The Tribunal has inherent power to recall orders obtained by fraud; however, review is limited to manifest errors, not for re-evaluation of merits, affirming that misuse of review process is impermissible.

ORDER

Per Coram

1. The present Review Application has been filed under Section 420 (2) of the Companies Act, 2013 , in respect of the Order dated 18.04.2022 (“Impugned Order”) passed by this Tribunal in CP/39/KOB/2020 seeking the following reliefs: -

a. To Recall and Review the impugned order dated 18.04.2022 passed by the Hon'ble NCLT, Kochi Bench in CP/39/KOB/2020;

b. To review and modify the Order dated 18.04.2022 in CP/39/KOB/2020 and to direct recovery of all illegal and unauthorized withdrawals made by Respondent No.2 from the Company;

c. To grant such other relief as this Hon'ble Tribunal may deem fit in the facts and circumstances of the case.

INTERIM RELIEF

This Hon'ble Tribunal be pleased to stay the operation of the impugned order dated 18.04.2022 passed by the Hon'ble NCLT, Kochi Bench in CP /39/KOB/20.

The brief facts of the case are as follows:

2. The main petition (CP/39/KOB/2020) has been filed by the Petitioner against the Respondents, alleging acts of oppression and mismanagement.

3. The Company was incorporated by the Petitioner and Respondent No. 2 with an authorized capital of Rs. 10 lakhs, divided into 1000 equity shares held equally by both parties. During the course of business, the Petitioner became dissatisfied with the conduct of the other shareholders and, therefore, invoked the jurisdiction of the NCLT by filing the aforementioned petition. Subsequently, a winding-up order was passed at the instance of the Petitioner, appointing Mr. Sreenivasan P R as the Provisional Liquidator.

4. Aggrieved by the order dated 18.04.2022, a review application has been filed, with the Petitioner taking the following grounds:

a. That the impugned order passed by Hon'ble NCLT Kochi Bench suffers from error apparent on the face of the record and is made with material suppression of facts at the hands of the 2nd Respondent.

b. This Hon'ble Tribunal failed to take note of the fact that an order of winding up is not an equitable remedy when serious of Fraud and financial misappropriation is alleged by the Petitioners. Notwithstanding the same, an order obtained by way of fraud on a court, tribunal or authority is a nullity and non-est in the eye of law as held by the Hon'ble Apex Court in Ram Kumar v State of Uttar Pradesh (C.A. 4258 of 2022 dated 28.09.2022) and A V Papayya Sastry and Ors v Government of AP and Ors (AIR 2007 SC 1546).

c. It is submitted that the basis of securing an order without disclosure of the relevant material and documents to obtain an undue advantage would amount to fraud. In such circumstances, the entire judgement or decree obtained by fraud would be treated as a nullity and in these circumstances, especially since the appointment of the 1st Respondent liquidator, it is evident at the face of it that the 2nd Respondent has not only suppressed material facts but mislead this Hon'ble Tribunal to avoid any investigation against himself and to subvert the attention of this Hon'ble Tribunal from material facts and circumstances.

d. Furthermore, it has been held conclusively by the Hon'ble Apex Court that the power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge at the time the order was made. If the said power of review is not exercised and the order is permitted to stand will lead to failure of justice. In the present instance fraud is forwarded by the 2nd Respondent by material suppression of facts. It is trite that frauds et jus nunquam cohabitant (fraud and justice never dwell together) and frauds et dolus nemini patrocinari debent (fraud and deceit ought to benefit none).

e. It is only after filing of proceedings and completion of pleadings it was notes that the 2nd Respondent is illegally attempting to transfer benefits arising out of the SEIS Scheme to his own entity, 'Geovat