1. I.A. No. 915 of 2021 in Company Appeal (AT) (Insolvency) No. 654 of 2020 has been filed by Applicant –‘M/s Vistra ITCL (India) Limited’ on 29.04.2021 under Rule 31 read with Rule 11 of the National Company Law Appellate Tribunal Rules, 2016 for seeking clarification to an observation in paragraph 24 of the Judgment dated 16.04.2021 passed by this Hon’ble Tribunal in Company Appeal (AT) (Insolvency) No. 654 of 2020 (Deccan Value Investors L.P. V/s Dinkar T. Venkatasubramanian & Ors.) being “lease has been entered into in accordance with law for renewing the existing lease hold rights.”

2. The plea taken in the I.A. No. 915 of 2021 and also during the course of argument Mr. Sudhir K. Makkar, Sr. Advocate appeared on behalf of the Applicant submitted that the said observation resulted in anomalous situation is contrary to the intent and ratio of the judgment and is seemingly incongruous to the directions and observations otherwise made in the judgment.

3. Learned Sr. Counsel for the Applicant submitted that the Applicant had filed I.A. No. 237 of 2020 in CP (IB) No. 42 of 2017 before the NCLT, Chandigarh Bench, Chandigarh which reads as under:

“a) Pass appropriate direction to ensure that the rights of the Applicant with respect to Secured Property under law shall not be affected in any manner by approval of the resolution plan by this Hon’ble Adjudicating Authority;

In the alternative, the Secured Property/the Mortgaged Property should be directed to be kept outside the CIRP of the Corporate Debtor as well as outside the confines of any resolution plan;

b) Direct the Respondent No. 1 to provide a copy of the part of the resolution plan which deals with and discusses the Mortgaged Property;

c) Direct that the lease rentals payable in respect of the security property be deposited in the account of the Security Trustee.

d) Pass such further and other directions as this Hon'ble Tribunal may deem fit and expedient."

4. The aforesaid Application was filed by the Applicant before the Ld. Adjudicating Authority in view of the fact that the Applicant, who holds a valid charge in the nature of a mortgage over the land admeasuring 21.11 acres, located at village Malpura, Industrial Area, Sector 9/10, Dharuhera, District Rewari, Haryana (Ace Complex Land/Subject Property), had already issued a notice under Section 13(2) of the SARFAESI Act to take possession of the Subject Property and alienation of the Subject Property after issuance of such notice would be in teeth of Section 13(13) of the SARFAESI Act. Consequently, approval of the resolution plan which factored in the creation of long term lease in favour of the Corporate Debtor, would have the effect of legitimizing an 21.01.2020 (SAREAESI Notice).

5. It was contended by the Applicant that the execution and registration of the Lease Deed dated 28.01.2020 (2020 Lease Deed) for a period of 20 years, being subsequent to issuance of the SARFAESI Notice was unlawful as being violative of Section 13(13) and the spirit of SARFAESI Act, 2002.

6. It was further contended by the Applicant that Section 65A of the Transfer of Property Act, 1882 (TPA) created an express bar and limited the right of the mortgagor to put the property on lease conditional upon Section 65A(2) of the TPA. Once an encumbrance was created on the Subject Property, any lease created after such encumbrance was not lawful and if a tenancy/lease under law came into existence after the creation of a mortgage, but prior to issuance of SARFAESI notice, it had to satisfy the conditions of Section 65-A of the TPA. The Applicant thus contended that the 2020 Lease Deed entered by the resolution professional for a period of 20 years despite existence of a valid mortgage, was contrary to the law.

7. It was further contended by the Applicant before the Ld. Adjudicating Authority that it was incumbent upon the resolution professional to ensure that the resolution plan does not contravene any of the provisions in law for the time being in force. In the present case, the Resolution Professional was not only aware of the contravention; he actively participated in such contravention. The creation of the 2020 Lease Deed on 28.01.2020 i.e. after the SARFAESI Notice was issued on 21.01.2020, was blatantly illegal as it was in clear contravention of Section 65A of TPA and Section 13(13) of SARFAESI. It was thus contended before the Ld. Adjudicating Authority that the resolution professional did not act in accordance of Section 30(2) of the Code.

8. It was further contended by the Applicant that the Ld. Adjudicating Authority by the Approval Order though dismissed I.A. No. 237/2020 filed by the Applicant, the contentions raised in the application were duly factored in and the rights of the Applicant qua the Ace Complex Land were suitably protected as the Ld. Adjudicating Authority expressly refrained from opining on the validity of the 2020 Lease Deed.

9. Learned Sr. Counsel for the Applicant further submitted that the application for impleadment being I.A. No. 2072/2020 (Impleadment Application) was filed in the instant Appeal.

10. It was further submitted that in the Impleadment Application filed by the Applicant categorically stated that the Applicant was not assailing the order impugned in the appeal and was only seeking a right to be heard as its legal rights would be directly and substantially affected by any variation / modification of the Approval Order or modification or alteration of the resolution plan, with respect to the Ace Complex Land, as the Ld. Adjudicating Authority had rightly refused to adjudicate upon the validity of the 2020 Lease Deed.

11. From the perusal of the order dated 19.03.2021 passed by this Tribunal shows that this Tribunal directed that it will here Mr. Sudhir K. Makkar, Sr. Advocate seeking impleadment of M/s Vistra ITCL (India) Limited and the matter was posted on 22.03.2021, on that day Mr. Sudhir K Makkar, Sr. Advocate on behalf of the Applicant was heard on I.A. No. 2072/2020, the matter was again listed on 23.03.2021, thereafter, again on 24.03.2021 on that day detailed argument was advanced by Mr. Sudhir K Makkar, Sr. Advocate and the judgment was reserved.

12. Learned Sr. Counsel for the Applicant further submitted that the judgment inter-alia holds that ‘since the present appeal lacks merit, Vistra cannot be permitted to introduce a case beyond the scope of examination of legality of the Resolution Plan….’.

13. Learned Sr. Counsel for the Applicant further submitted that the aforesaid observation, it is clear that this Hon'ble Tribunal while passing the Order has only examined the legality of the Resolution Plan and the order passed by the Adjudicating Authority and has not delved into the question of validity of the 2020 Lease Deed. Therefore, any observation which leads to arriving at a finding which is not harmonious to the operative part/ratio of any order cannot be sustained.

14. Learned Sr. Counsel for the Applicant further submitted that this Hon'ble Tribunal to arrive at a finding that the 2020 Lease Deed was allegedly created validly as the said question was not even the subject matter of the appeal filed by the Appellant nor was any such contention canvassed before this Hon'ble Tribunal during the course of arguments. The Ld. Adjudicating Authority has categorically refused to grant any of the reliefs as sought qua the Ace Complex Land and had exercised its enforcement right by issuing the SARFAESI Notice on 21.01.2020. Hence, creation of any tenancy rights by way of a lease pursuant to issuance of the SARFAESI Notice has to be examined in light of relevant laws before the Appropriate Forum, which question was rightly left open by the Ld. Adjudicating Authority.

15. It was further submitted that the Impugned Observation, besides being factually inaccurate, is ex facie unintended and completely out of line with the rest of the order and has the effect of contradicting the other parts of the order. The said observation is thus an error apparent on face of the record and requires to be corrected lest the order acquire the tone of incoherence on the issue of the long term lease executed by the Resolution Professional and Gateway on 28.01.2020. It is thus imperative in the interest of justice that the impugned order is suitably clarified and or modified to overcome the said erroneous observation and to rule out the possibility of any ambiguity arising out of the said observation.

16. It was further submitted that in light of the above submissions, the Applicant herein craves leave of this Hon'ble Tribunal to clarify that the Impugned Observation is incongruous to the intent of the Order and hence shall not be relied upon by any party.

17. It was further submitted that grave and irreparable prejudice would be caused and it would be failure of justice as the legal rights of the Applicant are vitally affected by the Impugned Observations.

18. Learned Sr. Counsel for the Applicant further submitted that this Hon’ble Tribunal may be pleased to pass the following orders read as under:

“a) Allow the present application by clarifying that the Impugned Observation i.e. ‘2020 lease has been entered into in accordance with law for renewing the existing lease hold rights.’ is contrary and incongruous to the intent of Order and hence is not be relied upon by the parties;

b) In the alternative this Hon’ble Tribunal may clarify that the said observations ‘2020 lease has been entered into in accordance with law for renewing the existing lease hold rights.’ shall not be read as the operative part of the order and the appeal having been dismissed, the order passed by the Adjudicating Authority has not been modified or varied in any manner.”

19. Learned Sr. Counsel for the Applicant further submitted that this Application bearing I.A. No. 915 of 2021 for clarification is under Rule 31 read with Rule 11 of the NCLAT Rules, 2016. The Rule 11 and Rule 31 of NCLAT Rules, 2016, read as under:

“11. Inherent powers - Noting in these rules shall be deemed to limit or otherwise affect the inherent powers of the Appellate Tribunal to make such orders or give such directions as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Appellate Tribunal.

31. Interlocutory applications- Every interlocutory application for stay, direction, condonation of delay, exemption from production of copy of order appealed against or extension of time prayed for in pending matters shall be in Form NCLAT-2 and the requirements prescribed in that behalf shall be complied with by the applicant, besides filing a affidavit supporting the application.”

20. Learned Counsel for the Respondent – ‘Resolution Professional’ during the course of argument and also in the written submissions relied on the judgment of Hon’ble Supreme Court in 2000 (7) SCC 297 (Delhi Administration V/s Gurdip Singh Uban and Others) and referred to paragraph 16 and 17 which are reads as under;

“16. At the outset, we have to refer to the practice of filing review applications in large numbers in undeserving cases without properly examining whether the cases strictly come within the narrow confines of Rule XL of the Supreme Court Rules. In several cases, it has become almost everyday experience that review applications are filed mechanically as a matter of routine and the grounds for review are a mere reproduction of the grounds of special leave and there is no indication as to which ground strictly fails within the narrow limits of the Rule XL of the Rules. We seriously deprecate this practice. If parties file review petitions indiscriminately, the time of the court is unnecessarily wasted, even if it be in chambers where the review petitions arc listed. Greater care, seriousness and restraint is needed in filing review applications.

17. We next come to applications described as applications for “clarification”, “modification” or “recall” of judgments or orders finally passed. We may point out that under she relevant rule XL of the Supreme Court Rules, 1966, a review application has first to go before the learned Judges in circulation and it will be for the Court to consider whether the application is to be rejected without giving an oral hearing or whether notice is to be issued

Order XL. R.3 states as follows :

"3. Unless otherwise ordered by the Court, an application for review shall be disposed of by circulation without any arguments, but the petitioner may supplement his petition by additional written arguments, The Court may either dismiss the petition or direct notice to the opposite party......"

In case notice is issued, the review petition will be listed for hearing, after notice is served. This procedure is meant to save the time of Court and to preclude frivolous review petitions being filed and heard in open Court. How-ever, with review a view to avoid this procedure of 'no hearing', we find that sometimes applications are filed for 'clarification', 'modification' or 'recall' etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in Chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straightway inasmuch as the attempt is obviously to by pass Order XL Rule 3 relating to circulation of the application in Chambers for consideration without oral hearing. By describing an application as one for 'clarification' or 'modification', - though it is really one of review - a party cannot be permitted to Circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open Court. What cannot be done directly cannot be permitted to be done indirectly. (See in this connection a detailed order of the then Registrar of this Court in Sone Lal v. State of U.P, deprecating a similar practice).”

21. It was further submitted that relying on the above Judgment of Hon'ble Supreme Court that this instant application which has been filed by the Applicant for clarification of the judgment, in reality this instant application seeks a review and wants rehearing of the Judgment passed by this Tribunal in this matter instead of clarification of the judgment and the IBC does not have any provisions to review/rehear any judgment and thus it is a frivolous application. Therefore, it is fit to be dismissed.

22. After hearing both the sides, we have taken note of the fact that there are no provisions in the IBC which permits us to review the judgment passed by this Tribunal. Further, the relevant paragraphs of the judgment passed by this Tribunal read as under:

"18. As regards impleadment sought by Vistra it is submitted that the Appeal arises out of proceedings under Section 31 of I&B Code to which Vistra was not even a party. It is submitted that Vistra had filed CA No.62 of 2020 and CA No.237 of 2020, which was disposed off in terms of the impugned order. Vistra has only challenged order passed in CA No.62 of 2020 and no challenge has been raised in regard to order passed in CA No.237 of 2020. Once Appeal has not been filed, Vistra cannot seek impleadment in the instant Appeal. Otherwise also, the impugned order, taking note of 2020 lease while approving the Resolution Plan, sufficiently safeguards and satisfies the concerns of Vistra.

19. Mr. Sudhir K. Makkar, Senior Advocate representing Vistra seeking impleadment as Party Respondent submitted that Vistra is not assailing the impugned order but seeking to enforce its right to be heard being a necessary as well as an effected party insofar as any modification of the impugned order with respect to the subject land which Vistra is holding as mortgagee may affect its legal rights. It is submitted that Vistra is not assailing the impugned order and there is no occasion for filing an independent Appeal by Vistra. However, since the outcome of the Appeal may affect the legal rights of Vistra, it is seeking impleadment in Appeal to safeguard its interest. It is submitted that COC is trying to indirectly agitate an issue which is already settled and since COC has not filed an Appeal challenging the impugned order, an apprehension is created in the mind of Vistra that in absence of Vistra as party Respondent actual facts including the rationale behind the passing of impugned order qua the Vistra’s secured asset, i.e. subject property would be placed before this Appellate Tribunal.

20. We have given our anxious consideration to the submissions, oral and written made by learned Counsel for the parties and those seeking impleadment and intervention. We have also gone through the record.

21. Appellant is the Successful Resolution Applicant whose Resolution Plan in respect of Corporate Debtor – ‘Amtek Auto Limited’ came to be approved by the Committee of Creditors by a majority of 70.07% votes in its meeting held on 7th February, 2020. The Resolution Professional filed IA No.225/2020 under Section 30(6) read with 31(1) of I&B Code for approval of Resolution Plan. Same was heard along with other IAs. Meanwhile, IA in Civil Appeal No.6707/2019 filed by the Appellant before Hon’ble Apex Court seeking withdrawal of its offer (Resolution Plan) came to be dismissed vide order dated 18th June, 2020. The Hon’ble Apex Court, while rejecting the prayer for withdrawal of the offer, warned the Appellant that if he indulged in such kind of practice, it will be treated as Contempt of Court in view of various orders passed at his instance. Apart from rejection of Appellant’s prayer for withdrawal of the Resolution Plan, the order passed by the Hon’ble Apex Court gives a loud and clear message that any further attempt made by the Appellant to enact a U-turn and try to wriggle out of the obligations under the offer would be treated as contumacious conduct inviting action for Contempt of Court. This appears to have been done to deter the Appellant from resiling from its offer. The order dismissing the Application is final and has to be construed as a bar precluding the Appellant from seeking exit from its own offer. It also emerges from the order that the Hon’ble Apex Court, while rejecting the withdrawal offer emanating from Appellant, took notice of the various orders passed by it at the instance of Appellant. The tone and tenor of this order leaves no scope for the Appellant to resile from and wriggle out of the implication of the offer made by him, i.e. the Resolution Plan, which has been approved in terms of the order impugned in this Appeal. It is therefore manifest that the Appellant would not be permitted to backtrack and seek exit from its Resolution Plan on any pretext whatsoever. This is a closed chapter and cannot be permitted to be reopened. The question for consideration, however, is whether the issue raised in this Appeal, in the context of prayer sought for setting aside of impugned order dated 9th July, 2020 (in terms whereof the Resolution Plan submitted by Appellant came to be approved), can be looked into when curtain has been drawn on the endeavours of Appellant to seek withdrawal of its offer by declining the same. For determining the issue raised viz. whether the lease could be extended without the prior written consent from mortgagee, it is inevitable to peep into the development during CIRP, which ultimately culminated in approval of Appellant’s Resolution Plan for the Corporate Debtor and rejection of various IAs.

22. CIRP against Corporate Debtor/AAL was initiated by Corporation Bank now known as Union Bank of India by filing Application under Section of I&B Code. AA admitted the Application on 24th July, 2017. Thus, CIRP qua CD/AAL was commenced. IRP was appointed and public announcement was made. COC was constituted on 17th August, 2017. IRP was confirmed as RP in the first meeting of COC. CIRP period was extended by 90 days. COC in its meeting held on 2nd April, 2018 approved Resolution Plan of LHG, which was placed by the RP for approval before AA, who allowed CA No.114/2018 approving the Resolution Plan submitted by RP. CP No.112/ 2018 also came to be disposed of while CA No.140 of 2018 filed by the Appellant herein came to be dismissed in terms of the same order. Subsequently, all Financial Creditors of CD filed CA No.567 of 2018 through Union Bank of India urging the AA to declare that the Resolution Applicant M/s LHG has knowingly contravened the terms and failed to implement the Resolution Plan. This came to be disposed off by holding that the Resolution Plan submitted by LHG was not capable of implementation due to default in adhering to the payment schedule. COC was restored for considering the plan of Appellant. Sometime was excluded from CIRP. CA No.601/2018 filed by LHG alleging vitiation of CIRP of the CD on account of fraud etc. came to be dismissed in terms of the same order. In Appeal, this Appellate Tribunal ordered for liquidation of CD. The order of this Appellate Tribunal dated 16th August, 2019 was assailed in Appeal before Hon’ble Apex Court by the COC. In Civil Appeal No.6707/2019, the Hon’ble Apex Court initially stayed the liquidation proceedings, thereafter permitted RP to invite fresh offers from prospective Resolution Applicants. COC was directed to take a final call thereafter. Subsequently, the Hon’ble Apex Court extended time by three weeks to enable COC to take decision. It further ordered that consideration be confined to five offers received within time. Subsequently, earlier order was recalled and RP was directed to invite fresh offers within thirty days of advertisement. COC was directed to evaluate the Plans within three weeks thereafter. COC after evaluation of Plans submitted by four prospective Resolution Applicants declared Appellant as H1 bidder. The Hon’ble Apex Court extended time by two weeks for concluding the voting on Resolution Plan of Appellant. The Resolution Plan with its addendum was placed before COC which was approved by it within the further extended time by 70.07% votes. Vide order dated 8th June, 2020, the Hon’ble Apex Court, keeping in view this development, relegated the matter of IA No.48906/2020 in Civil Appeal No.6707/2019 to AA for consideration and appropriate orders within fifteen days. It emerges from the impugned order that this IA, filed by COC, sought approval of Resolution Plan on account of special process having been undertaken under the inherent powers of Hon’ble Apex Court and since the issuance of LOI and the underlying purpose thereto in terms of RFRP became nugatory, such process was not required to be followed prior to filing of Application for approval of Resolution Plan. Thereafter, Application being IA No.225/2020 came to be filed by the Resolution Professional for approval of Resolution Plan of Appellant, which was allowed in terms of the impugned order.

23. Appellant assails the impugned order primarily on the ground that declaration of critical parts of the Resolution Plan affecting its feasibility and viability as being infructuous or redundant was beyond the scope of jurisdiction of the AA. The ground of challenge is that the Resolution Plan is contingent on the execution of a long term lease for the Ace Complex Land on acceptable terms defined in the Resolution Plan, i.e. with the prior written consent of Vistra, the mortgagee of Ace Complex Land. Prior lease of CD in respect of Ace Complex Land is said to have expired on 31st March, 2019. The submission on behalf of Appellant is that for maintaining going concern status of Corporate Debtor unhindered access of CD to this land is crucial. Thus, this condition stated to be condition precedent of the execution of lease on acceptable terms is said to be vital and included in the Resolution Plan but RP executed the said lease on 28th January, 2020 without obtaining prior written consent of Vistra. Thus, the approval of the Resolution Plan is said to be without complying with the requirement of obtaining prior written consent of Vistra in respect of execution of the lease of Ace Complex Land and without obtaining approval of CCI. It is contended on behalf of Appellant that the AA failed to satisfy itself whether the Resolution Plan was compliant as regards vital conditions and whether it had provisions for its effective implementation.

24. This is seriously contested by the Respondents, it being pointed out that the COC and the Appellant had mutually agreed for inclusion of execution of long term lease of 20 years with respect to the Ace Complex Land on Acceptable Terms as a condition precedent to the implementation of the approved Resolution Plan only after taking into account the criticality of the piece of land measuring 21.11 acres located at Dharuhera, Haryana (Ace Complex Land) owned by Gateway. However, it is submitted that this condition was not a condition precedent to the approval and acceptance of the Resolution Plan. Sub-clause 2.5.2 of the approved Resolution Plan replaced by the addendum (page 550,551 of Vol. 3 of Appeal paper-book) brings it to fore that the Resolution Plan envisaged acquisition of the CD by the Appellant as a going concern and contingent on conditions including execution of a long term lease (subsisting for 20 years or more) for the Ace Complex Land with Acceptable Terms. At page 547 of the same Volume, we find Clause 2 substituting sub-section 1.8(iii), 1.6(vi) and insertion of 1.9 on the commercial proposal of Appellant for running the Corporate Debtor as going concern, wherein provision has been made to include purchase of Ace Complex Land. It is provided that the Appellant proposes to negotiate with Vistra for purchase of Ace Complex Land through its subsidiaries etc. The Appellant undertook to infuse purchase funds for purchase of Ace Complex Land at its discretion. Upon its purchase, Appellant would retain the right to not require the sale of the vacant area by the Corporate Debtor for six months from the date of purchase of Ace Complex Land. It would therefore emerge that the said condition of including execution of long term lease of 20 years with respect to Ace Complex Land on Acceptable Terms was a condition precedent to the implementation of the approved Resolution Plan and not to the approval of the Resolution Plan. Therefore, the impugned order approving the Resolution Plan cannot be assailed on such ground. Implementation of the approved Resolution Plan is only subsequent to the approval of Resolution Plan at the hands of AA and cannot operate as a condition precedent before its approval. The necessary steps for implementation including execution of long term lease with respect to the Ace Complex Land on Acceptable Terms are postulated to be taken only after approval of the Resolution Plan and not before its approval. Moreover, execution of long term lease of 20 years qua the Ace Complex Land would be dependent upon subsistence of the lease Agreement by way of prior written consent of Vistra, no right of termination accruing to the lessor as long as lease rentals are paid and right of first refusal accruing to the Resolution Applicant in case of sale of Ace Complex Land. This is covered under the definition of Acceptable Terms at page 487 of Vol. 3 of Appeal. Appellant is required to take appropriate steps towards negotiating with Vistra/ creditor for obtaining their no objection in terms of the impugned order. The Appellant can demonstrate that the 2020 lease has not been extinguished and all rights enjoyed by Vistra/ creditors are intact as against its borrowers as well as Gateway. The 2020 lease ensures continuance of revenue for Gateway to service the debt of creditors and there is no compromise on the lease rentals stipulated to be paid in terms thereof and that the 2020 lease must be continued as the piece of land is otherwise of no use. 2020 lease has been entered into in accordance with law for renewing the existing lease hold rights. It ensures a long time lease for the constructed area of Ace Complex Land from where the Corporate Debtor is operating its manufacturing activities. In so far as the remaining land is concerned, the agreement provides for lease of the said land on mutually agreeable terms. Appellant is shown to have contemplated a situation for the buyout of the Ace Complex Land in terms of the Resolution Plan for ensuring continued availability of land for operations of the Corporate Debtor. Thus, there was no impediment in implementing the Resolution Plan and assailing of the approved Resolution Plan by Appellant who itself is the Successful Resolution Applicant is unwarranted. LOI may have been stipulated to ensure that the Resolution Applicant is rendered accountable. Requirement of submission of PBG is in consonance with Regulation 36B of the CIR Regulations. The submission of PBG was a condition prefaced upon approval of the CoC and passing of directions by Hon’ble Apex Court. It is significant that the Appellant had undertaken to place PBG of Rs.300 Crore in the Resolution Plan itself. Thus, it was bound to comply with the requirement and not hide behind the issue raised in respect of LOI to not adhere to the requirement of submission of PBG. After approval of Resolution Plan by the CoC, the Hon’ble Apex Court vide order dated 8th June, 2020 relegated the matter to NCLT for approval of Resolution Plan. The Appellant was a party to the proceedings before the Hon’ble Apex Court and question of intimating it by way of issuance of LOI became irrelevant. Appellant cannot be heard to backtrack from its Resolution Plan on account of non-grant of prayers under Section 9 of the Resolution Plan which cannot be construed as conditionalities to the implementation of the approved Resolution Plan.

25. Appellant, as the Successful Resolution Applicant, would suffer invoking of PBG of Rs.150 Crores for breach of any of the conditions of Resolution Plan as provided under Clause 8.18 of the Resolution Plan (Page 480 of appeal paper book). The Respondents have been able to demonstrate that the Appellant has breached the Resolution Plan by not submitting PBG in respect of balance amount of Rs.150 Crores prior to submission of Resolution Plan before the Adjudicating Authority. It has also not initiated process of submission of application for seeking approval of CCI. It has also failed to nominate its representative to the Interim Monitoring Committee and abstained from meetings of the IMC. The Resolution Plan is binding on all stakeholders including the Appellant -Resolution Applicant, who is bound to take necessary steps for implementation of all provisions of the Resolution Plan but has failed to do so. Thereby contravening terms of the Resolution Plan and providing justification for CoC to invoke PBG. The Guarantor Bank is bound to honour the written demand placed on it by the CoC for breach of any condition which does not brook any interference. Thus viewed, the CoC has rightly invoked the PBG which is beyond the pale of challenge.

26. Vistra was not a party to proceedings arising out of application filed by the Resolution Professional for approval of Appellant’s Resolution Plan. Admittedly, Vistra has not filed an appeal against the impugned order. It had filed CA No. 62 of 2020 and CA No. 237 of 2020 before the AA which came to be disposed off in terms of the impugned order. Admittedly, no appeal has been filed in respect of order passed in CA No. 237 of 2020. In the given circumstances, it cannot be permitted to seek impleadment as a necessary party in these appeal proceedings. Vistra is a mortgagee with Ace Complex Land mortgaged in its favour by Gateway. The Adjudicating Authority has taken note of the 2020 lease and approved the Resolution Plan submitted by Appellant which protects the legitimate interests of Vistra. Since the present appeal lacks merit, Vistra cannot be permitted to introduce a case beyond the scope of examination of legality of the Resolution Plan of Appellant under the garb of seeking impleadment. Same is true in respect of intervention sought by Kotak Mahindra Bank.

27. For the foregoing discussion, we are of the considered view that the execution of long term lease for the Ace Complex Land with Acceptable Terms was not a condition precedent in regard to approval of Resolution Plan but only in regard to effective date. The impugned order does not travel beyond the scope of enquiry under Section 31 of I&B Code. The condition in regard to execution of a long term lease for the Ace Complex Land having already been complied with by RP who executed the lease on 28th January, 2020, when the prior lease has expired on 31st March, 2019 and Vistra not having assailed the impugned order for any material irregularity in the insolvency resolution process resulting in prejudice, the Appellant would not be justified in assailing the impugned order which, in effect, is nothing but yet another effort to wriggle out of its obligations and seek withdrawal of Resolution Plan in a different garb. The appeal not only lacks merit but also is frivolous. We, while dismissing the appeal, impose costs to the tune of Rs.1/- Lakh (Rupees One Lakh Only) on the Appellant which shall be deposited in this Appellate Tribunal within 15 days.”

23. So far filing the Application under Rule 11 of the NCLAT Rules, 2016 is concerned, this Appellate Tribunal in the case of “Action Barter Private Limited V/s SREI Equipment Finance Limited & Anr.” I.A. Nos. 811/2020, 917/2020, 962/2020 & 1587/2020 in Company Appeal (AT) (Insolvency) No. 1434 of 2019 dated 21st September, 2020 held as under:

“ 6. For better understanding of the controversy raised as regards some errors/mistakes having crept in the aforesaid judgment, it would be appropriate to refer to the factual matrix as emerging from record. 'SREI Finance Equipment Ltd.' filed application under Section 7 of the I & B Code seeking initiation of Corporate Insolvency Resolution Process against Corporate Debtor - 'Shree Ram Urban Infrastructure Ltd.'. The application was admitted by the Adjudicating Authority. Appellant - 'Action Barter Pvt. Ltd.', happens to be shareholder of the Corporate Debtor, assailed the order of admission primarily on the ground the winding up petition against the Corporate Debtor had already been admitted by Bombay High Court on 5th October, 2016 and the Official Liquidator has been appointed as Provisional Liquidator w.e.f. 15th November, 2017. According to Appellant, the Provisional Liquidator had taken over the assets and properties of the Corporate Debtor on 17th April, 2018 and also carried out boundary determination on 1st May, 2018. The Appellant further submitted that application under Section 7 filed by 'India Bulls Housing Finance Ltd.' against the Corporate Debtor had already been rejected by the Adjudicating Authority on 18th May, 2018 and the order of rejection had been challenged in appeal before Hon'ble Apex Court. It was submitted before this Appellate Tribunal that applications under Section 7 & 9 could not be filed and entertained after admission of the winding up petition. This Appellate Tribunal while noticing that similar issue had fallen for consideration before Hon'ble Apex Court in 'Forech India Ltd. Vs. Edelweiss Asset Reconstruction Company Ltd.' reported in 2019 SCC Online SC 87 found that the case of Appellant was covered by the decision of Hon'ble Apex Court in 'Forech India Ltd.'. After referring to paras 21 to 24 of the judgment in 'Forech India Ltd.', this Appellate Tribunal held that the application under Section 7 of the I & B Code filed by the Respondent - 'SREI Equipment Finance Ltd.' was not maintainable. This observation regarding the application of 'SREI Equipment Finance Ltd.' being not- maintainable has raised a storm as the same is interpreted as being an observation having direct nexus with the observations of Hon'ble Apex Court in 'Forech India Ltd.' judgment. Though, efforts were made on the part of one of the applicants to expand the scope of application under Rule 11 of the NCLAT Rules, we have no doubt in mind that the Rule 11 is of a limited scope and does not admit of reviewing the findings on merit or revising the judgment. Rule 11 of the NCLAT Rules is reproduced hereunder:-

"11. Inherent powers. -Noting in these rules shall be deemed to limit or otherwise affect the inherent powers of the Appellate Tribunal to make such orders or give such directions as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Appellate Tribunal "

Rule 11 is merely declaratory in the sense that this Tribunal is armed with inherent powers to pass orders or give directions necessary for advancing the cause of justice or prevent abuse of the Appellate Tribunal's process. Even in absence of Rule 11 this Appellate Tribunal, being essentially a judicial forum determining and deciding rights of parties concerned and granting appropriate relief, has no limitations in exercise of its powers to meet ends of justice or prevent abuse of its process. Such Powers being inherent in the constitution of the Appellate Tribunal, Rule 11 can merely be said to be declaring the same to avoid ambiguity and confusion. Having said that, we are of the firm view that the Rule cannot be invoked to revisit the findings retuned as regards the assertion of facts and pleas raised in the appeal and it is not open to reexamine the findings on questions of fact, how-so-ever erroneous they may be. The mistake/error must be apparent on the face of the record and must have occurred due to oversight, inadvertence or human error. Of course it would be open to correct the conclusion if the same is not compatible with the finding recorded on the issues raised. We accordingly decline to entertain any plea in regard to the merits of the matter involved at the bottom of the appeal and confine ourselves to the interpretation of the findings recorded and the conclusions derived therefrom as regards fate of the application under Section 7 of I & B Code filed by the Financial Creditor and the disposal of appeal.”

24. Viewed thus, the instant I.A. No. 915 of 2021 filed on behalf of the Applicant has tried to persue this Tribunal to revisit the finding observed in the judgment in question which is not permissible in NCLAT Rules, 2016 and the Rule 11 under which this Application has been filed is not applicable, therefore, the Application for clarification is not maintainable.

25. Any Application under Rule 11 is to be filed in scheduled Form-2 of the NCLAT Rules, 2016 which categorically shows that this Rule only deals with the I.A. in the pending matter(s). The Form of NCLAT-2 under Rule 31 is hereunder:

FORM NCLAT-2

[See Rule 31]

INTERLOCUTORY APPLICATION

IN THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL

IA NO. ______OF 20

In

In Appeal Petition No. ________of 20 .

CAUSE TITLE

Set out the Appeal No. _________________of 20

Appeal Petition short cause title

Set out the 1. Appeal No.____________20

Cause Title – Interlocutory Application

Petition for stay/direction/dispense with/condone delay/calling records

The applicant above named state/s as follows :

1. Set out the relief (s)

2. Brief facts

3. Basis on which interim orders prayed for

4. Balance of convenience, if any :

(All interlocutory applications shall be supported by an affidavit sworn by the Applicant/on its behalf and attested by a Notary Public).

DECLARATION

The applicant above named hereby solemnly declare that nothing material has been concealed or suppressed and further declare that the enclosures and typed set of material papers relied upon and filed herewith are true copies of the originals or fair reproduction of the originals or true translation thereof. Verified at_________dated at _______this day __________of _______20 .

Counsel for Applicant

Applicant

VERIFICATION I __________________(Name of the applicant) S/o.W/o.D/o. (indicate any one, as the case may be ) ___________age ____________working as __________ in the office of _______________resident of _______________ do hereby verify that the contents of the paras _____________to ___________are true to my personal knowledge / derived from official record ) and para _________ to _______are believed to be true on legal advice and that I have not suppressed any material facts.

Date :

Place :

Signature of the Appellant/Petitioner or authorised officer

26. Similarly, the provisions of Rule 31 of NCLAT Rules, 2016 is also not applicable in the facts of the instant Application because the judgment has already been delivered and the matter has been disposed off.

27. We found that the averments as have been made in the clarification Application and oral submissions made during the course of arguments by Learned Sr. Counsel for the Applicant and dealing with the judgment passed by us and reading the same as a whole and the observations made there in that context and the judgment passed by the Hon’ble Supreme Court in 2000 (7) SCC 297 (Delhi Administration V/s Gurdip Singh Uban and Others), we are of the view that the clarification Application which has been filed is just not for clarification/modification/recall of the Judgment passed by us but for review of the Judgment resulting reopening/rehearing the issue and such practice may not be done for want of provisions to review in IBC.

28. Hence, in view of the discussions above, we are of the considered view that averments made in the clarification application do not have any merit and we do not find any error in the observations made in the judgment passed by us and we do not think that it affects the legal rights of the Applicant.

Accordingly, I.A. No. 915 of 2021 is dismissed. No order as to costs.