TaxTMI 
TaxTMI 
2020 (9) TMI 130
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.... instance of the original writ applicant of a writ application and is directed against the order passed by a learned Single Judge of this Court dated 1st August 2020 in the Special Civil Application No.9118 of 2020, by which the learned Single Judge rejected the writ application with costs of Rs. 10,000/-. 2. The brief facts of this litigation may be stated thus: 2.1 The appellant herein (original writ applicant) preferred the Special Civil Application No.9118 of 2020 seeking the following reliefs: "(A) Be pleased to allow this petition. (B) Be pleased to issue writ in the nature of mandamus or any other writ /order/direction to National Company Law Tribunal at Ahmedabad, to conduct the proceedings in all applications in CP(IB) no.14 of 2018 by physical hearing as and when the same is permitted by the National Company Law Tribunal, Delhi Principal Bench, State of Gujarat and other authorities in light of COVID-19 pandemic. (C) Be pleased to issue writ in the nature of mandamus or any other writ /order /direction to quash and set aside the order dated 21.07.2020 passed by the National Company Law Appellate Tribunal at New Delhi in CA (AT) (I) No.576 ....
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.... "After bearing learned counsel for the parties, we find that on 16th March, 2020 the insolvency matter viz. LA. 476 of 2018 in CP (I.B.) No. 14/NCLT/AHM/2018 had been adjourned by the Adjudicating Authority (National Company Law Tribunal), Ahmedabad Bench, Court 1 to 21sl April, 2020 in view of the advisory issued by the Central Government due to outbreak of COVID-19 which was declared pandemic leading to imposition of lockdown. It is stated at the Bar that the matter is now listed for 27"\ July, 2020 for bearing through virtual mode. 2. In view of the events that have intervened bringing the Wheels of justice to a halt, we direct the Adjudicating Authority to hear the matter expeditiously alongwith all IAs according priority to the matter as the same pertains to insolvency resolution which process was commenced on 20th February, 2018. 3. We hope and expect that the Adjudicating Authority would hear the matter with utmost expedition and dispose of the same without any further loss of time. This direction for expeditious disposal shall be notwithstanding the mode of hearing which shall be decided by the Adjudicating Authority. The appeal is accordingly dispose....
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.... Press Note released by the High Court dated 27th July 2020, whereby all the Courts of State of Gujarat were asked not to conduct physical hearing. 12. Mr. Desai would submit that the situation prevailing, as on date, in the NCLT at Ahmedabad is quite precarious for many lawyers. Mr. Desai pointed out that the Court No.2 has been very consisting with the mode of hearing. The Court No.2 has been given virtual hearing consistently to all the learned advocates appearing before it. However, the Court No.1 has adopted a very inconsistent practice as regards the mode of hearing. It is pointed out to us that if a particular lawyer appears physically before the Tribunal, then the hearing is conducted in physical form though the lawyer for the other side may not be present as he would be expecting the Court No.1 to conduct virtual hearing. Mr. Desai would submit that if the Court No.1 of the Tribunal wants to go for physical hearing, then the consent of all the lawyers appearing in the particular litigation should be first obtained, and only thereafter, the physical hearing should be conducted. If any lawyer has any difficulty with regard to physical hearing, then the Court No.1 should a....
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.... and part physical hearing creates serious difficulties enumerated as under: * The counsel / practitioner who appears on virtual platform is unable to comprehend the submission of the counsel / practitioner appearing physically. * Furthermore, fate of counsel / practitioner appearing virtually is in the hands of court master / operator who can logout or mute the counsel / practitioner appearing virtually at any point of time even while their matter is on. * Furthermore, such a hearing wherein one party is not able to comprehend the submission of other side is completely unfair, arbitrary and violative of principles of natural justice. It is submitted that such hearing cannot stand the of fairness as enshrined under test of Article 14 of the Constitution of India. * On most occasion, there is disruption in voice or video. Hence, the counsel / practitioner appearing, virtually cannot get meaning and effective hearing. Whereas the counsel / practitioner appearing physically can literally hijack the proceedings before the ld. Tribunal. * It is submitted that in the case of the appellant itself, their advocate on record was present physically....
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....n repeated complaints from most of the practitioners. Under the circumstances, the association had made an oral representation before the Hon'ble Members to switch the platform for virtual hearing. During this meeting, we were made to understand that this Hon'ble Tribunal is actively considering the said request of switching a platform. However, till the Hon'ble Tribunal is able to switch the platform for virtual hearing, in order to ensure that the practitioner practicing before Hon'ble National Company Law Tribunal, Ahmedabad may not face any further problem a meeting of managing committee was held on 28.07.2020 through Zoom platform and it was decided to make following representations before the Hon'ble Tribunal: 1. A request for change of platform for virtual hearing is emphatically reiterated as the present platform in respect of the virtual hearing is completely unworkable and unstable. There are time when the voice breaks down, connection is very poor and image disappears. More serious problems is that it is very difficult to gain "entry" in the virtual room. One has to try, sometimes, scores of times to gain entry to find, very soon that he is "th....
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....ring the serious health hazards, for the time being, the courts should not be hold any physical hearings at all. 6. In case where any of the practitioner has reservation for physical appearance the matter shall be heard virtually, or it may be adjourned. 7. There shall not be part physical and part virtual hearing unless a proper system is installed wherein a practitioner appearing virtually can see and hear the practitioner appearing physically so as to comprehend submission of otherside. Until a system is established there's bound to be a serious prejudice to the persons who argue by virtual platform because firstly they will not be able to hear the arguments which are being made on a physical basis and secondly they would not be in a position to answer the issues that are being raised against them; 8. Lastly, the matter may not be reserved for order and viceversa by calling upon practitioners to give written submission and without conducting virtual hearing unless all the practitioners are agreeable for waiving their right of hearing and are willing to conclude the matter by way of written submission. (A copy of resolution passed by managing c....
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.... mode of virtual hearing. 21. In such circumstances referred to above, Mr. Pahwa, the learned senior counsel appearing for the respondent No.1 prays that the impugned order passed by the learned Single Judge may not be disturbed and the appeal may be dismissed. 22. We also heard Mr. Sandip Singhi, the learned counsel appearing for the respondents Nos.2 to 4, Mr. Alok Dhir, the learned senior counsel appearing with Shri Dhruvil Merchant, the learned advocate for the respondent No.8, Mr. Alok Dhir, the learned senior counsel appearing with Mr. Parth Shah for the respondent No.9, Mr. Masoom K. Shah, the learned counsel appearing for the respondent No.10 and Mr. Maulik Nanavaty, the learned counsel appearing for the respondent No.12. Mr. Dhir, Mr. Masoom Shah and Mr. Maulik Nanavaty, in one voice, submitted that the practice adopted by the Court No.1 in the NCLT, as on date, is very inconsistent and creating lot of difficulties for the lawyers. All the learned counsel would submit that having regard to the current situation of COVID-19 pandemic, it is not advisable to go for physical hearing and the Court No.1 of the Tribunal should adopt the mode of virtual hearing. All the lear....
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..... The Supreme Court in L. Chandra Kumar vs. Union of India reported in (1997) 3 SCC 261 observed thus: "79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided." 26. We are of the view that it would have been appropriate in the larger interest of justice for the learned Single Judge to dispose of the petition by issuing appropriate directions in exercise of power under Article 227 of the Constitution rather than outright rejecting the writ application and that too with costs of Rs. 10,000/-. The materials on record do indicate that there is a acute problem faced by many lawyers in the NCLT at Ahmedabad as regards the mode and manner of the functioning of the Courts. It goes without saying that the procedure that may be followed must be consistent, and at the same time, should be reasonable so as not to put anyone in difficult....
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....directions to the NCLT at Ahmedabad in exercise of our superintending power under Article 227 of the Constitution of India: [1] We direct the National Company Law Tribunal at Ahmedabad to take up the representation dated 29th July 2020 for consideration made by the Association with regard to streamlining virtual hearing before the Tribunal. We direct the Tribunal to give a personal hearing to Shri Mihir Thakore, the learned senior counsel, who, at present, is the President of the Ahmedabad National Company Law Practitioners Association and discuss various issues raised in the representation and try to resolve the controversy. In other words, we request the NCLT, Ahmedabad to frame standard operating procedure (SOP) in consultation with the Bar for virtual functioning of the Tribunal in tune with the circulars issued by this Court time to time preferably within one week from the date of receipt of the order. Let this exercise be undertaken and completed within a period of one week from the date of receipt of the writ of this order. [2] We make it clear that if any matter is to be heard by adopting the mode of physical hearing, then the consent of all the learned co....