The NCLAT in JM Financial Asset Reconstruction Company Ltd. v. Samay Electronics Pvt. Ltd., the same Bench of the Adjudicating Authority, which passed two conflicting orders, to make a reference to Hon’ble President, NCLT, if not already made, in terms of Section 419 (5) of the Companies Act 2013, for hearing on the issues and points on which the two Members of the Bench had divergent view in the split verdict so that the matter is placed before a third Member for hearing and the Company Petition is decided in accordance with the opinion of the majority of members who heard the case including the member before whom it is placed.
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The NCLAT in Phoenix ARC Pvt. Ltd. v. Kotak Mahindra Prime Ltd., by majority decision refused to interfere in the matter of deduction of EMI by the Financial Creditor/Bank from the funds of the Corporate Debtor during the pendency of the moratorium, against the direction of Interim Resolution Professional. The Adjudicating Authority vide impugned order (dated 06th July 2020) allowed the submissions of the claim by Respondent No.1 after due adjustment of the sums received by them during the moratorium. During CIRP Resolution, if any preferential transaction is made, the Resolution Professional shall be at liberty to file an application under Section 43. No adverse inferences could be made from the initial transactions, since an agreement was signed as a result of loan sanction. The minority decision of the NCLAT bench (Member Technical) felt that prima facie a case exists as put forth by the appellant and directed for issuance of notice in the appeal. Appeals were dismissed in terms of the order rendered by majority of the Members comprising the Bench.
Deepakk Kumar v. Phoenix ARC Pvt. Ltd., NCLAT dismissed the Review Application, seeking to ‘Review’ the judgement dated 05.03.2020 for correction of an error ‘apparent on the face of record’ leading to an error also. The Applicant had filed Appeal against NCLT order admitting application filed before the Adjudicating Authority on 05.09.2018 under section 7 of the IBC on the ground that November 2012 is categorically written in ‘date of default’ column in Form No.1 and the same was dismissed by NCLAT on 05.03.2020. The NCLAT held that when there is no mistake apparent from the record in the judgment delivered by it. The power to ‘review’ is a creation of statute and ‘Review Jurisdiction’ cannot be pressed into service as an ‘Appellate Jurisdiction’. ‘Power of Review’ is not to be confused with an Appellate power. A ‘review’ cannot be claimed or asked for merely for a fresh hearing or arguments or the correction of an erroneous view taken earlier. any application for review filed by the concerned applicant cannot be construed to be one under Section 420(2) of the Companies Act or under Rule 11 of NCLAT Rules, 2016.
