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Mack Star Marketing ... v. Ashish Chawchharia R...

National Company Law Appellate Tribunal

May 30, 2022

Judgment

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Summary of Judgment: I.A. No. 1467 of 2022 in Company Appeal (AT) (Insolvency) No. 389 of 2021

Factual and Procedural Background

The application under consideration (I.A. No. 1467 of 2022) was filed by Mack Star Marketing Pvt. Ltd. (Appellant/Applicant) seeking correction and clarification of this Tribunal's judgment dated 06.05.2022 in Company Appeal (AT) (Insolvency) No. 389 of 2021. The underlying appeal had challenged the Adjudicating Authority's order dated 18.03.2021 (NCLT Mumbai Court No. I) arising from I.A. No. 453/MB/2020 in which the Appellant sought declaration that monthly fees payable under a Service Agreement for the relevant period be treated as part of CIRP costs and directions to the Liquidator to treat such claims as IRP/CIRP costs. The Adjudicating Authority held the Applicant was not entitled to payment of license fee after 31.05.2019. This Tribunal, after hearing parties, delivered judgment on 06.05.2022 (final disposal reported in the record) which, among other things, set aside the impugned NCLT order but held that no monthly fees would be payable to the Appellant during the CIRP period. The present application seeks correction/clarification of that judgment in light of clauses (g) and (h) of the Resolution Plan approved by the Adjudicating Authority on 22.06.2021.

Legal Issues Presented

Whether this Tribunal should correct or clarify its judgment dated 06.05.2022 under Rule 11 of the NCLAT Rules, 2016 to reflect that the approved Resolution Plan (clauses (g) and (h)) contemplates payment of CIRP costs beyond the estimates (up to Rs. 475 Crores) and therefore the Tribunal's directions should be rectified accordingly.
Whether the application filed is impermissibly seeking review of the Tribunal's final judgment (i.e., whether the relief sought is a review in disguise) or is properly a request for correction/clarification under the Tribunal's inherent powers / Rule 11.

Arguments of the Parties

Appellant's Arguments

The Tribunal's judgment dated 06.05.2022 recorded that the Appellant was entitled to a determination that monthly fees under the Service Agreement should have been treated as part of CIRP costs.
During hearing, counsel for the respondent had stated that the Resolution Plan did not contemplate payment of CIRP costs to the Appellant; on that basis the Tribunal declined to direct payment. However, the Resolution Plan actually contained clauses (g) and (h) which provided that (g) excess CIRP costs over estimates would be borne by the Successful Resolution Applicant (SRA) up to Rs. 475 Crores and (h) payment of CIRP costs in full shall have precedence over payment to any other creditors in terms of section 30(2)(a) of the Code.
Because those clauses were not brought before the Tribunal at the time of hearing, the judgment's ultimate direction was inconsistent with the Tribunal's finding that the Appellant was entitled to have monthly fees treated as CIRP costs; the Appellant seeks correction/clarification to align the outcome with the Tribunal's finding and to obtain consequential directions for payment as per the Resolution Plan.
The Appellant requested that the Resolution Professional be directed to place the Resolution Plan on record so the Tribunal can consider its relevant clauses.

Respondent's Arguments (Resolution Professional)

The application is, in substance, a review of the final judgment in disguise; the Tribunal has no jurisdiction to review its judgments and the present relief impermissibly seeks re-examination of findings.
The statement made by Respondent's counsel at the time of the original hearing—that the Resolution Plan did not contemplate any payment to the Appellant—was a correct statement as recorded in paragraph 16 of the judgment; there was no requirement to volunteer or highlight clauses (g) and (h) at that stage.
Even if two views are possible, that does not justify a review or re-appraisal of evidence or findings; Rule 11 of the NCLAT Rules cannot be invoked to revisit factual findings or merits of the appeal.
Reliance was placed on precedents of this Tribunal holding there is no express provision for review under the NCLAT Rules and that Rule 11 cannot be used to re-open factual findings (cases cited: Action Barter Private Limited vs. SREI Equipment Finance Limited and Ors.; Adish Jain vs. Sumit Bansal and Another; Deepak Kumar v. Phoenix ARC Pvt. Ltd. & Anr.).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Action Barter Private Limited vs. SREI Equipment Finance Limited and Ors. (2020 SCC OnLine NCLAT 1137)	Interpretation of Rule 11 of the NCLAT Rules: Rule 11 is declaratory of inherent powers; Rule 11 cannot be invoked to revisit findings of fact but can be used to correct mistakes apparent on the face of the record arising from oversight, inadvertence or human error; correction permitted where conclusion incompatible with recorded findings.	The Court relied on the principles stated in Action Barter to explain that Rule 11 permits correction of errors apparent on record and to limit the scope of Rule 11 (i.e., not to re-open factual findings). The Court applied that reasoning to determine that the present application sought correction, not review, and that rectification was permissible.
Adish Jain vs. Sumit Bansal and Another (2021 SCC OnLine NCLAT 52)	Holds that under the NCLAT Rules there is no express provision for review.	The Court acknowledged this authority (relied upon by the Respondent) for the proposition that there is no express provision for review; but distinguished the present application as one for correction/clarification under Rule 11 rather than a review of findings.
Deepak Kumar, Director of Sovereign Infrastructure & Developers Ltd. vs. Phoenix ARC Pvt. Ltd. & Anr. (2020 SCC OnLine NCLAT 648)	Also lays down that there is no express provision for review under the NCLAT Rules/Code.	The Court accepted the proposition from this decision but held that the current application does not amount to review and therefore the principle does not preclude correction/clarification under Rule 11 in the present factual matrix.
Forech India Ltd. (referenced in the quoted rectified judgment in Action Barter)	Referenced in the Action Barter rectified judgment as authority on matters concerning maintainability under Section 7 of the IBC (as cited in the quoted material).	The precedent is present within the quoted material of the Action Barter decision reproduced in the record; the Court's use is indirect—appearing in the quoted rectified paragraph of Action Barter—and the present judgment cites that quoted material but does not rely on Forech India Ltd. as a standalone controlling authority for the rectification sought in this case.

Court's Reasoning and Analysis

The Tribunal first examined its own findings in the judgment dated 06.05.2022. Paragraphs 15 and 16 of that judgment recorded that the Appellant had made out sufficient grounds for license fees to be treated as CIRP costs and that the Tribunal was satisfied the Appellant was entitled to a determination to that effect. However, during hearing counsel for the Respondent had stated that the Resolution Plan did not contemplate payment to the Appellant, and because the Resolution Plan had already been approved (22.06.2021), the Tribunal declined to direct payment as part of CIRP costs.

The Tribunal then considered new material placed before it in the present application: relevant extracts of the approved Resolution Plan (clauses (g) and (h)). Clause (g) provided that if CIRP costs exceed current estimates, the excess as per actuals would be borne by the Successful Resolution Applicant (SRA) subject to a maximum of Rs. 475 Crores; clause (h) provided that payment of CIRP cost in full shall have precedence over payment to any other creditors in terms of section 30(2)(a) of the Code. The Tribunal noted these clauses were not brought to its notice at the time of the original hearing.

The Tribunal addressed the objection that the application was an attempt to review its judgment. It observed that the present prayers did not seek to re-open or question findings of the judgment; rather, they asked for correction/clarification because the ultimate conclusion recorded was not in consonance with the findings recorded in paragraph 16 due to lack of awareness of clauses (g) and (h) at the hearing. The Court reiterated the settled position (from cited precedents) that there is no express review jurisdiction, but also accepted the legal proposition from Action Barter that Rule 11 (inherent powers) allows correction of mistakes apparent on the face of the record arising from oversight, inadvertence or human error, and to correct conclusions not compatible with recorded findings.

Applying that principle, the Tribunal concluded that the present application was one for correction/clarification (not review) and that rectification was warranted because the Resolution Plan indeed contemplated CIRP costs beyond the estimates (subject to limits), which, had it been placed before the Tribunal earlier, might have resulted in directions consistent with the Tribunal's finding that the Appellant was entitled for a determination that monthly fees should be treated as CIRP costs. The Tribunal therefore exercised its inherent powers under Rule 11 to rectify the final judgment's operative directions (specifically the last line of paragraph 16) to align the outcome with the recorded findings and to clarify the appellant's avenues for relief under the Resolution Plan.

Holding and Implications

Holding: The Tribunal allowed the application for correction/clarification and rectified its earlier judgment dated 06.05.2022. The rectified operative directions read (as reflected by the Tribunal):

(i) The impugned order dated 18.03.2021 is set aside.
(ii) The Respondent is directed to handover the vacant possession of the premises within 15 days from the date of the order.
(iii) The Appellant is at liberty to take appropriate steps for its claim of license fees subsequent to 22.06.2021 (end of the CIRP period).
(iv) After possession is handed over to the Appellant by the Respondent, the Appellant shall communicate within 30 days to the Respondent with regard to refund of security deposit, if any.

The Tribunal further clarified that it shall be open for the Applicant/Appellant to approach the Monitoring Committee entrusted with implementation of the Resolution Plan for its CIRP cost as per the provisions of the approved Resolution Plan (i.e., in light of clauses (g) and (h) permitting SRA to bear CIRP costs exceeding estimates up to Rs. 475 Crores and giving CIRP costs payment precedence).

Implications:

Direct effect: The Tribunal's final order of 06.05.2022 has been rectified to clarify operative directions; the Respondent must hand over vacant possession within 15 days, and the Appellant has procedural liberty to pursue claims for license fees after the CIRP period and to seek refund of any security deposit once possession is regained.
On resolution-plan enforcement: The Tribunal expressly permitted the Appellant to approach the Monitoring Committee under the approved Resolution Plan for recovery of CIRP costs in accordance with clauses (g) and (h) of that plan.
On precedent and scope of Rule 11: The Court reaffirmed that Rule 11 / inherent powers cannot be used to re-open factual findings, but may be exercised to correct mistakes apparent on record or to rectify conclusions incompatible with recorded findings. The present order corrects an inconsistency between recorded findings and operative directions because relevant Resolution Plan clauses were not before the Tribunal at the time of the original hearing.
No broader legal precedent beyond these clarifications was stated to be set by the Tribunal in this opinion; the decision primarily affects the parties' rights and remedies in the present matter.

Disposition: I.A. No. 1467 of 2022 disposed of in accordance with the rectifications and clarifications described above.

Bench: Justice Ashok Bhushan (Chairperson), Dr. Alok Srivastava (Member, Technical), Shreesha Merla (Member, Technical). Date of the order: 30th May, 2022.

Show all summary ...

Cont'd…/

NATIONAL COMPANY LAW APPELLATE TRIBUNAL,

PRINCIPAL BENCH, NEW DELHI

I.A. No. 1467 of 2022

Company Appeal (AT) (Insolvency) No. 389 of 2021

IN THE MATTER OF:

Mack Star Marketing Pvt. Ltd. .... Appellant/Applicant Vs

Ashish Chawchharia

Resolution Professional of

Jet Airways (India) Pvt. Ltd. ... Respondent

For Appellant: Shri Abhijeet Sinha, Mr. Aditya Shukla, Mr. Prakshal Jain, Ms. Angelika Awasthi and Ms. Shivani Rawat, Advocates.

For Respondent: Mr. Dhiraj Kumar Totala, Ms. Tanya Chib, Ms. Trisha Sarkar and Mr. Rohan Rajadhyaksha,

Advocates for RP.

J U D G M E N T

ASHOK BHUSHAN, J.

This Application by the Appellant/Applicant has been filed praying for correction and clarification in the judgment dated 06.05.2022 by which judgment Company Appeal (AT) (Ins.) No. 389 of 2021 has been finally disposed of by this Tribunal.

2. The Appeal was filed by the Appellant challenging the order dated 18.03.2021 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, Court No.I to which order I.A

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No.453/MB/2020 filed by the Appellant seeking a declaration that monthly fees payable to the Applicant under the Service Agreement for the relevant period shall form part of the CIRP costs in terms of the IBC. Further direction was sought directing the Liquidator to treat any claims of the Applicant relating to monthly fees for the relevant period under the Service Agreements as IRP costs. The Application was disposed of by the Adjudicating Authority holding that the Applicant (Appellant) is not entitled to any payment with respect to license fee after 31.05.2019. Aggrieved by the said order, the Appeal was filed by the Appellant which after hearing the Learned Counsel for the parties has been disposed of by judgment dated 08.05.2022. This Application has been filed by the Applicant/ Appellant praying for following reliefs:-

"(a) Allow the present application and correct the judgment dated 6 May 2022 passed in Company Appeal (AT) (Insolvency) No. 389 of 2021 by clarifying that since the resolution plan for the Corporate Debtor approved by the Ld. Adjudicating Authority vide Order dated 22 June 2021 provides for the payment of CIRP costs over and above those specifically provisioned for in the estimate of CIRP costs, the Appellant/Applicant is entitled to the consequential direction of payment of the Monthly Fees for the period the Corporate Debtor was undergoing CIRP as CIRP costs as per actual.

(b) Direct the Respondent to file and place on record the resolution plan for the Corporate Debtor

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approved by the Ld. Adjudicating Authority vide Order dated 22 June 2021; and

(c) Pass any other order(s) as this Hon'ble Tribunal may deem fit in the facts and circumstances of the instant case."

3. Shri Abhijeet Sinha, Learned Counsel for the Appellant submits that this Tribunal vide its judgment dated 06.05.2022 held that Appellant/Applicant was entitled for CIRP costs during the CIRP period. It is submitted by Learned Counsel for the Applicant that during the course of hearing, this Tribunal made a query to the Counsel for the Respondent that whether in the Resolution Plan which was approved on 22.06.2021 any payment towards CIRP costs has been envisaged which query was replied in negative by the Counsel for the Respondent. Hence, this Tribunal directed that no monthly fees shall be payable to the Appellant during the CIRP period. Whereas under the Resolution Plan, there was specific clause (g) that if the CIRP costs exceeds the current estimates, the excess amount as per the actual would be borne by the Successful Resolution Applicant subject to a maximum Rs.475 Crores and the above clause of the Resolution Plan ought to have brought before this Tribunal at the time of hearing. Ultimate direction could have been in accordance with the findings recorded by this Tribunal that Appellant was entitled for CIRP costs. It is submitted that the order needs correction and clarification to that effect.

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4. Learned Counsel for the Resolution Professional refuting the submissions of the Learned Counsel for the Appellant submits that the present Application is nothing but a Review Application is disguise. The Appellant seeks review of the finding in the impugned judgment dated 06.05.2022 whereas this Tribunal does not have any jurisdiction to review any judgment. It is submitted that the statement made by Counsel for the Respondent No.1 at the time of hearing that Resolution Plan does not contemplate payment of any CIRP costs to the Appellant was a correct statement. There was no requirement on the part of the Respondent No.1 to tell about the provisions of the Resolution Plan contained in clause (g) on which reliance has been placed by the Learned Counsel for the Appellant. Even if two views are possible on the point involved, the same is not a good ground to review and appraise the evidence on record and finding out an error which is impermissible in law. The Applicant has sought relief in the modification in exercise of inherent jurisdiction of this Tribunal under Rule 11 of the NCLAT Rules, 2016 which jurisdiction is required to be exercised ex debito justitiae. The Applicant is attempting to expand the scope of Application of Rule 11 of the NCLAT Rules, 2016 which he cannot be allowed to do under law. Learned Counsel for the Respondent placed reliance on the judgment of this Tribunal in "Action Barter Private Limited vs. SREI Equipment Finance Limited and Ors.- 2020 SCC OnLine NCLAT 1137". Learned Counsel for the

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Respondent has also placed reliance on the judgments of this Tribunal in

"Adish Jain vs. Sumit Bansal and Another- 2021 SCC OnLine NCLAT 52" and "Deepak Kumar Director of Sovereign Infrastructure & Developers Ltd. vs. Phoenix ARC Pvt. Ltd. & Anr- 2020 SCC OnLine NCLAT 648" where this Tribunal has held that under NCLAT Rules there is no express provision for review. It is submitted that what the Applicant is attempting to do is seek this Tribunal's intervention to revisit the findings in the judgment which are not open to re-examination by way of this modification IA.

5. We have heard Learned Counsel for the parties and perused the record.

6. We first notice the findings of this Tribunal as contained in the judgment dated 06.05.2022. Paragraphs 15 and 16 of the judgment are as follows:-

"15. Present is a case where the Resolution Professional has continued in the possession of the premises and exposed the Corporate Debtor for liabilities to pay license fees during the CIRP period which could be CIRP costs. The mere fact that CIRP has triggered and Moratorium has been imposed does not absolved the Corporate Debtor to pay for premises and facilities which is being enjoyed by the Corporate Debtor during the CIRP period.

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Sufficient ground has been made out by the Appellant in this Application to treat the license fees of the premises to be treated as CIRP costs. The Adjudicating Authority erroneously relying on Clause 21.3 alone has justified the continuance of occupation of the Respondent in the premises. The Adjudicating Authority directed for refund of security without any direction to the Respondent to handover the possession of the premises. The premises which was in occupation of the Corporate Debtor is a commercial premises and the Appellant have been deprived for the use of the premises for long period without any justifiable reason.

16. We have been informed by the Counsel for the parties at Bar that the Resolution Plan with regard to Corporate Debtor has been approved by the Adjudicating Authority by order dated 22.06.2021. By approval of the Resolution Plan, the CIRP period has come to an end and after 21.06.2021 still the premises are in occupation of the monitoring professional. It is not the case of the Respondent that any amount towards the license or damages have been paid or determined. On a pointed query, Learned Counsel for the Respondent submitted that no amount towards any payment to the leave and license fees of the premises have been contemplated in the Resolution Plan. Thus, Resolution Plan does not deal with any entitlement to the Appellant. Resolution Plan having been approved with no provision for making any

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payment to the Appellant since the Resolution Professional never accepted the amount as CIRP costs which was also approved by the Adjudicating Authority on 18.03.2021 by the impugned order erroneously. We, thus, are of the view that no direction in this Appeal can be given for payment of leave and license fees to the Appellant during the CIRP period even though we are satisfied that the Appellant was entitled for determination that monthly fees payable to the Appellant under the Service Agreement should have been treated as part of the CIRP costs. We, thus, dispose of this Appeal with following directions:-

(i) The impugned order dated 18.03.2021 is set aside.

(ii) It is held that no monthly fees shall be payable to the Appellant during the CIRP period.

(iii)The Respondent is directed to handover the vacant possession of the premises within 15 days from today.

(iv)The Appellant is at liberty to take appropriate steps for its claim of license fees subsequent to 22.06.2021 (end of the CIRP period).

(v) After possession of the premises is handed over to the Appellant by the Respondent, the Appellant shall communicate within 30 days to

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the Respondent with regard to refund of security deposit, if any.

The parties shall bear their own costs."

7. This Tribunal recorded a categorical finding in paragraph 16 that the Tribunal is satisfied that the Appellant was entitled for determination that monthly fees payable to the Appellant under the Service Agreement should have been treated as part of the CIRP costs but noticing the statement made at the Bar during the course of the submissions by the Learned Counsel for the Respondent that no amount towards any payment to the Leave and License fee of the premises has been contemplated under the Resolution Plan, this Tribunal could not issue any direction for payment of CIRP costs since Resolution Plan had already been approved.

8. Now before us, relevant extract of the Resolution Plan as set out in the order of the Adjudicating Authority dated 22.06.2021 has been placed. Clauses (g) and (h) of the Resolution Plan which is also extracted in paragraph 6 of the Application to which there are no denial in the reply filed by the Respondent No.1 to this Application are as follows:-

"g. It is further submitted that if the CIRP cost exceeds the current estimates, the excess amount as per actuals would be borne by the SRA subject to a maximum of Rs.475 Crores. Consequently, the

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payments towards Assenting FCs would get proportionately reduced."

"h. The Resolution Plan provides that the payment of CIRP cost in full shall have precedence over payment to any other Creditors, in terms of section 30(2)(a) of the Code."

9. The Resolution Plan thus, clearly contemplated that if the CIRP cost exceeds the current estimates, the excess amount as per actuals would be borne by the Successful Resolution Applicant subject to a maximum of Rs.475 Crores. Thus, payment of the CIRP costs which was not included in the estimates under the Resolution Plan was also contemplated upto Rs. 475 Crores. Unfortunately, at the time of hearing of the Appeal, the aforesaid clauses (g) and (h) of the Resolution Plan were not brought into the notice of this Tribunal.

10. Now we may notice the objection raised by the Counsel for the Respondent No.1 that this Application of review of the judgment in guise of Application under Rule 11 of the NCLAT Rules, 2016. The prayers of the Application have already been noticed above which does not in any manner pray for review of the judgment. Present is not a case where the Applicant is questioning any finding recorded by this Tribunal in its judgment dated 06.05.2022 nor Applicant is praying for review of the judgment. The only limited prayer is correction / clarification of the judgment in view of the fact that before the Tribunal at the time of

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hearing clauses (g) and (h) of the Resolution Plan were not brought into notice under which CIRP costs even if not part of the estimates in the Resolution Plan is payable subject to a maximum of Rs.475 Crores. Had the above fact has been brought before the Tribunal at the time of hearing, Court might have issued direction in consonance with the findings of the Tribunal. There is no dispute to the proposition that this Tribunal does not have any jurisdiction to review its judgment.

11. Judgments relied by the Counsel for the Respondent in "Adish Jain vs. Sumit Bansal and Another- 2021 SCC OnLine NCLAT 52" and "Deepak Kumar Director of Sovereign Infrastructure & Developers Ltd. vs. Phoenix ARC Pvt. Ltd. & Anr- 2020 SCC OnLine NCLAT 648" lays down that there is no express provision for review in the Code. There can be no quarrel to the proposition laid down by this Tribunal in the above two cases. We however, are satisfied that the present is not an Application for review of the judgment.

12. The Judgment on which much reliance has been placed by counsel for the Respondent is a judgment of this Tribunal in "Action Barter" (supra). The above case is also a case where after final Appeal decided by this Tribunal, IAs were filed for rectification of errors which crept in the judgment. With regard to Rule 11 of the NCLAT Rules, 2016, this Tribunal laid down following:-

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"6…………………..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

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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."

13. This Tribunal has clearly laid down that findings on questions of fact, how-so-ever erroneous cannot be allowed to be questioned. However, mistake which have due to oversight, inadvertence or human error can be corrected. Further it was held that it would be open to correct the conclusion if the same is not compatible with the finding recorded on the issues raised. Ultimately, the I.As were disposed of rectifying final judgment of the Tribunal, in paragraph 8 following has been held:-

"8. The I.As are accordingly disposed of by re casting para 5 of the judgment of this Appellate Tribunal, which, after rectification, would read as under:-

"5. The case of the Appellant is covered by the decision of the Hon'ble Supreme Court in Forech India Ltd. (supra), therefore, we hold that the Application under Section 7 of the I&B code filed by the Respondent - SERI Equipment Finance Limited is maintainable. In so

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far as pending winding up petition before the Hon'ble Bombay High Court is concerned, the Appellant in terms of the decision of the Hon'ble Supreme Court in Forech India Ltd (supra) may move before the Hon'ble High Court of Bombay.

The appeal is dismissed with the aforesaid observations. No costs." Rectified version of the Judgment in terms of this order be issued and placed on the file of Company Appeal (AT) (Insolvency) No. 1434 of 2019."

14. The Application in consideration does not question any finding nor is asking this Tribunal to revisit the findings recorded by this Tribunal in its final order dated 06.05.2022. The Appellant is asking only for correction of the error and submitting that the ultimate conclusion is not in accordance with the findings recorded by this Tribunal due to fact that Court was not apprised of the relevant clauses (g) and (h) of the Resolution Plan which could be brought only before this Tribunal by this Application. It is also relevant to notice that Resolution Professional does not question that clauses (g) and (h), as quoted above, were part of the Resolution Plan. Counsel submits that the statement made by Counsel for the Respondent before the Court as recorded in paragraph 6 is the correct statement made by Counsel for the Respondent. We accept the

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submission of the Counsel for the Respondent No.1 that the statement made by him as recorded in paragraph 16 of the judgment is the correct statement. The Court being not aware of clauses (g) and (h) of the Resolution Plan nor the said clauses could be brought before the Court. Ultimate conclusions recorded by the Court were not in consonance with the findings in paragraph 16 that the Appellant was entitled for determination was finding to the following effect:-

"16. ……….the Appellant was entitled for determination that monthly fees payable to the Appellant under the Service Agreement should have been treated as part of the CIRP costs."

15. We, thus, are of the view that in exercise of jurisdiction of this Tribunal under Rule 11 of the NCLAT Rules, present is a fit case where judgment dated 06.05.2022 needs correction and clarification. The last line of the paragraph 16 of the judgment containing direction is rectified and following is treated as rectified direction:-

"(i)The impugned order dated 18.03.2021 is set aside. (ii)The Respondent is directed to handover the vacant possession of the premises within 15 days from today.

(iii) The Appellant is at liberty to take appropriate steps for its claim of license fees subsequent to 22.06.2021 (end of the CIRP period).

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(iv) After possession of the premises is handed over to the Appellant by the Respondent, the Appellant shall communicate within 30 days to the Respondent with regard to refund of security deposit, if any."

16. We further clarify that it shall be open for the Applicant/ Appellant to approach the Monitoring Committee entrusted with the implementation of the Resolution Plan for its CIRP cost as per the provisions of the approved Resolution Plan. The Application I.A No. 1467 of 2022 is disposed of accordingly.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical) [Shreesha Merla] Member (Technical)

NEW DELHI

30^th May, 2022

Anjali