Recall Jurisdiction Cannot Be Used To Reopen Concluded Orders On Merits: NCLAT New Delhi

The National Company Law Appellate Tribunal (NCLAT), New Delhi, on 2 November held that a concluded order rejecting an application for condonation of delay cannot be reopened through recall proceedings to secure a review on merits, unless established grounds such as fraud, collusion, lack of jurisdiction or judicial error are demonstrated.

A Bench of Officiating Chairperson Justice Yogesh Khanna with Technical Members Barun Mitra and Ajai Das Mehrotra dismissed a recall application filed by Excel Arcade Private Limited, holding that the applicant could not use recall proceedings to reopen an order rejecting its plea for condonation of delay. It observed:

“The recall application, in the shape that it has been filed, has the characteristics of review of an order passed on merits. We are of the considered view that allowing the present recall application will tantamount to disturbing the foundational principles of res judicata which we do not countenance.

The power of recall is not the power to rehear the case to find out any apparent error in the judgment. This lies in the scope and ambit of a review of judgment which power to review has not been vested upon this Tribunal.”

The matter arose from an appeal filed by Excel Arcade challenging an order passed by the National Company Law Tribunal (NCLT), Mumbai Bench, in insolvency proceedings. Along with the appeal, the company had sought condonation of delay.

On 22 May 2026, the NCLAT dismissed the condonation application after finding that the appeal had been e-filed beyond the statutory limitation period of 30 days and the additional 15 days that can be condoned under Section 61(2) of the Insolvency and Bankruptcy Code, 2016.

Excel Arcade subsequently filed a recall application seeking to revive the appeal. It contended that the delay was not attributable to negligence but resulted from technical glitches in the NCLAT Registry's e-filing system. According to the applicant, its counsel had attempted to e-file the appeal within the limitation period on 22 January 2026 but could not do so because of technical difficulties.

Unity Small Finance Bank Limited, the respondent, opposed the application on the ground that recall jurisdiction could be exercised only in limited circumstances, such as where an order was obtained through fraud or collusion, a necessary party was not impleaded, the court had passed an order by mistake, or it lacked jurisdiction to do so.

The respondent further submitted that the order dated 22 May was a detailed and reasoned decision passed after hearing the parties and had not been challenged before the Supreme Court. It argued that Excel Arcade was attempting to reopen a concluded decision through recall proceedings.

Examining the issue, the Appellate Tribunal relied on the Supreme Court's judgment in Budhia Swain v. Gopinath Deb, which delineates the limited circumstances in which a court may recall its own order. It observed that recall jurisdiction could be exercised only in the circumstances recognised by law and that the applicant had failed to establish any of those grounds.

It noted that the applicant had not challenged the original order before the Supreme Court but had instead sought its reconsideration through recall proceedings, amounting to a review under the guise of recall. Emphasising finality in litigation, it observed:

“The principle of res judicata and the doctrine of finality is one of the edifices on which the judicial architecture rests to checkmate arbitrary or unfounded attempts to overturn concluded decisions.”

Further, the Bench held that a concluded order could not be reopened merely because a party believed the decision to be erroneous. It noted that Excel Arcade had not challenged the order before the higher appellate forum and that the decision had consequently attained finality.

It also rejected the applicant's explanation for the five-day delay beyond the statutory limitation period. It found the reliance on intervening holidays unpersuasive, observing that the e-filing facility remained operational round the clock throughout the year. The applicant had, therefore, failed to satisfactorily explain the delay beyond the statutory 45-day period.

Accordingly, the NCLAT dismissed the recall application.