TaxTMI 
TaxTMI 
2019 (12) TMI 1023
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....LT, Mumbai, a company incorporated under the laws of Cayman Islands as respondent no.3, another company incorporated under the laws of Cayman Islands as respondent no.4 and Insolvency Professional as respondent no.5. The sixth respondent is a company of which the petitioner before us is the Chairman and Managing Director. 6. It is alleged in the memo of the petition that on 8th November, 2019, respondent no. 5 entered upon and took charge/ possession of the registered office of the sixth respondent on the basis of an order of the NCLT, Mumbai. That order is purportedly passed on 22nd October, 2019. The argument is that this order is non est. It has no force in law. 7. We will come to the allegations in relation to this aspect of the matter a little later. The nature of the proceedings would have to be first noticed. It is stated that on 16th May, 2013, Rolta LLC, a limited liability company incorporated in Delaware, United States of America executed an Indenture dated 16th May, 2013 for issuance of 10.75% Senior notes in aggregate principal amount upto USD200,000,000/-. Rolta LLC issued 10.75% Senior notes and for ease in reference, t....
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....NCLT had initiated CIRP of respondent no. 6 by passing the impugned order. That he has been pointed as Interim Resolution Professional (IRP). The affairs as well as management of the sixth respondent would henceforth be operated by respondent no.5. It was further informed that a public announcement would be made and published in the newspapers as well as website of respondent no. 6 informing all creditors and the public at large that the IRP of respondent no. 6 has been initiated and that the claims of all creditors be filed with respondent no.5. In para 16 of this petition, it is said that inquiries were made with respondent no. 5, who shared a copy of the impugned order. Upon perusal of the impugned order, it was revealed that it was allegedly passed on 22nd October, 2019 and the second respondent to this petition was directed to forthwith transmit copies of the same to all parties concerned. The petitioner made inquiries with the sixth respondent and the office of its advocates on record before the NCLT.. However, it was confirmed by them that the impugned order has not been received. The order has not been uploaded on the website of the....
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....said Rules. The impugned order has resulted in the Petitioner losing control & directorship of Respondent NO. 6. It is submitted that the Petitioner is severely hampered by the Impugned Order being passed in contravention of the said Rules as well as settled principles of law in this regard as the same has prevented him from utilizing the complete period provided under the Insolvency & Bankruptcy Code, 2016 for preferring an appeal and approaching the National Company Law Appellate Tribunal for appropriate reliefs in time." 14. The further paragraphs of the petition contain reference to the NCLT Rules and then the averment is that the petitioner is aggrieved as the NCLT has passed the impugned order in an illegal manner in violation of the said Rules. The impugned order has resulted in the petitioner losing control and directorship of respondent no.6. 15. The petitioner, therefore, says that coercive steps would be taken by respondent no. 5 and having been left with no other remedy, he has filed this petition. The grounds are then set out and in relation to the validity and legality of the order, it is stated that this order is passed in violatio....
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....er, 2019 at 3.00 p.m. with all original records concerning the case, in which the order impugned in the petition is purportedly passed. The matter was adjourned to 21st November, 2019. On 21st November, 2019, we passed a detailed order and that order reads as under:- "1. On this petition, after hearing both sides, the following order was passed on 18th November, 2019. "Let the Prothonotary & Senior Master issue a telephonic notice, as also by email ([email protected]) and hand-delivery to the Registrar of National Company Law Tribunal, Mumbai Bench, respondent No.2 in this petition, requesting him to remain present before this Court on 20-11-2019 at 3.00 p.m., with all original records concerning the case in which an Order is purportedly passed by the Tribunal on 22-10-2019 being C.P. (IB) No.4375/NCLT/MB/2018." 2. On 21st November, 2019, after the matter was called out, Mr.R.V.Govilkar, appearing on behalf of respondent Nos.1 and 2, tendered the original record. 3. However, what is tendered before this Court yesterday was a Register, which, according to Mr.Govilkar, contains the details such as the number of the proceedings, the date o....
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....forcement, on application made by either of the parties to the order or suo motu. (5) Every order or judgment or notice shall bear theseal of the Tribunal." 9. Then, Mr.Dwarkadas would submit that the argument of the petitioner is not hyper-technical as is projected by the other side. The argument is that there is no legal and valid order unless it is pronounced. The order may have been kept ready for pronouncement, but the Tribunal, exercising judicial powers, ought to have pronounced that order. He would submit that the Rule is couched in a language, which makes the pronouncement mandatory. It may be a pronouncement at once or as soon as after hearing the applicant and the respondent is concluded. It may not be possible to immediately pronounce the order, but there is outer limit also prescribed of thirty days from the date of final hearing. Mr.Dwarkadas submits that assuming that this outer limit is not mandatory, what is mandated by the Rules is "pronouncement". By Rule 151, pronouncement of order by any one member of the Bench is permissible. That will be a pronouncement on behalf of the Bench. When the order is....
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.... and attributed to Mr.Govilkar, are made on instructions of the Deputy Registrar of the Tribunal, who is present in the Court. 14. Mr.Kadam says that his client be allowed to inspect the original record and thereafter to make submissions on the point. We deem it fit and proper to offer such an opportunity to the contesting respondent. 15. Let the concerned representative or the advocate for the contesting respondent inspect the record whereafter Mr.Kadam can make his submissions on the point. 16. Incidentally, we note that there are judgments of the Hon'ble Supreme Court, which rendered in two similar cases. 17. We take on record the affidavit of Mr.Narendra Gupta. 18. Stand over to 22nd November, 2019." 18. After that order was passed, we have also taken on record an affidavit dated 18th November, 2019 of one Narendra Gupta, an employee of respondent no. 6 as Principal Group Manager and Secretary of the Chairman and Managing Director. He says that he is serving the company in this capacity since 1991. On 15th November, 2019, accompanied with the advocates on record for respondent no. 6, he attended the office of NCLT situ....
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.... Bench as a result of this prohibits: a)the institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b)transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; c) any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d)the recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor. II. That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period. III. That the provisions of sub-section (1) of Section 14 of I&B Code shall not apply to such transactions as may be notified by the Central Government in consultation w....
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....Ltd. vs. ICICI Bank and Anr. In para 14, the Bench records its conclusions and in para 15, it says that the debt and default of the Corporate Creditor has been established and the application deserves to be admitted. Thereafter, the Bench appoints the fifth respondent as IRP and in para 17, it says that the application under sub-section (2) of section 7 of the IBC is complete. The existing financial debt of more than rupees one lakh is due and payable against the Corporate Debtor and its default is also proved. The application is within the limitation. Accordingly, the application filed under section 7 of the IBC for initiation of CIRP against the Corporate Debtor deserves to be admitted. Thereafter follow the operative directions. 22. Pertinently, the application, on which this order is passed, is dated 14th November, 2018 and there is nothing to controvert the factual averment and allegation in the writ petition that the Judicial Member Mr.V.P.Singh was promoted as a member of the NCLAT. That a notification to that effect is dated 15th October, 2019 and that Mr.Singh demitted office on 22nd October, 2019 and took the charge in NCLAT as a ....
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....rinciples of natural justice or a grave error of jurisdiction. Save and except such exceptions, the general rule should be applied and the petition must be thrown out only on this ground. The argument is that there are plural remedies available. There are not one but two appeals which the petitioner can file. The petitioner can file an appeal to the NCLAT and if that fails to redress the grievance of the petitioner, then, the order of such an appellate tribunal can be further challenged by way of an appeal in the Hon'ble Supreme Court. In the face of plural remedies, the petition should not be entertained. 24. Mr.Kadam was at pains to point out that there is no case made out to invoke the exception at all. In fact, we must be mindful of the object and purpose of enacting a self contained or complete Code like IBC. Our attention has been invited to the preamble of this Code. Mr.Kadam then emphasised the fact that now a speedy and expeditious resolution of the disputes is possible. We would be scuttling the time line set out in the IBC if we entertain this writ petition. In that regard, our attention is invited to sub-sections (2) to (5) o....
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....itten request for passing of the order. That request is also on file. Unfortunately, for want of time or on account of huge pendency of cases, the Members did not pass the order. In these circumstances, on this ground alone, the petition should not be entertained. 25. On the other hand, Mr.Dwarkadas, learned senior counsel appearing for the petitioner would submit that the arguments of Mr.Kadam overlook the averments and assertions of the petitioner in the memo of the petition. In this petition, there is a clear issue of the tribunal not complying with the procedural rules at all. All cannons of fairness, equity and justice have been breached and violated. There is a clear allegation of breach of principles of natural justice, inasmuch as, the petitioner has not been treated in a just and fair manner. The petitioner was not aware of the fact that the impugned order is to be pronounced or will be pronounced on 22nd October, 2019. There is in fact no pronouncement of the order at all. The factum of its communication and that too after 15 days cannot displace the requirement of the order having to be pronounced. There is n....
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....te of Uttar Pradesh (AIR 1954 SC 194); 3. Commissioner of Income Tax, Central-II, Delhi vs. Sudhir Choudhrie (2005 SCC Online Del 726); 4. Pushpa Shah vs. Union of India and Ors. (Writ Petition (L) No.352 of 2019 decided on 4th March, 2019); 5. Swiss Ribbons Private Limited and Anr. vs. Union of India and Ors. [(2019) 4 Supreme Court Cases 17]; 6. Coal India Ltd. and Ors. vs. Saroj Kumar Mishra [(2007) 9 Supreme Court Cases 625] 28. On the point of maintainability and the power of this court to issue a writ of certiorari, we do not think that there was ever any doubt. The problem is that the salutary principles enshrined in the judgments of the Hon'ble Supreme Court post the Constitution have by now been almost forgotten. The salutary principles can be summarised hereinbelow. Once we summarise them, then, we do not think that we are either departing or deviating from the same. 29. In the case of T. C. Basapa vs. T. Nagappa and Anr. , the Five Judge Bench of the Hon'ble Supreme Court had an occasion to refer to the essential features, effect and grounds on which the writ of certiorari is issued. The Hon'ble Supreme Co....
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....e facts of a particular case. 9. 'Certiorari' may and is generally granted when a court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject matter of the proceeding or from the absence of some preliminary proceeding or the court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances, vide 'Hasbury, 2nd edition, Vol.IX, page 880. When the jurisdiction of the court depends upon the existence of some collateral fact, it is well settled that the court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess, vide - 'Bunbury v. Fuller', (1854) 9 Ex 111 (F); R.v. Income Tax Special Purposes Commissioners', (1989) 21 QBD 313 (G). 10. A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of 'certiorari' may be available in such cases. An error in the decision or determination itself may also be amenable to a....
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....ts a person or authority to whom it could be issued, and that in consequence, they cannot be issued where no such authority exists. We are of opinion that this is not true import of the language of the Article. The scope of Article 226 is firstly that it confers on the High Courts power to issue writs and directions, and secondly, it defines the limits of that power. This latter it does by enacting that it could be exercised over any person or authority within the territories in relation to which it exercises its jurisdiction. The emphasis is on the words "within the territory", and their significance is that the jurisdiction to issue writ is co-extensive with the territorial jurisdiction of the court. The reference is not to the nature and composition of the court or tribunal but to the area within which the power could be exercised." 31. After these two judgments of the Hon'ble Supreme Court, there remains no doubt, but, if still anything remained to be stated with regard to the power of the superior/High Court to issue a writ of certiorari, in a Four Judge Bench decision of the Hon'ble Supreme Court in the case of A.M.Allison and Anr. vs. B.L.Sen and O....
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....or bodies is not in an appellate, but supervisory capacity (see para 20). 34. In a later decision in the case of Syed Yakoob vs. K. S. Radhakrishnan and Ors. , the Hon'ble Supreme Court, while dealing with a challenge to an order passed by the State Transport Authority, Madras exercising powers under the then Motor Vehicles Act, 1939, held that a writ of certiorari can be issued in the following circumstances:- "(7) The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the ord....
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....r clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious, mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law an....
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.... refused only because the party resisting the writ petition urges that there are alternate and equally efficacious remedies available to the petitioner approaching this court seeking a writ of certiorari to challenge the adverse order. As has been succinctly clarified by the Hon'ble Supreme Court that this writ of certiorari goes to a court. It may be issued at the request of parties, but it is not a writ which can be claimed by the parties. It is a writ which is directed or addressed to the court and the High Court can always issue it once it is satisfied that the orders impugned before it and challenged on the grounds mentioned above occasion a failure of justice. Thus, if the orders of the court or tribunal subordinate to this court result or occasion a failure of justice, then, this writ of certiorari can always be issued. There is no question of then refusing it merely because the opponent or opposite party says that the person or the party invoking this writ has an alternate and equally efficacious remedy. That means everything that the court or the tribunal has done can either be condoned or overlooked by us and thereafter the only remedy availa....
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.... all the petitions and set aside the directions in the order of the State Commission. The Division Bench also expunged the remarks contained in para 13.1 of the order. It is in these circumstances that the Hon'ble Supreme Court examined the rival contentions and particularly that the Division Bench of the Delhi High Court committed error by entertaining the writ petition ignoring the fact that the 1986 Act is a Code in itself and the remedy of appeal available against the order passed by the State Commission is an equally efficacious remedy. The Hon'ble Supreme Court also noted the argument to the contrary. From para 11 onwards, the Hon'ble Supreme Court referred to the settled principles. The Hon'ble Supreme Court held that the High Court does not act as a court of appeal against a decision of the court or tribunal to correct errors of fact and does not, by assuming jurisdiction under Article 226 of the Constitution of India, trench upon an alternate remedy provided by statute for obtaining relief. The aggrieved petitioner can move another tribunal and obtain the relief or seek redress and this is, therefore, a normal ground on which the High Court wo....
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....rence was impermissible and still, the High court interfered in writ jurisdiction. There, the challenge was to the order of the Debt Recovery Tribunal (DRT). The facts have been noted and the Hon'ble Supreme Court found that mandatory requirements of Rule 9 of the Security Interest (Enforcement) Rules, 2002 were not followed and therefore, despite the remedy of appeal to the borrower provided under section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), a case was made out for interference. The Hon'ble Supreme Court concluded that this was not a case of the mandatory requirement being not followed. The borrower in that case had waived his right given under Rule 9(1) or for that matter, Rule 9(3) or 9(4) of the subject rules and in fact a sale certificate was issued. The Division Bench also committee an error in upholding the erroneous order of the learned Single Judge. This is the aspect which travelled from High Court to the Hon'ble Supreme Court. It observed in para 23 that against the action of the bank under section 13(4) of the SARFAESI Act, the borrower h....
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....a regular, routine norm. The mode of deciding applications in the impugned manner will become a precedent. We are more concerned about this aspect of the matter. In all the decisions that Mr.Kadam relies upon, we find that the Hon'ble Supreme Court, in the facts peculiar to those cases, observed and held that the writ petitions should not have been entertained and the High Court committed gross error in entertaining them. The decisions are distinguishable on facts. 45. To our mind, the present case falls within the exceptions carved out in several decisions of the Hon'ble Supreme Court, including those which are referred by a Division Bench of this court in the case of Pushpa Shah vs. Union of India , decided on 4th March, 2019. The Division Bench, in passing an order on the preliminary objections, held that one of the exceptions carved out in the judgments of the Hon'ble Supreme Court is whether the statutory authority has not acted in accordance with the provisions of the enactment in question. Pushpa Shah (supra) was also as near as the present one. In fact, the present case is far more serious. It is also raising an important questio....
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....wledge of the pronouncement. There is no notice to the parties by the Registry of the tribunal of the date and time of pronouncement. There is no intimation by the tribunal's Registry. There is no evidence of advance intimation by the tribunal Registry to the parties. The original records summoned by this court do not contain any contemporaneous record of pronouncement of the order on the given date and time or on the date and time indicated in the impugned order. Assuming a signed copy of the order is ready, that does not mean that it is pronounced. That 11th November, 2019 is the date on which the order was made known to or communicated to the petitioner is no evidence of its prior pronouncement and in accordance with the rules. Mr.Dwarkadas would submit that pronouncement is not an empty formality. It is a serious stage and step in the proceedings. The proceedings conclude in an order, but that order to be enforceable and binding on the parties requires it to be pronounced. Once there is no pronouncement, but alleged subsequent intimation and communication of the order, then, that does not meet the requirement of the ru....
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....s subserve larger public interest. They are inserted with a definite object and purpose. The object and purpose underlining them is to preserve and protect the sanctity of judicial proceedings. The sanctity of judicial proceedings cannot be sacrificed and surrendered at the alter of total disregard to settled and established procedure. Mr.Dwarkadas has brought to our notice the fact that the petitioner has filed an affidavit to support the allegations in the writ petition and secondly, relied upon the record maintained in the Registry of the tribunal. That record shows that there was no board or cause list prepared containing an item for pronouncement of the order in this petition. The cause list of that date with this endorsement "for pronouncement" is pushed in by creating it subsequently and pages 547 and 547-B of the petition paper book, according to Mr.Dwarkadas, would evidence this aspect. For all these reasons, he would submit that we must quash and set aside the order impugned in the petition as it is a nullity. 48. Mr.Dwarkadas, in support of his argument that the impugned order is a nullity, relied upon the judgments of the Hon'ble S....
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....porate Debtor before the adjudicating authority when a default has occurred. Mr.Kadam would submit that the term "adjudicating authority" is defined in section 5(1) of this Code and it says that for the purposes of this Part it means the National Company Law Tribunal constituted under section 408 of the Companies Act, 2013. Mr.Kadam's endeavour is to show that there are rules traceable to section 439 of the Companies Act, 2013, which the tribunals apply as procedural rules to decide cases under the Companies Act, 2013. 50. The NCLT has to exercise this judicial power and when that judicial power has to be exercised by it, the set of rules that are to be applied is a matter with which we are primarily concerned. Section 239 of the IBC confers the power to make rules. That is a power conferred in the Central Government. The matters in regard to which the rules can be made, inter alia, are the form, the manner and the fee for making application before the adjudicating authority for initiating CIRP by financial creditor under subsection (2) of section 7. The rules which Mr.Kadam highlights are traceable to this power of the Central Government. It ....
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.... for rendering a decision on matters covered by the Companies Act, 2013 cannot be ipso facto applied to the proceedings under the IBC. If the NCLT is free to devise another procedure or because there is no procedure while dealing with an application under the IBC, then, all that the tribunal is expected to adhere to are the principles of natural justice. The NCLT rules at best can be applied in addition. Rules 150 to 152 of the NCLT Rules, 2016 do not necessarily apply. Once there is an order passed in accordance with the power conferred in the NCLT by the IBC and that is communicated, it should be taken as sufficient compliance with the procedural rules. All the more, when the statue is a complete Code. The communication that is expected through the tribunal Registry under sub-section (7) of section 7 of the IBC is admittedly done in this case. All the more, therefore, we should not import anything into this law. We must go by the spirit of section 7(7) of the IBC. Mr.Kadam submits that the IBC is noteworthy departure from the long, cumbersome proceedings of winding up and liquidation under the erstwhile Companies Act. The Comp....
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....einafter referred to as "the IBC Rules, 2016") published in the Official Gazette of India. After referring to these rules, particularly Rule 10, Mr.Kadam would submit that till such time the rules of procedure for conduct of proceedings under the IBC are notified, the application under sub-section (1) of section 7, sub-section (1) of section 9 or sub-section (1) of section 10 of the IBC shall be filed before the adjudicating authority in accordance with Rules 20 to 26 of Part III of the NCLT Rules, 2016. Mr.Kadam submits that the legislative intent is clear. Such of the rules of the NCLT, which are to be specifically applied, have been specifically set out in Rule 10(1) of the IBC Rules, 2016. If these do not make any reference to all the NCLT Rules, 2016 and particularly Rules 150 to 152 thereof, then, we must not read in Rule 10 something which is expressly not stated therein. Mr.Kadam would submit that section 424 of the Companies Act, 2013 is a pointer or an indicator and that would denote that only some and not all rules of the Companies Act would apply. 54. Mr.Kadam concluded his arguments by contending that Rule 150 of the NCLT Rules, 2016 do....
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....lidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders, including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India and for matters connected therewith or incidental thereto. Mr.Kadam stops by reading only this aspect highlighted in the Statement of Objects and Reasons. In para 3 of the Statement of Objects and Reasons, it is stated that the Code seeks to provide for designating the NCLT and DRT as the adjudicating authorities for corporate persons and firms and individuals, respectively, for resolution of insolvency, liquidation and bankruptcy proceedings from judicial aspects. The Code also seeks to provide for establishment of the Insolvency and Bankruptcy Board of India (Board) for regulation of insolvency professionals, insolvency professional agencies and information utilities. Till the Board is established, the Central Gov....
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....ribed by rules made by the Central Government. Then, there is a clearcut indication and that is to be found in section 2(27). 59. Part II of the IBC contains Chapter I titled as "Preliminary". In that as well, definitions of the said part are set out. Unless the context otherwise requires, the term "adjudicating authority" for the purpose of Part II means the NCLT constituted under section 408 of the Companies Act, 2013. That it is a tribunal which is exercising judicial powers and the substitute for the Company Court is therefore clear from section 5(1) itself. The other definitions relied upon are to be found in section 5(1) to (12). They read as under:- 5(1) "Adjudicating Authority", for the purposes of this Part, means National Company Law Tribunal constituted under section 408 of the Companies Act, 2013 (18 of 2013); 5(2) "auditor" means a chartered accountant certified to practice as such by the Institute of Chartered Accountants of India under section 6 of the Chartered Accountants Act, 1949 (38 of 1949); 5(3) "Chapter" means a Chapter under this Part; 5(4) "Constitutional document", in relation to a corpor....
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....s, "allottee" and "real estateproject" shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016); (g) any derivative transaction entered into inconnection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of aguarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of theguarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of the clause; 5(9) "financial position", in relation to any person, means the financial information of a person as on a certain date; 5(10)"information memorandum" means a memorandum prepared by resolution professional under sub-section (1) of section 29; 5(11) "initiation date" means the date on which a financial creditor, corporate applicant or operational credit....
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....n the basis of other evidence furnished by the financial creditor under sub-section (3). (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application undersub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) default has not occurred or the application undersub-section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order, reject such application. Provided that the Adjudicating Authority shall, before rejecting the application under clause (b) of sub-section (5), give a notice to the applicant to rectify the defect in his application within seven days of receipt of such notice from the Adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5). (7) The Adjudicating Authority shall communicate- (a) the order under clause (a) of sub-section (5) tothe financial creditor and the corporate de....
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....ting authority must ascertain the existence of the default from the records of the information utility or on the basis of other evidence furnished by the Financial Creditor under sub-section (3). Thus, the ascertainment of default has to be made and that is based upon either information provided or there has to be evidence furnished by the Financial Creditor. Upon perusal of everything, the adjudicating authority has to record a satisfaction in terms of sub-section (5) of section 7. The adjudicating shall give a notice to the applicant to rectify the defects in his application within the time stipulated in the proviso. The CIRP shall commence from the date of admission of the application under subsection (5) and that is contemplated by sub-section (6), whereas, sub-section (7) says that the adjudicating authority shall communicate the order under clause (a) of sub-section (5) to the Financial Creditor and the Corporate Debtor. The order under clause (b) of sub-section (5) shall be communicated to the Financial Creditor within the time stipulated in clause (b) of subsection (7) of section 7. 62. Now, the NCLT has to exercise this judicial power and w....
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.... sections 9 and 10 that the rule makers have provided the procedure in that behalf in the NCLT Rules, 2016. Thus, only the procedure in relation to filing of application, which has been set out in the NCLT Rules, 2016, is applied until the rules of procedure for conduct of proceedings under the Code are notified. We cannot read sub-rule (1) of Rule 10 as suggested by Mr.Kadam. He would argue that Rules 20 to 26 of Part III of the NCLT Rules, 2016 shall apply and rest of the NCLT Rules, 2016 would not apply. This argument overlooks the fact that the rules of procedure for conduct of proceedings under the Code have yet to be notified, the framers of the rules and the legislature itself did not want a vacuum to be created. Otherwise, there would be no guide at all. A pre-existing or pre-established tribunal functional much before the Code came into force has been chosen for adjudication of the applications under section 7. That is how the term "adjudicating authority" is defined in the Code. Therefore, until the rules of procedure in relation to the conduct of proceedings under the IBC are notified, the NCLT Rules, 2016 would be the gove....
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....quired to ascertain the existence of the default from the records of the information utility or on the basis of other evidence furnished by the Financial Creditor. In terms of sub-section (5), the adjudicating authority must record its satisfaction and that is in relation to the default, if it has occurred and the satisfaction in that behalf has to be in terms of clause (a) of sub-section (5) of section 7 and if the default has not occurred or the application under sub-section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, the rejection of the application is contemplated. Therefore, clause (a) of sub-section (5) enables admission of the application on the necessary satisfaction being recorded with regard to the default. Further, the disciplinary proceedings should not be pending against the proposed resolution professional. If the satisfaction is recorded on this ground, the order of admission can be made, whereas, the rejection is contemplated by clause (b) of sub-section (5) of section 7. Before rejection of the application, the applicant has to be given an opportunity to rectify the defect a....
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....y that assurance or guarantee to the litigant. The legislature never intended to take away such an assurance and certainly, it cannot be taken away on the ground of expediency. Merely because the legislature intended quick, speedy and expeditious resolution of disputes enumerated in and covered by the IBC does not mean that it will be at the cost of justice. The courts of law and tribunals exercising judicial functions have to dispense justice. They cannot dispense with justice. If this is how the legislaive framework is and the NCLT being a substitute for both, the Company and the Civil Court, then, all the more it is not possible to agree with Mr.Kadam. 70. What then remains for our consideration is whether the rules as framed are capable of substantial compliance, as alternatively suggested by Mr.Kadam. He would submit that ultimately pronouncement means communication or intimation. Mr.Kadam would submit that if that aspect is omitted from the proceedings before the NCLT, that is at best an irregularity which is curable. Mr.Kadam's arguments once again overlook the fact that the rules do not employ the words pronouncement and/ or communicat....
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....ore that Bench to a convenient date and the adjournment or posting or directions shall be notified on the notice board of the Registry." 72. Therefore, by sub-rule (1) of Rule 89, the Registry is required to prepare and publish on the notice board of the Registry before the closing of working hours on each working day the cause list for the next working day and subject to the directions of the President, listing of cases in the daily cause list shall be in the order of priority, unless otherwise ordered by the concerned Bench. Ultimately, the requirement of this nature and to be followed by a court, particularly a substitute for a Civil and Company Court means that people and litigants should know when orders are to be pronounced in cases which have been already heard. Therefore, the broad heads which have to be enumerated in the daily cause list ensure that litigants, parties and equally the public at large know that the cases have been listed for that purpose and with that object. In cases in which arguments are concluded and judgments are ready for pronouncement, then, the pronouncement has to be done after notifying to the parties in advance the date of suc....
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....to be appended or that every rule demands a strict compliance. We can understand an omission or irregularity not vitiating the proceedings in their entirety. However, we cannot condone something which results in failure or miscarriage of justice. That is how Rule 92 of the NCLT Rules, 2016 requires the Court Master of the Bench to maintain order sheet in every proceedings and shall contain all orders passed by the tribunal from time to time. Rule 93 provides for maintenance of court diary. The parties or legal practitioners are also required to furnish to the Court Master a list of law journals, reports, statutes and other citations, which may be needed for reference or photocopy of full text thereof. Everything has to be specified and stated clearly, as is apparent from the language of these rules, so that the tribunal does not devise a procedure totally unknown to law or acts in an arbitrary manner. To avoid arbitrariness and discrimination in conduct of judicial proceedings that such rules of procedure have been framed. If one totally ignores them, then, there may be failure of justice or if the conduct of judicial proceedings is in tota....
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.... deviation or departure or non-adherence to procedural rules. Ultimately, no general rule can be laid down. However, when Part XIX of the NCLT Rules, 2016 titled as "Disposal of Cases and Pronouncement of Orders" contains Rules 146 to 162 and particularly Rules 150 to 152 specifically on the point of subject of pronouncement, then, they cannot be ignored totally and in all situations, particularly on broad consideration of expediency. The expediency that is demonstrated in the present case is disturbing. If there was a hearing held in the month of August, 2019 and that was the last one, the remainder of the months of August and September were available for the Members of the Bench to prepare and pronounce their order. There was no great hurry in rushing and pronouncing the order when the Member (Judicial) knew that he was due for promotion or that he has been intimated about the promotion and that there was a notification issued promoting him. The stage or the date from issuance of such notification till the date of taking charge is the period utilised in this case to prepare the final judgment or order. However, there was no great urgency ....
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....ed by both members of the concerned bench and pronounced in open court as per the said Rules. g. In light of the infringement of its legal and fundamental rights, the Petitioner has approached this Hon'ble Court seeking exercise of its powers under Article 226 of the constitution of India inter alia based on the facts and legal grounds stated in detail hereinbelow." 77. A perusal of the record of the tribunal also does not reveal that the same was maintained in accordance with the NCLT Rules. There is nothing therein to show that barring the date of filing of the petition/ application, the date of its registration, the date of its copy being served on the other side, the replies and other proceedings being taken on record, there was anything done from 5th November, 2018 to 20th August, 2019 on which a request was made to the tribunal to pronounce the order expeditiously after the conclusion of the arguments. From the above sequence of events, there is nothing by which one can conclude that the tribunal took steps to inform the parties about the date of pronouncement of the order (See File No. CP(IB)-4375/NCLT/ MB/2018). Hence, we find that there is much subs....
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....s may be practicable but not later than thirty days from the final hearing. (2) Every order of the Tribunal shall be in writing and shall be signed and dated by the President or Member or Members constituting the Bench which heard the case and pronounced the order. (3) A certified copy of every order passed by the Tribunal shall be given to the parties. (4) The Tribunal, may transmit order made by it to anycourt for enforcement, on application made by either of the parties to the order or suo motu. (5) Every order or judgment or notice shall bear the sealof the Tribunal." "151. Pronouncement of order by any one member of the Bench.- (1) Any Member of the Bench may pronounce the orderfor and on behalf of the Bench. (2) When an order is pronounced under this rule, theCourt Master shall make a note in the order sheet, that the order of the Bench consisting of President and Members was pronounced in open court on behalf of the Bench." "152. Authorising any member to pronounce order. (1) If the Members of the Bench who heard the case are not readily available or have ceased to be Members of the ....
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....h may pronounce the order for and on behalf of the Bench. By Rule 152 it is permissible for the President to authorise any other Member to pronounce the order if the Members of the bench, who heard the case are not readily available or have ceased to be Members of the tribunal. This can be done after the President is satisfied that the order has been duly prepared and signed by all the Members who heard the case. Thus, as per rules a duly prepared and signed order can be pronounced by another Member who was not part of the Bench which heard the case. We are aware of the fact that there is great inconvenience to litigants and parties before a court of law if judgments are not duly prepared, signed and pronounced before the presiding officers or Members demit office or handover charge on the eve of either transfer or superannuation. The litigants, therefore, should not suffer after rendering full assistance to the Bench to pronounce its final order. The parties have duly discharged their duty of assisting the court either by arguing in-person or through advocates. Thus, after the oral arguments are concluded or written submissions are placed ....
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.... or evidence of such transmission of the order by the Court Master or the entries by the Court Master and we found nothing. In fact, in this case, the records are maintained in a haphazard manner. There is index and there is nothing like required and proper entries by the Court Master or order sheets in the file. The huge pendency of cases or shortage of staff should not mean that litigants have to suffer. If the staff is required to complete the records, then, they must do so so that there is no embarrassment to the Members of the tribunal and undue harassment to the litigants by their inaction or acts of omission and commission. In the present case, when there is absolutely no dispute about the factual aspects and that the arguments of both sides have proceeded on the footing that there is no record of pronouncement, then, all the more we cannot agree with Mr.Kadam that in the present case, there is small or minor deviation from the rules which does not make the impugned order a nullity. 83. In fact, the judicial proceedings, the orders and judgments therein, have a certain sanctity. Inviolability of judicial proceeding is at the root of everythin....
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....be delivered, one of the Judges was transferred to Allahabad. While there he dictated the judgment purporting to do so on behalf of himself and his brother Judge, it was a judgment for and on behalf of the Bench. He signed every page as well as at the end, but did not date it. He then send this to other Judge at Lucknow. He died before the judgment was delivered. Now, the sole Member of the Bench of two Judges purported to deliver the judgment, he signed it and dated it. He placed the date below it. The signature of the Judge who had already expired was appearing on the judgment. The litigants and the public at large was not aware that when the judgment was delivered, one of the Judges of the Bench had already expired. The consequences and repercussions of such judgment were indeed drastic, in that the criminal appeal was dismissed, the conviction and sentence was upheld. The sentence imposed was a death sentence. In these circumstances, the question before the court was whether the delivery of the judgment is a serious act, what are the consequences of non-delivery of judgment or the delivery of the judgment in the manner done ....
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.... inherent in courts to make good inherent defects caused by accidents such as death. As this decision of the Judicial Committee was relied on in the arguments we will quote the passage which is relevant here. It is at page 295 of - 'Firm Gokal Chand v. Firm Nand Ram' AIR 1938 PC 292(A). The facts are not quite the same as here because the judgment was actually delivered in open court and both the judges who constituted the Bench were present and concurred in it. But before it could be signed, one Judge went on leave. The Rules required the judgment to be signed and dated at the time that it was pronounced. Their Lordships said-- "The rule does not say that if its requirements are not complied with the judgment shall be a nullity. So startling a result would need clear and precise words. Indeed the Rule does not even state any definite time in which it is to be fulfilled. The time is left to be defined by what is reasonable. The Rule from its very nature is not intended to affect the rights of parties to a judgment. It is intended to secure certainty in the ascertainment of what the judgment was. It ....
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....ning and the sealing, all the rules designed to secure certainty about its content and matter-can be cured; but not the hard core, namely the formal intimation of the decision and its contents formally declared in a judicial way in open Court. The exact way in which this is done does not matter. In some Courts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving notice to the parties and laying the draft on the table for a given number of days for inspection. (underlining ours) 11. An important point therefore arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. We lay no stress on the mode or manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open Court. But however it is done it must an expression of them ind of the Court at the time of delivery. We say this because that is the first judicial act touching the judgment which the Court performs after the hearing. Everything ....
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....blic policy to leave the door open for an investigation whether a draft sent by a Judge was intended to embody his final and unalterable opinion or was only intended to be a tentative draft sent with an unwritten understanding that he is free to change his mind should fresh light drawn upon him before the delivery of judgment. 13. Views similar to this were expressed by a Full Bench of the Calcutta High Court consisting of nine Judges in the year 1867 in ...Mahomed Akil v. Asadunnissa Bibee, 9 WR 1 (FB) (B). In that case, three of the seven Judges who constituted the Bench handed in signed judgments to the Registrar of the Court. Before the judgment could be delivered, two of them retired and one died. A Full Bench of nine Judges was convened to consider whether the drafts of those three Judges could be accepted as judgments of the Court. Seton-Kerr, J. who had heard the case along with them, said - "Certainly as far as I can recollect, they appeared to have fully made up their minds on a subject which they had very seriously considered, and on which they had abundant opportunities of forming a final determination. I am however not pr....
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....d be handled and dealt with judiciously. A judgment brings quietus or end to the lis. We cannot allow a compromise or surrender of the salutary principles laid down in the above judgment of the Hon'ble Supreme Court. Their applicability does not depend upon the nature of the lis, the hierarchy of courts/ tribunals, the stake involved in the litigation and related issues. The above principles highlight the mode and manner of discharging judicial function and duty, permeating or spreading throughout, from entertainment of the proceedings till their culmination in a final judgment and order. Even the final act has to be performed in a manner consistent with the procedural rules and not abrogating them altogether. At all stages, regard to the underlying guiding rules is necessary, else, exceptions or departures would displace the rules completely. Litigations are frequently used as pressurising, harassing, embarrassing tactics by unscrupulous parties and they will play with the whole system if consistency is not maintained. That is not to say that small or minor infraction or deviation will necessarily vitiate the whole process. Everything depends up....
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.... ensure for the accused a full and fair trial in accordance with the principles of natural justice. If there be substantial compliance with the requirements of law, a mere procedural irregularity would not vitiate the trial unless the same results in miscarriage of justice. In all procedural laws certain things are vital. Disregard of the provisions in respect of them would prove fatal to the trial and would invalidate the conviction. There are, however, other requirements which are not so vital. Non-compliance with them would amount to an irregularity which would be curable unless it has resulted in a failure of justice. 9. Question then arises as to whether the failure of a trial judge to sign the judgment at the time of its pronouncement because of its having not been transcribed is a procedural irregularity curable under Section 537 of the Code. In this respect we find that the question as to what is the effect of a judge not signing the judgment at the time it was pronounced was considered by the Judicial Committee in the case of Firm Gokal Chand v. Firm Nand Ram, AIR 1938 PC 292. The appeal in that case in the Lahore High Court was heard by a Division Bench consistin....
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..... The Judicial Committee came to the conclusion that the defect mentioned above was an irregularity not affecting the merits of the case or the jurisdiction of the court and was no ground for setting aside the decree. 10. The above decision was a referred to by this Court in the case of Surendra Singh v. State of Uttar Pradesh, 1954 SCR 330 = (AIR 1954 SC 194) and it was observed that Section 537 of the Code of Criminal Procedure does as much the same thing on the criminal side as Sections 99 and 108 on the Civil. This Court in that decision dealt with a criminal case wherein death sentence had been awarded. The case in the High Court was heard by a Bench of two judges. The judgment was signed by both of them but it was delivered in Court by one of them after the death of the other. It was held that there was no valid judgment and the case should be reheard. Arriving at that conclusion, this Court took the view that a judgment is the final decision of the court intimated to the parties and the world at large by formal "pronouncement" or "delivery" in open court and until a judgment is delivered, the judges have a right to change their mind. In the course of discussion Bose....
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....f there is substantial compliance with the requirements of law, a mere procedural irregularity would not vitiate the trial unless the same results in miscarriage of justice. 88. In this case [Iqbal Ismail Sodawala (supra)], there was indeed a procedural irregularity not resulting in any miscarriage of justice. There, the judge dictated the judgment and order of conviction and sentence, but that was not transcribed for more than nine months. However, it had been pronounced. If the conclusion was made known by a pronouncement in open court or otherwise required by the rules, then, a mere belated transcription and handing over of copies to the accused would not vitiate the trial and it could never be held to be a miscarriage of justice. The failure of justice results when there is absolutely no adherence to the rules of procedure. 89. In the case of State of Uttar Pradesh (supra), the Hon'ble Supreme Court in paras 4 to 7 and 14, 15 and 16 held as under:- "4. In exercise of powers conferred by clause 8 of the Statutory Order the Government had set up the Tribunal. Clause 9 of the Statutory Order provides for the procedure to be followed by the Tr....
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....r clause 24 to move the Tribunal for correction of errors. It is for this reason that clause 9(7) provides that the decision shall be dated and signed at the time of pronouncing it in open court. This signing and dating of the award after its pronouncement in open court makes it possible to see whether the terms of clauses 18 and 24(2) have been complied with in any case. 15. ..... Now under section 10 of the Act of 1950, an appeal is competent if preferred within thirty days from the date of the publication of the award where such publication is provided for by the law under which the award is made, or from the date of the making of the award where there is no provision for such publication. Now the U.P.Act or the Statutory Order does not provide for any publication of an award. Therefore an appeal from the Tribunal set up under the Statutory Order has to be filed within thirty days from the making of the award. Hence again it is essential that the date of the making of the award shall be known to the parties to enable them to avail themselves of the right of appeal. This cannot be known unless the judgment is pronounced in open court for the....
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....the requirement of pronouncement of the judgment is not complied with, then, we should send the matter back in order to meet with that requirement or to enable the pronouncement of a judgment and order, which is duly prepared and dated by the Members of the tribunal. According to him, that would subserve the ends of justice. 92. There is a fallacy in this argument as it overlooks the object and purpose of pronouncing a judgment. Before us, the issue is not of not following the rules of procedure in every detail nor is the manner of pronouncement challenged before us. We do not think that we can cure the basic defect in this manner. This would mean that the requirement of pronouncing a judgment need not be adhered to at all. Secondly, it makes mockery of judicial proceedings. Thirdly and importantly, the arguments or the attempt made by Mr.Kadam, if accepted, would result in paper compliance with the requirement of pronouncement of the judgment and order by the tribunal. We cannot take such a casual and light hearted approach. We cannot condone the defect in this manner. We do not think that the defect in this case is curable ....
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.... order can be altered. While altering such an order, the authority does not become functus officio. 95. To our mind, these observations have no bearing to the facts and circumstances brought before us. It was in dealing with an argument that the authority was functus officio after the order was passed that the relied upon observations have been made. 96. Then substantial reliance is placed on the judgment of the learned Single Judge of this court in the case of Jer Rutton Kavasmaneck and Anr. vs. Gharda Chemicals Ltd. and Ors. . That is also misplaced, inasmuch as, the issue arose in somewhat different context. There, after having participated in and argued the case on merits, a contention, inter alia, raised was that the Company Law Board Regulations, 1991 were not adhered to. The argument was that the impugned order passed by the Company Law Board had not been pronounced. The respondent had received the impugned order and took steps to implement it even before the appellant learnt and/ or received the order. It was submitted that the order that is not pronounced is not an order in the eyes of law. The answer to that argument w....
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....or more than six months. The functioning of the tribunal was seriously hampered. There was no proper business discharged and adjournments were granted as a matter of course. The Hon'ble Supreme Court noted this complaint after it was highlighted in two or three leading newspapers. Thereafter, it went into the question of legality and validity of the very provision conferring a power to set up a tribunal. The Constitution of India was referred to in great details. In fact, when in the Constitution itself Part XIVA had been inserted by the Constitution (Forth-second Amendment) Act, 1976 with effect from 3rd January, 1977, its aim was speedy and expeditious justice. Article 323A is titled as "Administrative tribunals", whereas, Article 323B enables setting up of tribunals for other matters. The appropriate legislature may, by law, provide for the adjudication or trial by tribunals of any disputes, complaints or offences with respect to all or any of the matters specified in clause (2) with respect to which such legislature has power to make laws. The present tribunal is traceable to the power conferred in the appropriate legislatur....
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....to discharge judicial or quasi-judicial powers. So they must have judicial approach and also knowledge and expertise in that particular branch of constitutional, administrative and tax laws. The legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficacy and effectiveness of the judicial adjudication. It is, therefore, necessary that those who adjudicate upon these matters should have legal expertise, judicial experience and modicum of legal training as on many an occasion different and complex questions of law which baffle the minds of even trained judges in the High Court and Supreme Court would arise for discussion and decision. 68. In Union of India v. Sankal Chand Himatlal Sheth, (1978) 1 SCR 423 at 442 : (AIR 1977 SC 2328 at p.2338), this Court at p.463 (of SCR) : (at p.2355 of AIR) laid emphasis that, "independence of the judiciary is a fighting faith of our Constitution. Fearless justice is the cardinal creed of our founding document. It is indeed a part of our ancient tradition which has produced great judges in the past. In England too, judicial independence i....
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....in judicial temper in the functioning of the Tribunal". In Rajendra Singh Yadav v. State of U.P., (1990) 2 SCC 763, it was further reiterated that the Services Tribunal mostly consist of Administrative Officers and the judicial element in the manning part of the Tribunal is very small. The disputes require judicial handling and the adjudication being essentially judicial in character it is necessary that adequate number of judges of the appropriate level should man the Services Tribunals. This would create appropriate temper and generate the atmosphere suitable in an adjudicatory Tribunal and the institution as well would command the requisite confidence of the disputants. In Shri Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428 : (1992 AIR SCW 1094), this Court emphasised that, "Needless to say that the independence, efficiency and integrity of the judiciary can only be maintained by selecting the best persons in accordance with the procedure provided under the Constitution. The objectives enshrined in the Constitution cannot be achieved unless the functionaries accountable for making appointments act with meticulous care and utmost responsibility. 70. In a democrac....
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....e executive and confided to be exercised wisely. When a candidate was found qualified and eligible and was accordingly appointed by the executive to hold an office as a Member or Vice-President or President of a Tribunal, we cannot sit over the choice of the selection, but be left to the executive to select the personnel as per law or procedure in this behalf. In Srikumar Prasad's case (AIR 1992 SC 1213), K.N. Srivastava, M.J.S., Legal Remembrance, Secretary to Law and Justice, Govt. of Mizoram did not possess the requisite qualifications for appointment as a Judge of the High Court prescribed under Art.217 of the Constitution, namely, that he was not a District Judge for 10 years in State Higher Judicial Service, which is a mandatory requirement for a valid appointment. Therefore, this Court declared that he was not qualified to be appointed as a Judge of the High Court and quashed his appointment accordingly. The facts therein are clearly glaring and so the ratio is distinguishable. 76. Before parting with the case it is necessary to express our anguish over the ineffectivity of the alternative mechanism devised for judicial reviews. The Judicial review and remedy are fu....
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.... the concerned Government department. In other words, if the functioning of the tribunal is monitored and supervised by a particular department of the Central Government, then, that departmental staff is appointed to assist the tribunal. Effective work cannot be done unless the Registrar, Superintendent and other staff members are drawn from the courts already functioning and discharging judicial functions. The trained staff of such courts can be deployed as a temporary measure and thereafter, by a proper selection process, the staff to assist and support the Judicial Members and the President should be selected and appointed. The staff ought to be drawn from legal field. If any administrative staff or departmental member is appointed or deputed to work in the tribunals, he may not have any experience of working in a court. We have have noticed in this case that the NCLT lacks such a staff. It is on account of the staff members that in this case both the judicial Members have been embarrassed. The litigants suffer by a requirement to hold the proceedings afresh. 101. As a result of the above discussion, we are of the firm view that....