 must be maintainable and supported by valid contentions.
Headnote:
Recall of Order - NCLT Rule 11 - The court dismissed the application seeking to recall an order under Rule 11 of the NCLT Rules, 2016, stating that the application was not maintainable and the contentions of the Applicant were misplaced and sans merit.
Fact of the Case:
The Applicant filed an application under Section 95 of the Insolvency and Bankruptcy Code, 2016 against the Respondent, seeking to initiate Personal Corporate Insolvency Resolution Process of the Personal Guarantor. The application was dismissed as defective due to alleged incorrect filing of Form C.
Finding of the Court:
The court found that the application seeking to recall the order was not maintainable and the contentions of the Applicant were misplaced and sans merit.
Issues: The main issue was whether the application seeking to recall the order under Rule 11 of the NCLT Rules, 2016 was maintainable.
Ratio Decidendi: The court held that the application was not maintainable as the clarification from IBBI, quoted by the Applicant, was not brought to the notice of the Tribunal at the time of making submissions, and the application was filed one day prior to the issuance date of the Circular.
Final Decision: The court dismissed the IA/367(AHM)2024 in CP(IB) No. 158 of 2023, stating that the application seeking to recall the order was not maintainable.
ORDER
IA/367(AHM)2024
1. This is an IA filed by the Applicant under Rule 11 of the NCLT, Rules, 2016 seeking the following prayers:-
- IN THE NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD DIVISION BENCH COURT – I IA/367(AHM)2024 In C.P.(IB)/158(AHM)2023 Proceedings U/R 11 of NCLT, Rules, 2016 IN THE MATTER OF: Small Industries Development Bank of India Having its head office at: SIDBI Tower, 15, Ashok Marg, Lucknow -226001 And An Asset Recovery Unit at: Navjeevan Amrit Jayanti Bhavan, 1st Floor, Behind Gujarat Vidhyapith, Navjeevan P.O., Off. Ashram Road, Ahmedabad – 380014.
- (Through Resolution Professional Pooja Damir Miglani) VERSUS Jitendrakumar Ghusabhai Hirpara ........Applicant Gauri Villa, 5, Ananta Society, Kalawad Road, Rajkot, Gujarat-360005 ........Respondent Order delivered on 14.03.2024 Coram: Mr. Shammi Khan, Hon’ble Member(J) Mr. Sameer Kakar, Hon,ble Member(T) Appearance: (a) That this Hon'ble Tribunal be pleased to recall impugned Order dt.
22.12.2023 and be pleased to set-aside the impugned Order; (b) That this Hon'ble Tribunal be pleased restore the above captioned Company Petition and list the same for hearing;
- (c) That this Hon'ble Tribunal be pleased to pass such order as this Hon'ble Tribunal deems fit and proper in the interest of justice, equity, and good conscience.
2. It is stated that the Applicant has filed application bearing CP(IB) No. 158 of 2023 under Section 95 of the Insolvency and Bankruptcy Code, 2016 (“Code”) against the Respondent/ Mr. Jitendrakumar Ghusabhai Hirpara being the Personal Guarantor of the Corporate Debtor seeking to initiate Personal Corporate Insolvency Resolution Process of the Personal Guarantor.
3. It is stated that thereafter, the matter was taken up for hearing on 22.12.2023 and the same was dismissed as being defective as allegedly the Form C was not correctly filed by the Applicant. The operative portion of the order dated 22.12.2023 is reproduced below:-
- “„…Form B is signed by the Small Industries Development Bank of India (Financial Creditor), the affidavit is affirmed by Small Industries Development Bank of India.
- However, it is seen that the Applicant has filled Part IV of the application and the proposed IRP has also signed the Application.
- Part IV needs to be filled only when application is filed through the proposed IRP.
- As such in our view Form-C has not been correctly filled by the Applicant. Accordingly, CP/IB/158/AHMZ2023 is dismissed as being defective with liberty to file fresh”.
4. It is stated that the Insolvency and Bankruptcy Board of India (“IBBI”) has issued a circular No. IBBI/II/62/2023 dated 21.12.2023 providing detailed clarification regarding submissions of particulars and declaration by the insolvency professional in the application filed by the creditors in Part IV of Form C of the IRP PGCD Rules.
5. That upon perusing the said Circular, it is clear that Company Petition filed by the Applicant is not defective and was complete.
That this Hon'ble Tribunal while delivering the impugned order /judgment could not consider the above circular and as such dismissed the above captioned Petition as defective.
6. It is stated that Rule 11 of the NCLT Rules, 2016 empowers this Tribunal to pass any orders to meet the ends of justice and the same also includes the power to pass an order recalling its own order/judgment. The said rules are reproduced below:-
- Rule 11 of NCLT Rules, 2016 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”.
7. Thereafter, the Applicant has submitted a judgment of the 5- Judge Bench of the Hon’ble NCLAT in Union of India v. Dinkar T. Venkatasubramanium, 2023 SCC OnLine NCLAT 283 wherein the Hon’ble NCLAT held that the power to recall a judgment is an inherent power which is in
