TaxTMI 
TaxTMI 
2021 (11) TMI 800
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....ermitted. Application stands disposed of. W.P.(C) 1810/2020 & CM APPL. Nos.6302/2020, 20845/2020 & 21171/2021 1. Present writ petition has been filed seeking issuance of a writ of quo warranto directing Respondent No.2 to set out the Authority under which the said Respondent is holding office as Technical Member of National Company Law Appellate Tribunal (hereinafter referred to as 'NCLAT'). 2. Learned counsel appearing on behalf of the Petitioner submits that the appointment of Respondent No.2 is in the teeth of the amended provision of Section 411(3) of the Companies Act, 2013 (hereinafter referred to as the 'Act'). The original provisions of Section 411(3) of the Act provided for qualification for appointment of Technical Members of NCLAT which included a person of proven ability, integrity and standing having special knowledge and experience of not less than 25 years, in law, Industrial Finance, Industrial Management, etc. Challenge was laid to various provisions of the Act including in respect of qualification of Technical Members of NCLAT under Section 411(3) as well as composition of Selection Committees, which was allowed by the Supreme Court in the case of Madras Bar A....
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.... aside. 4. Learned Additional Solicitor General appearing on behalf of Respondent No.1 submits that appointment of Respondent No.2, as Technical Member of NCLAT, is in accordance with law and in consonance with the judgment of the Hon'ble Supreme Court in Madras Bar Association (supra). On 21.08.2017, Respondent No.1 had issued fresh advertisement in accordance with the qualifications prescribed under Rules 2017. However, in view of the constitutional validity of the Rules being challenged before the Hon'ble Supreme Court in various petitions, process of selection was kept on hold. Meanwhile, in order to comply with the judgment of the Hon'ble Supreme Court in Madras Bar Association (supra), with respect to qualifications of Members of NCLT and NCLAT and other allied issues, amendment to the Companies Act was notified on 09.02.2018 wherein amended qualifications under Section 411(3) for a Technical Member, NCLAT excluded the experience 'in law'. 5. It is further submitted by the learned Additional Solicitor General that in W.P.(C) 279/2017, titled Kudrat Sandhu vs. UOI and Anr., certain suggestions were rendered by the Hon'ble Supreme Court and interim direction was passed, which....
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....ents Committee of the Cabinet (ACC) has approved the proposal for appointment against 02 posts of Technical Member in the National Company Law Appellate Tribunal (NCLAT). 24. That ministry of corporate affairs issued advertisement notification dated 10.05.2019 for filling of post of 4 Technical and 3 Judicial Members in NCLAT. Since, by that time, the Tribunal, Appellate Tribunal and Other Authorities (Qualification, experience and other conditions of service of members) Rules, 2017 were not struck down by the court, ministry proceeded with the selection process following the directions issued in the matter of WP (C) 279 of 2017 (Kudrat Sandhu vs UOI) and related petitions. As per supreme court order dated 09.02.2018 in WP (C) 279 of 2017, an interim Search-cum-Selection Committee was constituted under the chairmanship of Hon'ble Judge of Supreme court to recommend names for the appointment of Judicial and Technical Members in NCLAT. 25. That on the basis of recommendations of the aforesaid Search-cum-Selection Committee a panel of candidates was submitted for consideration of the ACC, and ACC finally approved the appointments of 3 Judicial and 3 Technical Members for appointme....
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....et (ACC) for its approval. Names of 03 Judicial and 03 Technical Members were approved by the ACC on 15.10.2019. The name of Respondent No.2 herein against the remaining one vacancy of Technical Member, NCLAT was approved by the ACC on 20.01.2020. Learned Additional Solicitor General has brought out that Respondent No.2 has the necessary experience and qualification and has been appointed in accordance with law. The Search-cum-Selection Committee has examined the eligibility conditions as well as the merits of the candidates and recommended the panel. There is no allegation of bias or malafides against the Selection Committee. It is a settled law that it is the domain of the Selection Committees to make selections and the Courts, while sitting in a judicial review, cannot substitute the decision of the Selection Committees, which are expert bodies unless there are allegations of bias or malafides or there is a challenge to the composition of the Committee, which is admittedly not the case here. Petitioner has itself averred in the writ petition that Respondent No.2 has been serving as a Judicial Member of the District and State Consumer Forums and has been a Judicial Member of the ....
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....ramanian. Although the name of the Respondent is not a part of investigation conducted by the SFIO, the shareholders of the Respondent have been investigated. Thus, it can be presumed that the Respondent Company and its Director are also a shadow of Mr. S. Subramanian and his entities. 23. It is to be added here that the Times of India, Chennai in its publication dated 20.07.2018 has published on article under the head "ED probing 49 shell companies floated by Subhiksha founder" has highlighted that the Enforcement Directorate (ED) is investigating 49 shell companies floated by Subhiksha Founder R. Subramanin through which Rs. 800 crore is believed to have been laundered. Subramanian, who was arrested and remanded in custody on February 27, is yet to come out with any explanation on how the amount was utilized. So far, the ED has been able to attach properties worth only Rs. 4.5 crore which is less 200 than 1% of the money involved in the offence. Based on these details, the Madras High Court, on July 11, denied bail to Subramanian for the second time. The Court also relied on the ED's submission that since Subramanian was a practicing advocate before various Company Law Tribunal....