TaxTMI 
TaxTMI 
2022 (6) TMI 621
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....NI, HARSH VARDHAN LODHA COMMITTEE OF ADMINISTRATORS PENDENTE LITE OF THE ESTATE OF LATE PRIYAMVADA DEVI BIRLA , THE PUNJAB PRODUCE VERSUS LANESEDA AGENTS LIMITED, VINDHYA TELELINKS LIMITED, SHRI. RAKESH PURI, DR. ARAVIND SRINIVASAN, SHRI. SHIV DAYAL KAPUR, SHRI. KRISHNA DAMANI, HARSH VARDHAN LODHA [Justice M. Venugopal] Member (Judicial) And [Dr. Ashok Kumar Mishra] Member (Technical) For the Appellants : Mr. Joy Saha, Senior Advocate, Mr. Avishek Guha, Mr. Rajat Gupta, Mr. Ishaan Saha, Mr. Chitresh Saroigi, Advocates for Appellant No. 1 Mr. Jishnu Saha, Senior Advocate, Mr. Soumya Dutta, Ms. Somali Mukhopadhyay, Mr. Ritoban Sarkar, Advocates for Appellant No. 2 For the Respondents : Mr. Arun Kathpalia, Senior Advocate, Mr. SaubhikChowdhury, Advocate for R1 Mr. P.S. Raman, Senior Advocate for R2, Ms. Maithreyi Sharma, Lakshana Viravalli, Mr. Madhurpeetha Elano, Mr. Saubhik Chowdhury, Advocates for R-2 Mr. Ramji Srinivasan, Senior Advocate, Mr. Saubhik Chowdhury for R-3 Mr. Ranjan Bachawat, Senior Advocate, Mr. Sayan Roy Chowdhury, Mr. Satyaki Mukherjee, Mr. Paritosh Sinha, Mr. Saubhik Chowdhury, Advocates for R4 Ms. Manju Bhuteria, Mr. Saubhik Chowdhury, Advocates for R5 Mr. Ab....
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....d by Insilco Agents Limited & Ors. in C.P. No. 112/KB/2021, by August Agents Limited & Ors. in C.P. No. 113/KB/2021 and Laneseda Agents Limited in C.P. No. 114/KB/2021 in their alleged capacity as the Significant Beneficial Owners of the shares of the Respondent No.1 Company in each of the CPs, is at all maintainable before this Tribunal, in view of the fact that there is no registered shareholding of any of the Petitioner Companies in Respondent No.1 Company" and the above was required to be communicated to the `Registrar', NCLT, New Delhi, for further action. 6. According to the Appellants, the following points are required to be added in addition to and modification of the point of difference earlier framed by the Hon'ble Members of the Special Bench, `National Company Law Tribunal' Kolkata, dated 11.02.2022 and they run to the following effect: (A) "Whether the Petition filed by Insilco Agents Limited & Ors. in C.P. No. 112/KB/2021, by August Agents Limited & Ors.in C.P.No. 113/KB/2021 and Laneseda Agents Limited in C.P.No. 114/KB/2021 in their alleged capacity as the Significant Beneficial Owners of the shares of the Respondent No.1 Company in each of the CPs, is at all ma....
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..../2021, CA No.82/KB/2021, CA No.83/KB/2021, CA No.84/KB/2021, CA No.85/KB/2021, CA No.86/KB/2021, CA No.87/KB/2021, CA No.88/KB/2021, CA No.90/KB/2021, CA No.91/KB/2021, CA No.92/KB/2021 and CA No.93/KB/2021." and resultantly, dismissed the CP No.112/KB/2021, CP No.113/KB/2021 and CP No.114/KB/2021. 9. However, the Hon'ble Member (Technical) of `National Company Law Tribunal', Kolkata Bench, on 02.07.2021, opined a prima facie view that `the present `Petition' is very much maintainable, because for granting injunction, the Courts or for that matter this `Tribunal' cannot strictly go by the `Legislated Law', it has the discretion in the specific circumstances, and those circumstances do exist in the present case because there is a long history of litigation between the parties and there are orders subsisting and binding on this Tribunal. Unless and until the whole controversy between the `Member' vs. `Significant Beneficial Owner', which for the present is a grey area and does not have so many binding judicial precedents, views and authorities of the higher courts clinching the issue, is settled in the final hearing of these petitions, the injunction Orders sought by the petitioner....
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....Appellants' and enabling the `Respondents' to continue to take advantage of the `difference in opinion' expressed by the `Tribunal', Kolkata Bench, in its judgment and order dated 02.07.2021. First Appellant's Submissions: 12. According to the Learned Counsel for the 1st Appellant, the formulation of question made by the Hon'ble Members of the `Tribunal' dated 11.02.2022 is a `Judicial Order' and as per Section 421(1) of the Companies Act, 2013, `any person' aggrieved by the order of the Tribunal may prefer an Appeal to the `Appellate Tribunal'. Furthermore, it is the stand of the 1st Appellant before this `Tribunal' that the word occurring in Section 421(1) of the Companies Act, 2013, `an order' includes `any order' and, as such, the instant `Appeals' are maintainable `Ex facie', before this `Tribunal'. 13. According to the Learned Counsel for the 1st Appellant, the 1st Appellant is denied of his reasonable and legitimate right to ventilate his grievance in an effective and efficacious manner because of the fact that the point of reference made by the Hon'ble Members dated 11.02.2022 is in a limited and restricted fashion. 14. The Learned Counsel for the 1st Appellant refers t....
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....tone' incapable of either `rectification' or `modification', although such `orders' may be `without jurisdiction', factually `incorrect' or `legally' `an inform one'. 17. The Learned Counsel for the 1st Appellant adverts to the `Order' of this `Tribunal' dated 20.11.2017 in Pankaj Khandelia & Another V Khandelia Oi and General Mills Private Limited & Ors. vide Company Appeal (AT) No. 271 of 2017 and Company Appeal (AT) No. 385 of 2017, reported in (2017) SCC Online NCLAT 593, whereby and whereunder at paragraphs 10 to 15, it is observed as under: 10.``Section 419 of the Companies Act, 2013 deals with the 'Benches of the Tribunal'. Sub-Section (5) therein stipulates the manner in which the case is to be decided in case of difference of opinion on any point or points, as quoted below: "419. Benches of Tribunal __ (1) ..... (5) If the Members of a Bench differ in opinion on any point or points, it shall be decided according to the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the President for hearing on such point or points by one or more of the ot....
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....d down in the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice, and, subject to the other provisions of this Act [or of the Insolvency and Bankruptcy Code, 2016] and of any rules made thereunder, the Tribunal and the Appellate Tribunal shall have power to regulate their own procedure." .... 14. The basic principle of Justice Delivery System is that a Court or a Tribunal, while passing an order is not only required to give reasonable opportunity of being heard to the parties but is also required to give good reasons based on record/evidence. It is also required to show that the order is passed after being satisfied itself on issues raised by the parties. 15. In Indian Judiciary, Justice Delivery System including provisions of Companies Act, 2013, the Tribunal is required to give hearing in an open Court. Once such hearing is given in the open Court, the Court or the Tribunal, while passing an order is also required to pronounce order in the open Court." 18. The Learned Counsel for the 1st Appellant contends that the `Reference' must include `All Points of Differences' and it cannot be a `selective one'. In fact, it is submitted....
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....ircumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. 20. Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Lebura (1855(2) Macq. page 8, Lord Cranworth defined it as 'universal justice'. In James Dunber Smith v. Her Majesty the Queen (1877-78 (3) AC, p 623) Sir Robort P. Collier, speaking for the judicial committee of Privy council, used the phrase 'the requirements of substantial justice', while in Arthur John Specman v. Plumstead District Board of Works (1884-85, AC P 240), Earl of Selbourne, S.C. preferred the phrase 'the substantial requirement of justice'. In Vionet v. Barrett (1885(55) LJRD P 41)....
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....ntries, the form 'audietur at altera pars' is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' (See Bosewell's case (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it is now expressed, 'justice should not only be done but should manifestly be seen to be done'. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon (sic open). All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated." 21. The Learned Counsel for the 1st Appellant cites the decision of the Hon'ble Supreme Court in Shankarlal Aggarwal and Ors. V Shankarlal Poddar and Ors., reported in AIR (1965) Supreme Court at Page 507, wherein at paragraphs 11 to 13, it is ob....
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....ied in Section 104 or 0. 43. r. I. if therefore the contention of the respondent were accepted it would mean that in the case of orders passed by the District Courts appeals would lie only against what would be decrees under the Code as well as appealable orders under Section 104 and 0.43. r.1 and very few of the orders passed in the Courts of the winding up would fall within these categories. On the other hand, the expression "judgment" used in cl. I 5 is wider. The learned judge pointed out that the position would therefore be that a decision rendered or an order passed by a District Court would not be appealable because the conditions laid down by the Civil Procedure Code were not satisfied, yet an exactly identical order or decision by the judge of the High Court would be appealable because it might constitute a judgment within cl.15. The learned judge therefore rejected a construction which would have meant that the same orders passed by District Courts and by a Single judge of a High Court would be subject to different rules as to appealability. The learned judge observed that the right of appeal was conferred by the 1st limb of Section 202 and that the second limb merely dea....
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....in accordance with Section 104. That section after enumerating certain orders which are made appealable, contains a residuary clause (i) conferring a right of appeal in respect of "any order made under rules from which an appeal is expressly allowed by rules"-and the rule referred to is 0. 43. r. 1. Now under s. 122 of the Code each of the High Courts is vested with power "to make rules, to annul, alter or add to all of any of the rules in the 1st Schedule". In exercise of this power High Courts have in respect of the Civil Courts subject to their appellate jurisdiction made alterations and additions in the rules including those in 0. 4 3. r. 1 . either extending or restricting the right of appeal conferred by the Code as originally enacted. The question that arises on this state of circumstances is whether the legislature, when it enacted Section 202 of the Companies Act, intended that the right of appeal should vary from State to State depending on the particular rule in force in that State by reason of the exercise by the High Court of its power under Section 122, Civil Procedure Code. 13. The anomaly created by the construction urged by learned Counsel for the appellant does ....
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....V Narsingh Shah (2021) SCC Online Del 3889, wherein at paragraphs 9 to 14, it is observed as under: "9. That "judgment" and "order" do not mean the same thing is obvious from the fact that the CPC itself defines them separately. "Judgment" has been defined under Section 2(9) of CPC as below: " "judgment" means the statement given by the Judge of the grounds of a decree or order." while an "Order" has been defined under Section 2(14) of CPC as under: - " "order" means the formal expression of any decision of a Civil Court which is not a decree." 10. It is, therefore, clear that an "order" is something that does not result in a decree or, therefore, a final conclusion of a matter, though a "judgment" may include an "order". The term "judgment" indicates a judicial decision given on the merits of the disputes brought before the Court. It determines the rights of the parties finally. In contrast, an "order" may not be so but could be an interlocutory one, if it does not determine or decide the rights of the parties once and for all. Thus, there are, broadly speaking, two kinds of "orders", one, that is in the nature of a final order and the other not determining the main issue....
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....e Supreme Court also discussed "intermediary" or "interlocutory" judgment and order, again in order to answer whether a Letters Patent Appeal was maintainable. Depending on the effect of the decision taken by the trial judge, the court held that if such an order vitally affected a valuable right of the defendant, "it would be treated as a judgment", such as, where leave to defend is declined. However, where the order, though affecting the plaintiff adversely, does not cause him direct or immediate prejudice, but only remote prejudice, or damage was of a minimal nature as his rights to prove his case and show the defence to be false still remained, the order would not partake of the characteristics of a "judgment". 13. It was further observed that not every "interlocutory order" can be regarded as a "judgment", as there were many orders that were routine in nature, such as, condonation of delay in filing the documents, orders refusing adjournment, orders refusing to summon additional witness, etc., which may involve exercise of jurisdiction in respect of a procedural matter against one party or the other. 14. On the other hand, "interlocutory orders" which would have the effect ....
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....cter of finality so as to be judgments within the meaning of clause 15 of the letters patent and hence, appealable to a larger bench. (Para 78) There is also no force in the contention that while Order 43 makes provision for appeal from one court to another, it is not intended to apply to an appeal from one Judge of the High Court to a Bench of the same Court. If Order 43 Rule 1 were to apply to orders passed by the Single Judge (trial Judge), the order would be one passed by only one Judge of the High Court and, therefore, in the context of the original jurisdiction exercised by a Single Judge of the High Court, the appellate jurisdiction would lie with the Division Bench as contemplated by the letters patent and the Rules framed by the High Court. (Paras 64 and 65) The scope of Sections 96 to 100 CPC is quite different from that of Section 104 which is couched in very general terms and cannot be limited to appeals against orders passed by the courts contemplated in Section 96 to 100. Moreover, Section 104 does not deal with appeal against a decree at all but provides a forum for appeal against orders under Order 43, Rule 1 which are mainly orders of a final or quasi-final....
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....t be deemed to be `an Order'. 28. Yet another argument advanced on behalf of the 1st Appellant is that the `Tribunal' considered `impugned order' dated 11.02.2022 in CP Nos. 112, 113 and 114/KB of 2021 (formulation of `point of difference') to be `an Order', it was duly communicated to the parties in accordance with Section 420 (3) of the Companies Act, 2013. 29. The Learned Counsel for the 1st Appellant submits that even pending `Adjudication' on issues of `Maintainability' and `interim relief' can be granted, as per the `settled proposition of law' and the `contra plea' that there can be no question of `granting interim relief' before an `Adjudication of an issue', whether or not the `Petitions' are maintainable is an erroneous one. 30. The Learned Counsel for the 1st Appellant cites the decision of the Hon'ble Supreme Court in the matter of Tayyabhai M. Bagasarwalla and Ors. V Hind Rubber Industries Pvt. Ltd., and Ors., reported in AIR 1997 SC 1240, wherein at paragraphs 15 and 16, it is observed as under: 15.`` The next thing to be noticed is that certain interim orders were asked for and were granted by the Civil Court during this period. Would it be right to say that vio....
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....aised to the jurisdiction of the court at the hearing of an application for grant of, or for vacating, interim relief, the court should determine that issue in the first instance as a preliminary issue before granting or setting aside the relief already granted. An application raising objection to the jurisdiction to the court is directed to be heard with all expedition. Sub-rule (2), however, says that the command in sub-rule (1) does not preclude the court from granting such interim relief as it may consider necessary pending the decision on the question of jurisdiction. In our opinion, the provision merely states the obvious. It makes explicit what is implicit in law. Just because an objection to the jurisdiction is raised, the court does not become helpless forthwith - nor does it become incompetent to grant the interim relief. It can. At the same time, it should also decide the objection to jurisdiction at the earliest possible moment. This is the general principle and this is what Section 9-A reiterates. Takes this very case. The plaintiff asked for temporary injunction. An ad-interim injunction was granted. Then the defendants came forward objecting to the grant of injunctio....
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....n the event of refusal in granting any `interim relief' as fresh reference will have to be made before the Hon'ble third Member to consider the question of `interim relief', which will be a `waste of judicial time' leading to `plurality' and `duplicity' of `judicial proceedings'. 32. The Learned Counsel for the 1st Appellant points out that because of the specific view of the Hon'ble third Member of the `Tribunal' dated 20.09.2019 that only `specific points referred' can be heard by her, it is imperative that the `points of reference' be made `wide' to include every `point of difference' both on `Facts' and `Law'. 33. The Learned Counsel for the 1st Appellant submits that the Hon'ble Judicial Member had rejected the `prayer' for the `grant of interim relief' and the said rejection was not based on `merits' but because of non-maintainability of the `Company Petition' itself and the said rejection will constitute a `point of difference'. 34. The Learned Counsel for the 1st Appellant forcefully submits that `if the issue' `Are the company petitions maintainable and if so, are the petitioners entitled to interim orders as prayed for? is framed, then, it will enable the Hon'ble third....
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.... particular amount due from a debtor who is brought before the Court is an administrative order. It is perhaps not possible to formulate a definition which would satisfactorily distinguish, in this context, between an administrative and a judicial order. That the power is entrusted to or wielded by a person who functions as a Court is not decisive of the question whether the Act or decision is administrative or judicial. But we conceive that an administrative order would be one which is directed' to the regulation or supervision of matters as distinguished from an order which decides the rights of parties or confers or refuses to confer rights to property which are the subject of adjudication before the Court. One of the tests would be whether a matter which involves the exercise of discretion is left for the decision of the authority, particularly if that authority were a Court, and if the discretion has to be exercised on objective, as distinguished from a purely subjective, consideration, it would be a judicial decision. It has sometimes been said that the essence of a judicial proceeding or of a judicial order is that there should be two parties and a lis between them whi....
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....nt" has been defined under Section 2(9) of CPC as below: " "judgment" means the statement given by the Judge of the grounds of a decree or order." while an "Order" has been defined under Section 2(14) of CPC as under: - " "order" means the formal expression of any decision of a Civil Court which is not a decree." 10. It is, therefore, clear that an "order" is something that does not result in a decree or, therefore, a final conclusion of a matter, though a "judgment" may include an "order". The term "judgment" indicates a judicial decision given on the merits of the disputes brought before the Court. It determines the rights of the parties finally. In contrast, an "order" may not be so but could be an interlocutory one, if it does not determine or decide the rights of the parties once and for all. Thus, there are, broadly speaking, two kinds of "orders", one, that is in the nature of a final order and the other not determining the main issue with any finality. If such orders have been passed to help with the progress of the case, they may dispose of a specific question finally, but without finally disposing of the dispute. There is yet another category of "orders", which, i....
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....eld that if such an order vitally affected a valuable right of the defendant, "it would be treated as a judgment", such as, where leave to defend is declined. However, where the order, though affecting the plaintiff adversely, does not cause him direct or immediate prejudice, but only remote prejudice, or damage was of a minimal nature as his rights to prove his case and show the defence to be false still remained, the order would not partake of the characteristics of a "judgment". 13. It was further observed that not every "interlocutory order" can be regarded as a "judgment", as there were many orders that were routine in nature, such as, condonation of delay in filing the documents, orders refusing adjournment, orders refusing to summon additional witness, etc., which may involve exercise of jurisdiction in respect of a procedural matter against one party or the other. 14. On the other hand, "interlocutory orders" which would have the effect of depriving a party of a valuable right, though purely discretionary, may contain attributes and characteristics of finality and could be treated as a "judgment". The court referred to the exercise of discretion of the courts in respect....
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....such, they probably did not get time to frame the points of difference. JUDICIAL PRECEDENTS: 50. Relevant excerpts of the judicial precedents are being extracted to find out whether any of the decision deals with the present situation or otherwise applies to the facts and circumstances or not. 51. In Mussammat Sardar Bibi v. Haq Nawaz Khan & another, AIR 1934 Lah 371, at page 379, the full bench of Lahore High Court observed, In the case before us the points of difference between the learned Judges of the Division Bench have not been stated expressly and to this extent the reference is defective. These points are however apparent from their respective judgments, and counsel for both sides agreed before' us that it was unnecessary to remit the case to the Division Bench to have the question formally drawn up. Accordingly at the commencement of the hearing, the points requiring decision by the Bench were formulated by us, with the concurrence of both parties, as follows: 52. In Firm Ladhuram Rameshwardayal v. Krishi Upaj Mandi Samiti, Shivpuri, AIR 1978 MP 10, full bench of Madhya Pradesh High Court observed as follows, [2] It is thus that the matter has come before us....
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....directed under Clause 26 of the Letters Patent). Nor can he enter into any other point on which the Judges of the Division Bench were not divided in opinion. If the third Judge expresses his opinion on any other point or finally decides the case as a whole, the latter part of his opinion (be it styled as 'order' or 'judgment') has to be ignored as without jurisdiction . After the third Judge has recorded his opinion; the case must be laid before the Division Bench for deciding the point or points which were referred to the third Judge according to the method provided by Clause 26 of the Letters Patent and it is at this stage that a Division Bench will finally decide the case before it. It is not the requirement of law that the case must be laid before the same Division Bench which first heard it, after it is returned by the third Judge. When one of the Judges constituting the Division Bench which first heard the case, has retired or is not otherwise available, the Chief Justice can constitute another Division Bench to decide the case according to the method provided by Clause 26 of the Letters Patent. 53. In Amar Pal Singh v. Election Commission of India, AIR 1993....
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....the point of difference should be decided following the procedure referred in S. 98 of the Code of Civil Procedure and Clause 36 of the Letters Patent Appeal, thus, held the reference as incompetent, and since one of the Hon'ble Judges stood transferred, referred the matter to Hon'ble Acting Chief Justice for considering whether the entire matter needed rehearing. 57. In Amarendra Arya v. State of Bihar & others, LPA No. 1469 of 1995, decided on 25 Sep 2019, the full bench of Patna High Court observed, 60. In view of the aforesaid, it is very much clear that in the event of difference of opinion between the members of the Division Bench, the Division Bench will record its difference of opinion and on the discretion of the Chief Justice the matter will be referred to the third Judge, either Single or Division Bench and the third Judge will confine his opinion on the point which has been referred and will not embark on the point or points not referred, but in a situation if the third Judge gives an opinion apart from the point referred, I am of the opinion that when the matter again goes to the Division Bench for final pronouncement, the majority of the opinion will be th....
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....above state what prejudice would it cause if the third Judge also culls out the points. What difference would it actually make if another Division Bench is constituted and they state the points of difference? Authors of Letters Patent did not contemplate the current situation. Moreover, culling out the points of difference is not a herculean task but just a ministerial act, that even the third Judge can also do very comfortably. Lex necessitatis est lex temporis i.e. instantis - In a case of extreme necessity everything is common. The law of necessity is the law of time, that is time present. 61. Now, culling out the points of a difference does not require analysis and forming an opinion on the matter's merits. Hypothetically, even if this job was to be done by a new division bench, this Court can also do the same. In the Application filed under Section 26 of Letters Patent, even the applicant has thrown light on some points of difference. The Doctrine of necessity would empower this Court to cull out the points of difference so that the matter does not linger on, and at least the Courts pronounce the final verdict at the earliest. Given above, I proceed to cull out and stat....
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.... his necessarily making a concomitant conclusion, vis-a-vis, the contentious inter-se seniority, amongst, the aggrieved appellants, and, the private respondents, hence, becoming finally rested or settled, (c) whereas, for, the reasons to be assigned hereinafter, the contentious inter se seniority amongst them, is, yet in a state of flux or is yet to be formidably clinched, hence, thereupon, it is deemed fit to also decide, the, entire lis engaging the parties at contest, hence, on merits. (d) The further reason for this Court, becoming constrained, to, allow the writ petitions, after, its proceeding, to delve deep into the merits, of, the case, and, to thereafter also obviously make a complete adjudication, vis-a- vis, the contentious competing claims, of, the contesting litigants concerned, is, sparked, by, the factum, that, the Hon'ble Apex Court in Roma Sonkar Vs. Madhya Pradesh State Public Service Commission and another, Civil Appeal Nos. 7400-7401/2018, decided on 31.7.2018 (e) has deprecated the practice of remanding, of, a lis, to, the learned Single Judge, (f) and, has alsoheld that the learned Single Judge, is, not subordinate to the Division Bench....
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.... a decision of the Hon'ble Apex Court rendered in a case titled as B.S. Bajwa and another v. State of Punjab and others, reported in AIR 1999 SC 1510, wherein, the Hon'ble Apex Court, has expostulated, that, any belated endeavours, as, made by the aggrieved, in, challenging, the, drawing(s), of, seniority lists, cannot be countenanced, when hence it would untenably beget disturbing(s) or unsettling(s), of, a clinched or a finally rested controversy. Further thereonwards reliance, is, also conjointly placed, by the learned Single Judge, and, by one of us (Hon'ble Mr. Justice Dharam Chand Chaudhary, J.), upon, a Sharma, learned Senior counsel appearing for respondent o. 2 submitted that his client has issued communication No. HHC/GAZ/10- 17/90-Vol-II-1933-35 dated 28th January, 2005, (which is hereby taken on record by us), whereby a gradation list of the members of H.P.Judicial Service, as it stood on 1.1.2005 was circulated. According to Mr. Rajiv Sharma, the petitioners have not challenged the gradationlist circulated along with the aforesaid communication. Without going into ....
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....ty not being a fundamental right, rather being merely, a, civil right. Furthermore, it has also been expostulated therein, that, inter se seniority, of, all candidates, who are appointed, on the same day, would be dependent, on, the rules governing the same, and, that in the absence of rules governing seniority, an executive order,may be issued, to, fill up the gap. 8.However, the decision of the Hon'ble Apex Court, as, rendered in a case titled, as, B.S. Bajwa and another v. State of Punjab and others, and, reported in AIR 1999 SC 1510, for, hence detailed/ad nauseam reasons assigned hereinafter, is, applicable, only, upon, the contentious seniority becoming finallysettled or it becoming conclusively rested, (a) and, obviously it becomes inapplicable, as hereat, upon, the contentious seniority list(s), as prepared, vis-a-vis, the contesting litigants concerned, being, yet in a state of flux, or it remaining unsettled, rather, it remaining not finally clinched. Moreover, the decision of the Hon'ble Apex Court rendered, in, a case titled as Bimlesh Tanwar vs. State of Haryana and others, reported in (2003)5 SCC 604, is alsorendered inapplicable, vis-a-vis, the factual matrix....
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....rits and in accordance with law as expeditiously as possible and in any case by 31st July, 2005. If anyone feels aggrieved by the decision of the High Court, it shall be open to such person to approach this Court againon the judicial side. In view of the aforesaid order, no earlier representation filed on the subject by any one shall be entertained. All such earlier representations shall be consigned to records without taking any action thereupon. Since this Writ petition is being disposed of as settled in the light of the aforesaid agreement between the parties, we wish to clearly place on record that we have not gone into any question relating to the merits of the controversy between the parties nor have expressed any opinion with regard thereto. All questions and issues are left open." 26. Consequent upon this order, representations were made by the members of H.P. Subordinate Judicial Service including the Judicial Officers similarly situated to the petitioners, which were considered by the Judges' Committee and recommended to be rejected. The High Court has accepted the report of the Judges' Committee in its meeting held on 21.9.2017. Subsequently, the order of breache....
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....kar Mohapatra and others vs. State of Orissa and others, reported in (2010)12 SCC 471, (i) wherein, it has been expostulated, that, the controversy appertaining to the seniority, of,the litigants therein, was amenable rather for declinings, as, the apposite agitations happened, rejection was also conveyed to the representationists. Though, in the order ibidpassed in CWP No. 61 of 1999, liberty was granted to the representationists in case their representations rejected by the High Court on administrative side, however, they opted for not challenging the order of rejection of their representation(s). hence, at a belated stage, and, further that the Courts exercising public law jurisdiction, rather not encouraging agitations, of, stale claims, especially where the right of third parties hence crystallise, in, the interregnum. However, with all firmness, and, formidability, the afore verdicts are again applicable only qua settled, and, finally determined seniority lists, as, made in consonance, with, the then prevailing rules, guidelines or executive instructions, and, reiteratedly are inapplicable hereat, as, the apposite lis remains extantly both unsettled, and, unclinch....
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....eof rather held:- "47. To sum up, we hold that:- ................... * Writ Petition (Civil) No. 1022 of 1989, as it appears to us from the materials on record, relates to the disputes inter se between the individuals/groups, which, in our considered view, would not be appropriate for determination by this Court in an I.A. (No. 334 of 2014) filed in W.P. (C) No. 1022/1989 (All India Judges Association and others v. Union of India and other). We, therefore, decline to entertain the I.A. any further leaving the parties to have resort to such remedies as may be available to them in law. I.A. No. 334 of 2014 in Writ Petition (Civil) No. 1022/1989 is disposed of in the above terms." It is thus seen from the order ibid that the apex Court has declined to entertain the interim application keeping in view the disputes inter se between the individuals/groups raised therein and it was left open to the parties to resort to remedies available to them in accordance with law. Therefore, I.A. No. 334 of 2014 was unsuccessfully pursued by the petitioners in the Hon'ble Apex Court. Now if coming to the order dated 14.7.2016 (Annexure R-3/F) passed in this application and reproduced....
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....menable, for, theirs being pushed down below, the, appointees drawn from other valid source(s), hence subsequent, to their induction into service. However, even the afore dependence, as, made thereon, is, rendered extremely frail, and, also becomes completely enfeebled, through, the imperative diktat rendered, by, the Hon'ble Apex Court, in, a case titled as All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, besides, through, categorical directionsrendered, upon, the High Court, of, H.P., by the Hon'ble Apex Court, in, IA No. 17/2011 in IA No.244/2009 and IA Nos. 1 & 2 in IA Nos. 17/2011 in IA No.244/2009 and IA Nos. 334/2014, IA Nos. 335, 336, 337, 338/2015 and IA No. 339 & 341/2016, on 28.4.2016, the relevant portion whereof reads, as, under:- "In as much as, 34 point roster having beendrawn by the High Court and the relevant rules relating to seniority, namely, Rule-13 has also come into effect, the only other question to be decided is as to how it should be implemented as from 31.3.2003, as directed by us in the judgment referred to above. While drawing the 34 point roster, the High Court has mentioned that the same would be followe....
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....ore stated, has been acquiesced, to be breached, in, the afore report, of, Hon'bleJudges Committee, and, when rather in pursuance thereto, the other Two Hon'ble Judges Committee of this Court, comprising Hon'ble Mr. Justice Sandeep Sharma, J., and, Hon'ble Mr. Justice Vivek Singh Thakur, J., has, in completest deference thereto, hence, made anadnauseam prescription, for, determining or settling the inter se seniority, of, the inductees, to, the posts of Addl. District Judge(s)/District Judge(s), (i) whether appointed, from, the direct recruits, (ii) or from amongst the Civil Judges (Senior Division), (iii) besides from the category(ies) appertaining, to, the Limited Competitive Examination, (iv) thereupon, the afore report, of, the abovesaid committee, does warrant, qua hence the deepest deference being meted thereto. Now, if coming to the second limb of arguments addressed on behalf of the writ petitioners, no doubt the apex Court in All India Judges' Association & ors. vs. Union of India, (2002) 4 SCC 247 has held as under: One of the method of avoiding the seniority dispute, as per directionof the Apex Court is to apply quota in relation toposts and not....
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....ter" and as such recommended that in future respondent No. 2 should follow the "post based roster". The vacancies in existence on 30.3.2010 when the report Annexure P-9 was submitted was, therefore, recommended to be filled by way of applying the "post based roster". The report Annexure P-9 when taken up for consideration by the Full Court was approved and as such on and w.e.f. 31.3.2010, respondent No. 2 is following the "post based roster". 43. True it is that respondent No. 2 was following "vacancy based roster" contrary to the direction of the Apex Court in Judges' Association case (supra), however, respondent No. 2 when detected such mistake has taken a decision to follow the "post based roster" in the matter of recruitment to the cadre of District/Addl. District & Sessions Judges and even stopped the recruitment from direct category candidates till the promotees and the Sr. Civil Judges eligible for accelerated promotion gets their quota fulfilled. Now, respondent no. 2 is following the "post based roster". All the 3 categories i.e. promotees, eligible Sr. Civil Judges under the limited competitive examination and the direct recruits are being provided their respective quota ....
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....s, vis-a-vis, their contentious inter-se seniority, upon, theirs respectively becoming inducted against the post, of, Additional District Judge(s)/District Judge(s), from amongst, the stream, of, direct recruits, and, from the afore apposite alternative thereto channels or streams, of, Civil Judges (Senior Division). However, the afore expostulation of law borne in All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, has been directed, to, hold only prospective effect, and, also a further mandate, is, borne therein, vis-a-vis, the seniority of the apposite inductees, into, service,as, Addl. District Judge(s)/District Judge(s), especially prior to 31st March, 2003, even if, their respective inductions thereto, is, in excess of the apposite quota, rather not ordaining any disturbances or unsettling(s). The relevant paragraphs No.27, 28 and 29, of, the verdictsupra rendered, by, the Hon'ble Apex Court, reads as under:- "27. Another question which falls for consideration is the method of recruitment to the posts in the cadre of higher judicial service i.e., District Judges and Additional District Judges. At the pre....
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....der to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (senior division) should be not less than five years. The High Courts will have to frame a rule in this regard. 28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the higher judicial service i.e., the cadre of District Judge will be: [1](a) 50 per cent by promotion from amongst the Civil Judges (senior division) on the basis of principle of merit-cum-seniority and passing a suitability test; 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (senior division) having not less than five years qualifying service; and 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts. [2] Appropriate rules shall be f....
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....ial service has to be protected but the roster has to be evolved for the future. Appropriate rules and methods will be adopted by the High Courts and approved by the States, wherever necessary by 31st March, 2003." 44. There is no quarrel so as to law laid down by the Apex Court and cited on behalf of the petitioners in M.S. Sandhu & another vs. State of Punjab & others (2014) 6 SCC 514, Narinder Singh vs. Surjit Singh (1984) 2 SCC 402, M/S Shenoy & Co. represented by its partner Bele Srinivasa Raoa Street Bangalore and others vs. Commercial Tax Officer, Circle II, Bangalore and others, (1985(2) SCC 512, Spencer & Company Ltd. And another vs. Vishwadarshan Distributors Pvt. Ltd. & others (1995)1 SCC 259, M/S Bayer India Ltd. And others vs. State of Maharashtra& others (1993) 3 SCC 29 and U.P. Pollution Control Board & ors. vs. Kanoria Industrial Ltd. And another (2001) 2 SCC 549, that thejudgments/orders passed by the Apex Court are binding on all the Courts, including the High Courts in India. Therefore, the judgment passed by the Apex Court in Judges' Association case isbinding on this Court and in compliance thereto,respondent No. 2 has framed 2004 Rulesaccordingly. T....
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....ategory gets its quota. * any, estopping inference(s), of, waivers, acquiescence, and, abandonments, (c) nor also the hereat belated challenge, vis-a-vis, the gradation lists, wherein, theirs names occur below, the private respondents, would adversarially work against them, merely on anvil of vices, of, delay, and, laches, hence purportedly operating against them. Immense fortification, to, the afore view, is, garnered, from, a, decision of the Hon'ble Apex Court, rendered, in, a case titled as Fazlunbi vs. K. Khader Vali and another, reported in (1980)4 SCC 125, the relevant paragraphs No.7 to 10 whereof, stand extracted hereinafter:- "7. We need not labour the point because this Court has already interpreted Section 127(3)(b) in Bai Tahira and no judge in India, except a larger bench of the Supreme Court without a departure from judicial discipline can whittle down, wish away or be unbound by the ratio thereof. The language used is unmistakable, the logic at play is irresistible, the conclusion reached is inescapable, the application of thelaw as expounded there is an easy task. And yet,the Division Bench, if we may with respect say so, has, by the fine art of skirting the ....
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....rated. This is the teleological interpretation, thesociological decoding of the text of Section 127.The keynote though is adequacy of payment: which will take reasonable care of her maintenance. The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate the rate unless it is a reasonable substitute. The legal sanctity of the payment is certified by the fulfilment of the social obligation, not by a ritual exercise rooted in custom. No construction which leads to frustration of thestatutory project can secure validation if the court is to pay true homage to the Constitution. The only just construction of the section is that Parliament intended divorcees should not derive a double benefit. If the payment by any mehar or ordained by custom has a reasonable relation to the object and is a capitalised substitute for the order Under Section 125 not mathematicallybut fairly-then Section 127(3)(b) subserves the goal and relieves the obliger, not pro tanto but wholly. The purpose of the payment 'under any customary or personal law' must be to obviate destitution of the divorcee and to p....
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....s, of, the private respondents. 45. In the matter of seniority, as per the settled legal principles, the seniority already settled cannot be unsettled even if a particular category has exceeded its quota. It has been held by the Apex Court in Hon'ble Punjab & Haryana High Court at Chandigarh vs. State of Punjab & ors., AIR 2018 SC 5284 that in case any category has exceeded its quota in the cadre and the appointment made as perthe Rules, the promotees who have exceeded thequota neither have to be pushed down in the seniority nor their seniority has to be downgraded. However, the conduct of the petitioners and the other similarly situated officers in the cadre of District/Addl. District & 11. The acceptance, by, one of us (Hon'ble Mr. Justice Dharam Chand Chaudhary, J.), of, the submission addressed, by Mr. R.L. Sood, learned Senior Counsel, for, the private respondent, that, for want of further successful challenges, being made by the petitioners, vis-a- vis, the judgment recorded, upon, CWP No. 61 of 1999, (a) and, also the further acceptance, by one of us ( Hon'ble Mr. Justice Dharam Chand Chaudhary, J.), of, a further submission addressed, by the afore....
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....urring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition." 46. The ratio of the judgment of the Apex Court in State of Himachal Pradesh & ors. vs. Rajesh Chander Sood (2016) 10 SCC 77, is that in service matters, delay and laches or limitation may not thwart the claim so long as it may be, however, if such claim if allowed does not have any adverse repercussions on the settled third party rights. The present is a case where the seniority list of 2005 and also 2018 (Annexures P-2 & P-16, respectively) have thereupon, they render themselves rather guilty of vices, of, delay and laches, and, also hence the concomitant stain, of, acquiescence(s), permeating the writ petition(s), (c) necessarily also cannot become countenanced, by, the undersigned, as, the afore verdict was made prior, to, the verdict recorded by the Hon'ble Apex Court, in, a case titled, as, All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, (i) and also was rendered prior to the consequent therewithhence d....
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....t such a belated stage, it will certainly amount to unsettle the seniority of the officers in the cadre settled long back which is not legally permissible. The arguments that S.C.Kainthla, petitioner in CWP No. 2061 of2018 was inducted to the cadre in the year 2006 whereas Rajeev Bhardwaj in CWP No. 2292 of 2018 in the year 2009 and as such the cause of action accrued to them from the said date(s) is again without any help to the writ petitioners as they wake up from deep slumber for the first time only in the year 2014 when I.A. No. 334 of2014 was filed in the Apex Court and thereafter when these writ petitions in the year 2018 in thisCourt. 47. In a case where the impugned seniority list was published at least 12 times was sought to be quashed, the apex Court in V.Bhasker Rao & others vs. State of A.P. & ors. (1993) 3 SCC 307 has held as under: "10. Mr. Madava Reddy then contended that the petitioners were appointed in the years 1981 and since then till the year 1988 twelve seniority lists have been published showing the petitioners below respondents 4 to 16. At no point of time they challenged the seniority lists in the Court. Even when the writ petitions filed by Ch....
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...., of the afore contemplated stream, of, valid inductees, as, Additional District Judge/District Judge, or their non consideration, for, promotion thereinto, is, wholly impermissible, and, also is arbitrary, (h) rather the seniority list, as, drawn by the Hon'ble Judges Committee, hence, in consonance with the expostulation of law, declared in All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, and also in consonance with Rule 13, as, became drawn in concurrence therewith, is enjoined to berevered. (I) Preeminently also for, the preeminent factum, qua, hence only thereupon, the dilution, of, the, apposite Rule hence extantly governing, the, contentious inter se seniority, of, the writ petitioners, and, of the private respondents, and, encapsulating, the, trite canon, vis-a-vis, throughouts rather rigorous adoption(s), by the High Court(s), rather for, the afore requisite purpose, hence the,norm of "Post Based Roster", than, the acquiesced invalidly adopted norm, inasmuch, as, " Vacancy Based Roster" by the High Courts, hence, would become aptly precluded. 13. On anvil of the H.P. Judicial Officers' As....
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....ant paragraphs whereof, read as under:- "21. Holding that the respondents had also acquiesced in accepting the retirements, the appeal of U.P. Jal Nigam was allowed with the following reasons( Jaswant Singh Case,(2006) 11 SCC 464): "13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions,then in such cases, the court should be veryslow in granting the relief to the incumbent.Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whetherother parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged theirretirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liabili....
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.... touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence. 23. Viewed from this angle, in the present case, we find that the selection process tookplace in the year 1986. Appointment orders were issued in the year 1987, but were alsocancelled vide orders dated June 22, 1987. The respondents before us did not challenge these cancelleation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had gr....
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....y attracting against the petitioners, the, estopping vices, of, delay, laches, and, acquiesces (a) and, therealongwith reiteratedly also the afore immediately prior hereto alluded, conclusion, as, drawn, by one of us (Hon'ble Mr. Justice Dharam Chand Chaurdhary, J.), rather becomes completely unhinged, (b) conspicuously, given, the verdict rendered by the Hon'ble Apex Court,in, a case titled as All India Judges' Association& Ors vs. Union of India, reported in (2002)4 SCC 247, hence, for the reasons aforestated, holding a perennial immense inviolable legal command, and, clout, (c) and, also the rules drawn in consonance therewith also enjoying, an, alike perennial command, and, fiat, (d) and, when an acquiesced breach thereof, by, H.P.High Court, is, evident, upon, the afore allusion,as, made to the afore report of the Hon'ble Judges Committee, as, drawn, in, the year 2010, wherein, the rigor, of, the afore imperative judicial diktat, and, also of the apposite therewith rules, hence, being infringed, is,openly echoed, thereupon, necessarily hence apart, from, the judgment (supra) rendered by the Hon'ble Apex Court, becoming a judgmentin rem, rather also makes it....
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....#39; Association & Ors vs. Union of India, reported in (2002)4 SCC 247, and, also from theconsonant therewith incorporated Rule 13, (i)inasmuch, as their services became regularised, from their hitherto adhoc basis service(s), as, Presiding Officer, Fast Track Court, hence, into/as, Addl. District Judges/District Judges, (ii) whereupon, with the afore candid wrong(s) or error(s), if any, arising from depatures, if any, from, the verdict of the Hon'ble Apex Court in case supra, becoming undone, (iii) thereupon, the writ petitioners rather not holding any valid surviving, and, subsisting grievance, and, the verdict recorded, by, the learned Single Judge, being, well merited, and, warranting vindication. However, for fathoming, the,vigour, of, the afore view expressed, by, one, of, us (Hon'ble Mr. Justice Dharam Chand Chaudhary), the undersigned, had, elicited the records appertaining, to the induction into service, of, Judicial Officers or those who become drawn from the stream, of, Civil Judges (Senior Division), (iv) and, has noticed, that,two Fast Track Courts, hence, on an adhoc basis, had come to be created in the year 2003, (v) and, also, a, notifica....
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....ed posts, rather becomes, the, governing or the apposite regulating parameter. Consequently, only after the encadrement hence after 2013, the hitherto adhoc posts, of, Presiding Officer, Fast Track Courts, into, permanent posts, of Additional District and Sessions Judges, the working, of, a 34 point roster, would halt, and, not earlier, (xi) conspicuously nor when the apposite regularizations were not given any retrospective effects, nor also when any concomitant restrospectively operating additions, vis-a-vis, the roster point(s), were hence made through validly made rule(s). Necessarily, upon, increase, in, the strength, of, the apposite cadre hence after 2013, also, the requisite rules, hence, require/required, an, amendment, if, not already made. Moreover, "the effect of the acquiescence", as, made by the Hon'ble Judges Committee, in the report drawn, in the year 2010, also has the necessary sequeling effect, especially, and, inasmuch, as, despite, the officers, hence manning the temporary Fast Track Courts, merely, on an adhoc basis, rather since 2004, and, upto 2010, and also despite, the afore ex-cadre posts, being donned, by the officers drawn, from, the, stream, of, Ci....
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....tee, to be untenably departed from. 52. No doubt in the case in hand, the subordinate Judicial Officers, including the member of the then H.P. Higher Judicial Service raked up the issue of excess quota of direct category candidates in the Higher Judicial Service and inter se seniority, however, either unsuccessfully or without taking such dispute to its logical end. In a case titled Rabindranath Bose & ors. vs. The Union of India & ors.,(1970) 1 SCC 84, where the dispute of seniority was brought to Court after about 15 years, it hasbeen held by the Apex Court that petitioners are not entitled to the relief sought without there being any reasonable explanation as to why they approached the Court after such an inordinate delay. 60. On behalf of respondent No. 2 and on behalf of the petitioners also, reliance has been placed on the judgment of the Apex court in Punjab & Haryana High Court vs. State of Punjab, 2018 SCC Online SC 1728. In this case, the direct recruits and superior JudicialOfficers of Punjab Judicial Service had assailed the seniority list dated 24.12.2015 by filing different set of writ petitions in the High Court of Punjab and Haryana in....
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....e three streams shall be applicable while determining the seniority." * And granted the following reliefs: "71. In view of foregoing discussion, the seniority lis t dated 24.12.2015 is to be set aside. After setting aside the seniority list, two courses are open. Firstly, to re mit this matter to the High Court again to re- cast the seniority list as per our direction and secondly, to finalize sen iority list in this judgment itself. We choose to a dopt the second course for two reasons: Already period of three years has elapsed when the tentative seniority list was published. Finalization of seniority as early as possible is essential and ne cessary for administration of justice. There is no dispute regarding interse - seniority of the promotees under Rule 7(3) (a) and issue pertaining to interseseniority of out of turn promotees and direct recruits have already been finalized by us. Only exercise which is to be undertaken is to place officers of three streams inaccordance with the roster as indicated in Appendix- B. After placing the officers of three streams, the seniority position as per roster comes a....
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....uct. There cannot be any quarrel to the law laid down by the Apex Court in Dwarikesh Sugar Industries Ltd. Vs. Prem Heavy Engineering Works (P) Ltd. And another,(1997) 6 SCC 450. In terms of the law laid down by the Apex court in Judges' Association case, "post based roster" in the matter of recruitment to the cadre of District/Addl. District & Sessions Judges was required to be followed after the Rules framed in the year 2004. Respondent No. 2 has started following "post based roster" on and w.e.f. 31.3.2010, as discussed in detail hereinabove. Therefore, there may be delay which as per the discussion hereinabove is on account of respondent No. 2 was inadvertently following the "vacancy based roster". The writ petitioners, however, failed to explain their conduct in not agitating the matter if not from an early date at least immediately ontheir induction to the service in the cadre ofDistrict/Addl. District & Sessions Judges. The interim application I.A. No. 334 of 2014 in which they were also applicants was ultimately declined to be entertained by the Apex court andaccordingly disposed of. Therefore, any order passed during the pendency of the application ceases to exist on its d....
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....in, the year 2016. Furthermore, it is also canvassed,that, in consonance therewith, there cannot, yet, be any adoption, of, the principle of "pushing down". However, even the afore submission, apart from, the hitherto assigned reason, does, further falter and also stagger(s), (i) as, the apt expostulated therewithin hence special circumstance(s), for, hence, validating, the, departing(s) therefrom, remain unpropounded,in the reply furnished, to, the writ petition, by the High Court, (ii) besides, the, stark factum that in case the High Court, had deemed it fit, to, mete, the, completest condoningcompliance(s) thereto, or to derive, the fullest vigour therefrom, (iii) thereupon, it became both imperative and incumbent, upon, the HighCourt, to apart, from, purveying, the afore drawn apposite minutes, before the Hon'ble Apex Court, to also ensure, that, submission(s) inconsonance therewith, besides also a concurrent therewith order hence occurred, in, the order(s) rendered, on, 28.4.2016, by the Apex Court, upon, I.A. No.17 of 2011 in IA No.244 of 2009, and, IA Nos. 1 & 2 in IA Nos. 17/2011 in IA NO. 244/2009, and, IA No.334/2014, IA Nos. 335, 336, 337, 338/2015, and, IA No. 339 &....
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....36, 337, 338/2015 and IA No. 339 & 341/2016, instituted, in Writ Petition (Civil) No. 1022/1989, as, thereuponthe law declared, by, the Hon'ble Apex Court, would become untenably breached. Contrarily, the afore condonatory reliances anvilled, upon, the verdict supra are deemed, to be waived or abandoned, with, a concomitant estoppel quatherewith hence working against the High Court. Paramountly, for, all afore reasons, all the afore strived condonations, of, all the afore acquiesced departures, is, also deemed, to, be not accepted, by, the Hon'ble Apex Court. 67. The present is rather a case where the petitioners on account of their acts, deeds and conduct as well as acquiescences are not entitled to the relief sought in the writ petition. Learned Single Judge has also rightly held that the writ petitions are bad on account ofclubbing of multiple causes of action for thereason that when no relief has been claimedagainst respondents No. 5 & 6 who were appointed to the cadre on 27.9.2007 and 23.10.2009, respectively, their inclusion in the writ petitions is obviously for an obliquepurpose and extraneous consideration to show that the writ petitions h....
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....question of maintainability'. 45. The Learned Counsel for the 1st Respondent submits that the Hon'ble Member (Judicial) of the `Tribunal' has not adjudicated the `aspect of injunction' and the formulation of point by the Hon'ble Tribunal is not `an order' and that the ingredients Section 98 of the Civil Procedure Code, 2002, does not apply to the facts of the case in three `Appeals'. As such, the instant three `Appeals' preferred by the `Appellants' are not maintainable. 46. The other argument projected on the side of the 1st Respondent is that Section 98 of the Civil Procedure Code, 2002, is not to supplement the Companies Act, 2013, and as such, Section 98 of the Civil Procedure Code, 2002, does not apply. 47. The Learned Counsel for the 1st Respondent points out that Section 419 (5) of the Companies Act, 2013, speaks of the `Members of a Bench' differing in opinion of on any point or points, it shall be decided according to the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ and in this regard, there is `no decision' especially when Section 419 (5) of the Companies Act, 2013, is conspicuously ....
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....uired to be made to the President who, on the administrative side, is required to pass an order for placing the case for hearing either before himself or before any other member or other members, as the facts and circumstances of the case may require, but the case, upon such a reference being made, can be heard by the President or the Member or Members only appeal. The President or the Third Member does not derive any independent jurisdiction and has no powers to decide the appeal in entirety. 19. Therefore, the members who expressed dissenting opinions are bound by the statute to state the point or points of difference and make reference after making such a statement. To use the words of the learned President "an omnibus order" cannot take place of the statement on point or points of difference between the members. The entire appeal(s) cannot be referred." 53. The Learned Counsel for the 1st Respondent refers to the decision of this `Tribunal' in JM Financial Asset Reconstruction Company Limited V Samay Electronics Private Limited, reported in (2020) SSC Online NCLAT 658 , wherein at paragraph 2-3, it is observed as under: "Mr. Sonal Jain, learned counsel representing the App....
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.... have gone back to the Tribunal for its final orders. We do not know what is the practice followed by the Tribunal. The rules framed by the Tribunal, which have been placed before us by the learned counsel, & which are relevant on this point, throw no light on the point. The rules are as follows: "Rule 33 (1) -- The order of the Bench shall be signed and dated by the members constituting it. "Rule 33 (2) -- Where a case is referred under Sub-section (7) of Section 5-A, the order of the member or members to whom it is referred shall be signed and dated by him or them as the case may be." "Rule 34 -- The Tribunal shall, after the order is signed, cause it to be communicated to the assessee and to the Commissioner." 8. These rules do not, however, show that it was intended that the third Member should finally dispose of the appeal when only some point or points had been referred to him for decision. In our view, the case with the opinion of the third Member should go back to the Tribunal for final decision. The Tribunal, when finally disposing of the appeal, may, no doubt, allow other points to be raised before it, if they consider it proper. The third Member, however, can onl....
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.... point by one or more of the other members of the Tribunal and "such point shall be decided according to the opinion of the majority of the members of the Tribunal who have heard the case including those who first heard it" In the present case it is manifest that as regards quantum of assessment not only two members of the Appellate Tribunal but also the President have each of them taken a different view. It is manifest that there is no majority opinion in favour of any particular figure of assessment. In a matter of this description where there is difference of opinion as to the quantum of assessment, we think that the President or the third member to whom the case is referred is legally bound to agree with the figure of assessment either according to the Accountant Member or according to the Judicial Member. It is not open to the President or the third member to take a different view as to the quantum of assessment. The only course open to him is to agree with the figure of assessment according to the opinion of the Judicial Member or the opinion of the Accountant Member. The reason is that if the President takes a different view as to the quantum of assessment there is no ma....
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.... Aryama Sundaram) contends that the point of reference is `vital' and it affects the 1st Respondent right and therefore the right to agitate in `law' is very much available to the 1st Respondent. In this connection, the Learned Counsel for the 1st Respondent submits that if something affects the right of a `Litigant' in a `Judicial proceedings', then, it is a `Judicial Order', which can be questioned before a "Judicial / Quasi-judicial Fora". Before an `Administrative Authority', `an Administrative Order' can be assailed. 61. The Learned Counsel for R1 (Mr. Aryama Sundaram) comes out with a plea that the Hon'ble Members had differed on four points and there was a `wrongful exercise of jurisdiction', and as such, the 1st Respondent in Law as a right to correct or set right the same in an `Appeal'. 62. The Learned Counsel for R1 (Mr. Aryama Sundaram) points out that the difference between the two Hon'ble Members had arose at prima facie stage itself and the wings of the 1st Respondent were clipped by the `Tribunal' in not making a proper reference. In this connection, on behalf of the 1st Respondent Mr. Aryama Sundaram, the Learned Counsel points out that the Hon'ble Bench of the T....
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....t in appeal over the matter and decide some questions and leave some questions unanswered in his own way. The Third Member ought to have endeavoured to answer the question referred to him in a specific manner so that the matter ultimately could have been decided by Regular Bench in the light of majority opinion but that has not been done in the case in hand. Therefore, we find that the Third Member as well as the Regular Bench have not acted in the manner, as contemplated in law." 65. The Learned Counsel for the 2nd Respondent cites the order of the Hon'ble Madras High Court dated 23.05.2018 in the matter of STAR India Private Limited, Chennai, and Vijay Television Pvt Ltd., Chennai, (Petitioners in W.P.Nos. 44126 and 44127 of 2016) V Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, New Delhi and 3 Ors., wherein at paragraphs 4.1 and 4.2, it is observed as under: 4.1. "Before venturing into the case in detail, it would be appropriate to define the role of this Court as the boundary lines are to be defined, drawn and marked. Clause 36 of the Letters Patent of the Madras High Court defines and delineates the contours of the power to be exercised by....
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....d Counsel for the 3rd Respondent adverts to Section 2 (14) of the Civil Procedure Code, which defines `an Order' meaning the `formal expression of any decision of a Civil Code which is not a decree'. 67. The Learned Counsel for the 3rd Respondent proceeds to submit that as per Section 419 (5) of the Companies Act, 2013, `no power is vested on the Referral Member to `add' or `modify' any `point of difference'. 68. The Learned Counsel for the 4th Respondent contends that when the `point of difference' was framed by the `Hon'ble Tribunal on 11.02.2022, there was no `point of merit' that was decided and the same is not an `Appealable Order' and in fact, the Hon'ble `Tribunal' had only stated about the point of difference between the Members, which was to be communicated to the Registrar, `National Company Law Tribunal' New Delhi, for further action. 69. The Learned Counsel for the 4th Respondent points out that the `point of difference `A', framed by the `Hon'ble Tribunal' on 11.02.2022 is a `wider one' and that Section 98 of the CPC will not apply. Furthermore, the `Letters Patent Appeal' applies to the `Chartered High Court'. Added further, the Learned Counsel for the 4th Responde....
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....7th Respondent that the order of the `Tribunal' dated 11.02.2022 (where the `point of difference' was formulated) which was ordered to be communicated to the `Registrar', `National Company Law Tribunal', New Delhi, for further orders is only an `internal communication' and this is not an `Order' as per Section 420 of the Companies Act, 2013. 76. This `Tribunal' has heard the Learned Counsels appearing for the `respective Parties' on the `aspect of Maintainability' of Company Appeal (AT) Nos. 67, 68 and 69 of 2022 and noticed their contentions. 77. Section 419 (5) of the Companies Act, 2013, reads as under: (5) "If the Members of a Bench differ in opinion on any point or points, it shall be decided according to the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the President for hearing on such point or points by one or more of the other Members of the Tribunal and such point or points shall be decided according to the opinion of the majority of Members who have heard the case, including those who first heard it." 78. It is pointed out that Rule 60, `matters r....
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....hat Section 421 (1) of the Companies Act, 2013, corresponds to Section 10 FQ of the Companies Act, 1956, which provided that an `Appeal' could be filed only by a `person' who is `aggrieved' by an `Order' or `decision' of a `Tribunal'. 83. Indeed, the meaning of Section 10 F of the Companies Act, 1956, provided that an `Appeal' shall lie against `any decision' or `order' passed by the Company Law Board. However, the Companies Act, 2013, provision uses the `word' in sub-section 1 of Section 421 of the Companies Act, 2013, `an Order' of the `Tribunal', which ordinarily means that an `Appeal' against `an Order' passed by the `Tribunal', shall lie even if the `Order' passed by the `Tribunal', does not finally determine the `right of parties'. It cannot be gain said that in `Law', the `Right of Appeal' is a `valuable Statutory Right'. 84. National Company Law Tribunal, Rules, 2016: Rule 45 (1) of the NCLT, Rules, 2016, deals with `Rights of a Party to appear before a `Tribunal' `Every party may appear before a `Tribunal' in person or through an Authorised Representative, duly authorised in writing in this behalf'. 85. National Company Law Appellate Tribunal, Rules, 2016: (i) To be n....
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....matters, had given their `dissenting judgments' and hence the matter was referred to the `Hon'ble President' of the National Company Law Tribunal, Principal Bench, New Delhi, who had nominated the third Member and that the `Hon'ble Third Member' of the `Tribunal' had observed in the `Order' dated 20.09.2021, that the `points of difference' between the `Hon'ble Dissenting Members', were not placed on record and proceeded to make an `observation' that `the jurisdiction of this Bench was confined to the point/point(s) on which the Original Bench differed and the absence of any such point/point(s) placed, no other issue could be heard or adjudicated upon by this Bench, as per provisions of Section 419 (5) of the Companies Act, 2013', and had not granted the interim relief, prayed for. 89. It is brought to the notice of this `Tribunal' that in the `Order' dated 22.12.2021, the `Hon'ble third Member' of the `Tribunal' (when the matter was listed) had observed that `points of difference' between the Members for `dissenting judgements' were not placed on record and hence directed the Learned Counsels to take steps to ensure the availability of all pleadings on `E-portal', before the Bench....
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....usively determines the `right' of the `parties'. A `Judicial Order' must contain discussions of question of issue and reasons therefor. Order: 96. In fact, the `term' `Order' is not defined under the Companies Act, 2013. It is to be remembered that an `Order' must cause a `legal grievance' by wrongfully depriving him of something as per decision of Hon'ble Supreme Court in Adipheroz Shah Gandhi V H.M. Seervai, reported in AIR (1971) SC Page 385. 97. At this stage, this `Tribunal' worth recalls and recollects observation made by Lord Bramwell in the case of Sanback Charity Trustee V North Stafford Shire Railway Company (1877), LR 3 Q.B.D.1 to the effect that `An Appeal does not exist in the nature of things'. A `Right' of an `Appeal' from the `Tribunal' must be given by an `express enactment' and there is no `implied right'. 98. It cannot be brushed aside that `an Order' does not necessarily mean that it should contain either a `direction' or `command'. In this connection, this `Tribunal' aptly points out that in Ramanatha Aiyar's Law Lexicon (1940 Edn) at Page 918, wherein, it is mentioned that the `word' `Order' is no doubt defined as a `mandate' or `command', but it is stated....
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....C 1266, wherein under the Caption `Headnote' and Held, it is observed as under: Headnote: "The three appellants were charged with offences under ss. 302 and 323 read with s. 34 of the Penal Code and appellants 1 and 2 were charged with the individual offences under ss. 302 and 323 for intentionally causing the death of A, mistaking him for V and for causing simple hurt to V. The Sessions Judge acquitted all the three accused under Section 302 read with Section 34 but convicted them under Section 304 Part II read with Section 34 and sentenced them to suffer rigorous imprisonment for five years. Appellants 1 and 2 were also convicted for the offence under Section 323 and appellant 3 was convicted for the offence under Section 323 read with Section 34. All three were sentenced for these convictions to rigorous imprisonment for terms to run concurrently. On appeal to a Division Bench of the High Court one learned Judge held, that the first appellant alone was responsible for the fatal injury on A and found him guilty under Section 302, while the second and third appellants were found guilty under Section 324 read with Section 34. The second learned Judge was of the view that all ....
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....grounds can `differ' from the `Referring Judges' on a `point' which both the `Members'/`Judges' had agreed. The opinion of Hon'ble Third Judge is held to be a decision of a `Case', as per decision AIR 1968 Cal 220. As a matter of fact, the `Hon'ble Third Member' is to exercise discretion informed by legal traditions, arranging in an orderly and systematic manner, of course, disciplined by the `Judicial System'. Besides these, where the Judges of the Division Bench do not agree about the true effect of opinion of the Third Judge, it is open to them to obtain a clarification from the Third Judge as to what exactly he intended to convey his opinion as per decision AIR 1956 All Pg : 529. Not a `Civil Court': 106. It is to be pointed out that the `Company Law Board' (now the `Tribunal'), exercising `jurisdiction' under Sections 397 and 398 under the Companies Act, 1956, is not a `Civil Court', as per decision AIR 2004 Bom 384. Not a case Decided: 107. It must be borne in mind that a `Court's Order' adjourning the `hearing of the case', is not an `Order' as per Section 2 (14) of the Civil Procedure Code and `not a case is decided', as opined by this `Tribunal'. 108. It is to be poin....
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....in referring the `matter' to the `Hon'ble President' of the Principal Bench of National Company Law Tribunal, to resolve the `impasse' in regard to the `point of difference' formulated by them and `no opportunity' is to be provided to the `Parties' for the `purpose of hearing', when Section 419 (5) of the Companies Act, 2013, is conspicuously silent in this regard, of `Hearing the Parties' and also there is no requirement of `supply of formulation of the `point of difference' framed by the `Hon'ble Members' of the `Tribunal' on 11.02.2022 to the `Parties'. Viewed in that perspective and looking at from any angle, the `Company Appeal Nos. 67, 68 and 69 of 2022 filed by the Appellants (against the `impugned order' dated 11.02.2022 in CP Nos. 112, 113 and 114 / KB of 2021) before this `Appellate Tribunal' are per se `not maintainable' in the `eye of law' and they are `otiose' one, because of the crystalline fact that the formulation of `point of divergence' is not an `Appealable Order', pending rendering of an `opinion'/`decision' by the `Hon'ble Third Member' (on the `aspect of maintainability' of CP Nos. 112, 113 and 114/KB of 2021 on the file of the `Tribunal') in embarking upon th....