FIVE STAR BUSINESS FINACE LIMITED vs JAYASHANKAR on 30 June 2025

ORDER

1. This application is filed by the respondent to the S.A No. 202/2023 which was disposed of by the final order dated 20.02.2024. The petitioner herein seeks to set aside the final order dated 20.02.2024 and restore the SA and pass such other orders.

2. The petitioner herein has filed IA No. 776/2024 an application to condone the delay of 36 days in filing this application which stands allowed.

3. Since the matter relates to a prayer for re-hearing after the said final order this Tribunal is not adverting to the facts leading to the impugned measures which were reiterated in this application. It is stated that the S.A was filed on 09.08.2023 challenging the possession notice and it was which was initially called on 10.10.2023 for proof of service and adjourned to 30.10.2023.

4. On 30.10.2023 the respondents herein who are the applicant to the SA failed to produce the proof of service hence the matter was adjourned to 31.10.2023. On 31.10.2023 the respondent counsel was present and took notice in the S.A. It is also stated that 24.11.2023 on advocate Mr. Gurumurthy filed vakalath for the petitioner herein and the matter was adjourned to 18.01.2024 for filing objection and subsequently the matter stood posted on 13.02.2024 and 19.02.2024 for objections. It is stated that due to the medical emergency of the counsel the objections could not be filed on time. Taking note of the fact that no objection is filed, this Tribunal allowed the SA vide final order dated 20.02.2024 which is now sorted to be recalled

5. Since the issue to be decided is whether this Tribunal can recall its own order and re-hear the matter this Tribunal is not going into the facts as stated in the application in support of legality of measures leading to the possession notice which was set aside by the order sought to be recalled.

6. The Ld. Counsel for the petitioner places reliance on “Grindlays Bank Lts Vs. Central Government Industrial Tribunal and Ors.” Wherein the Hon’ble Supreme has held that this Tribunal is not functus officio after passing the order and is entitled to recall the order.

“We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Narshi Thakershi v. Pradyumansinghji is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of s. 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act. While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in s. 11. The answer to the question is, therefore, to be found in sub-s. (1) of s. 11 and not in sub-s. (3) of s. 11. Furthermore, different considerations arise on review. The expression 'review' is used in two distinct senses, namely

(1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershi's case held that no review lies on merits unless a status specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal.

The contention that the Tribunal had become functus officio and therefore, had no jurisdiction to set aside the ex parte award and that the Central Government alone could set it aside, does not commend to us. Sub-section (3) of s. 20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable under s. 17A. Under s. 17A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication under s. 17. The proceedings with regard to a reference under s. 10 of the Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award. Till then the Tribunal retains jurisdiction over the dispute referred to it for adjudication and upto that date it has the power to entertain an application in connection with such dispute. That stage is not reached till the award becomes enforceable under s. 17A. In the instant case, the Tribunal made the ex parte award on December 9, 1976. That award was published by the Central Government in the Gazette of India dated December 25, 1976. The application for setting aside the ex parte award was filed by respondent No. 3, acting on behalf of respondents Nos. 5 to 17 on January 19, 1977 i.e., before the expiry of 30 days of its publication and was, therefore, rightly entertained by the Tribunal. It had jurisdiction to entertain it and decide it on merits. It was, however, urged that on April 12, 1977 the date on which the impugned order was passed the Tribunal had in any event become functus officio. We cannot accede to this argument. The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order. There is no finality attached to an ex parte award because it is always subject to its being set aside on sufficient cause being shown. The Tribunal had the power to deal with an application properly made before it for setting aside the ex parte award and pass suitable orders.”

7. It is to be noted that the order passed by this Tribunal on 20.02.2024 is not in the nature of an exparte order as the name of the respondent’s counsel is also mentioned. Even going by the proceedings leading to the passing of the order sought to be recalled at no point of time this Tribunal has set the respondent

Exparte. This Tribunal passed the order taking note of the fact that no objections is filed by the respondent. Now the respondent seeks to reopen the chance for filing the objections and re-contest the matter on merits.

8. After hearing the counsel for the applicant and after taking into consideration the judgments relied upon by the applicant, this Tribunal is of the view that even though this Tribunal is not a functus officio after disposal of the order, this Tribunal cannot revisit its own order and rehear the matter on merits as this Tribunal cannot usurp the jurisdiction of Appellate Tribunal by giving the respondent a chance to file their objections. It is also to be noted that the applicant is not seeking the review of the order. Even otherwise is seeking the rehearing of the matter which is disposed off not exparte is not maintainable.

9. Taking into consideration the above the Tribunal is of the view that the present MA No. 10/2024 is not maintainable before this Tribunal as this Tribunal cannot usurp the Jurisdiction of Appellate Tribunal in the guise of re-hearing the matter this MA is to be dismissed.

10. Hence MA No. 10/2024 stands dismissed. Interim order pending if any, stands disposed off in terms of this order. No order as to cost.

[Dictated to the Stenographer (AJ), transcribed by her, corrected and signed and pronounced by me in the Open Court, this the 30th Day of June, 2025]. Sd/- (T. RAJESH)

PRESIDING OFFICER