TaxTMI 
TaxTMI 
2022 (6) TMI 621
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....HIV DAYAL KAPUR, SHRI. KRISHNA DAMANI, 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.....
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....n 11.02.2022, runs as under: (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 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 Owner....
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....Company Law Tribunal', Kolkatta Bench, on 02.07.2021 had `allowed' all the CAs on maintainability - CA No.81/KB/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 clin....
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....er, the `Appellants' will be once again perforced to approach the `Tribunal' seeking grant of `Interim Relief', thereby protracting the prejudice to the `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....
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....contend that `an Order' passed under Section 419 (5) of the Companies Act, 2013, is not an `Appealable' one would render such `an Order' of the `National Company Law Tribunal' cast in a `stone' 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....
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....pellate Tribunal which reads as follows: 424. Procedure before Tribunal and Appellate Tribunal: "(1) The Tribunal and the Appellate Tribunal shall not, while disposing of any proceeding before it or, as the case may be, an appeal before it, be bound by the procedure laid 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 i....
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....ral justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances 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....
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.... because he cannot act as Judge and at the same time be a party'. The form 'nemo potest esse simul actor et judex', that is, 'no one can be at once suitor and judge' is also at times used. The second rule is 'audi alteram partem', that is, 'hear the other side'. At times and particularly in continental countries, 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 vacat....
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....isions of the Code Which are listed in Section 104 are capable of appeal and Done others. It was, not in dispute that very few of the orders passed in a winding up would amount to decrees within the Code. There was no doubt either that most of the orders or decisions in winding up would not be comprehended within the class of appealable orders specified 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.1....
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....sdiction would be subject to an appeal. 12. There is also one another aspect from which the problem could be viewed. Taking first the provisions of the Civil Procedure Code which would govern the orders passed by District Courts; it would be seen that apart from "decrees" which are appealable by reason of s. 96 of the Code, "orders" are appealable 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 ....
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.... the rules of natural justice. (Also see: Mrs. Maneka Gandhi Vs. Union of India & Anr. (1978) 1 SCC 248; and S.L. Kapoor Vs. Jagmohan & Ors. (1980) 4 SCC 379.'' 23. It is represented on behalf of the 1st Appellant `a Decision' which substantially decides the right of the parties must be deemed to be a `Judicial Order' and refers to the decision in BDR Developers Private Limited 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 deci....
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....e two kinds of "preliminary judgments". One is where the trial judge dismisses the suit without going into the merits of it and only on a preliminary objection raised by the defendant. The second one is where these preliminary objections raised by the defendant are decided against him, and the suit proceeds further. These distinctions were no doubt, drawn in order to answer the question whether a Letters Patent Appeal would lie. The 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....
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.... 33 and 62) Even if it be assumed that Order 43 Rule 1 does not apply to letters patent Appeals, the principles governing these provisions would apply by process of analogy. Having regard to the nature of the orders contemplated in the various clauses of Order 43 Rule 1, there can be no doubt that these orders purport to decide valuable rights of the parties in ancillary proceedings even though the suit is kept alive and that these orders do possess the attributes of character 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 contemplate....
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....d a decision making process involved in framing the `point of Reference'. 27. The Learned Counsel for the 1st Appellant proceeds to point out that framing the `points of difference' as per Section 419 of the Companies, Act, 2013, is similar to that of framing of Issues in a `suit' under `Order XIV Rule V of Civil Procedure Code'. Further, it is the plea of the 1st Appellant's side that when framing of `Issues' in a `suit' are considered `Order' there is no reason why a similar exercise of framing the `points of difference' should not 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 `Adju....
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....isdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit. (2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application, the court may grant such interim relief as it may consider necessary pending determination by it of the preliminary issue as to the jurisdiction." 16. According to this section, if an objection is raised 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 st....
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....nce and violation of the interim injunction committed by them prior to the High Court's decision on the question of jurisdiction." 31. The Learned Counsel for the 1st Appellant takes a stand that even if the Appellants' succeed on the `aspect of maintainability' before the Hon'ble third Member of the `Tribunal', the Hon'ble third Member would be unable to grant any `interim relief' as such question was not referred to her. In such an even, the matter, would have to go back to the `Tribunal' for consideration of grant of `interim relief' by the Hon'ble third Member and in 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....
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....ch an order could be classified as an administrative order. One thing is clear, that the mere fact that the order is passed in the course of the administration of the assets of the company and for realising those assets is not by itself sufficient to make it an administrative, as distinguished from a judicial, order. For instance, the determination of amounts due to the company from its debtors which is also part of the process of the realisation of the assets of the company is a matter which arises in the course of the administration. It does not on that account follow that the determination of the 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 whic....
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.... the parties to property. In this view we are clearly of the opinion that the order of the Court was, in the circumstances, a judicial order and not an administrative one and was therefore not inherently incapable of being brought up in appeal. 39. The Learned Counsel for the 2nd Appellant points out the decision of the Hon'ble Supreme Court in BDR Developers Private Limited V Narsingh, (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 decis....
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.... two kinds of "preliminary judgments". One is where the trial judge dismisses the suit without going into the merits of it and only on a preliminary objection raised by the defendant. The second one is where these preliminary objections raised by the defendant are decided against him, and the suit proceeds further. These distinctions were no doubt, drawn in order to answer the question whether a Letters Patent Appeal would lie. The 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 ....
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....Letters Patent Appeals filed under clause 10 of the Letters Patent, against the decision of Ld. Single Judge. Given the dissenting judgments of both Hon'ble Judges, clause 26 defines the scope for the third Judge. However, since the third Judge is to hear the case upon the point(s) of difference the judges so stated when equally divided, while pronouncing their verdicts. Although clause 26 uses the word "shall" while contemplating such equal division, and mentions that "if the Judges are equally divided, they shall state the point upon which they differ," however, may be because the date of the pronouncement of judgment co-incidentally was the last working day of one of the Hon'ble Judges, as 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 poin....
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....e point or points of difference of the Judges of the Division Bench, returns his opinion under Clause 26 of the Letters Patent, any other Division Bench of which one or both of the Judges were not members of the Division Bench which originally heard the case, can render the decision in accordance with the majority of the opinion of the Judges of the referring Bench and the referee Bench. (2) When on a difference of opinion between two Judges constituting a Division Bench, a matter is referred to a third Judge, the third Judge can, only express his 'opinion.' on the 'point' on which the Judges are divided in opinion. However, the third Judge cannot 'decide' that point. (He has to leave to the Division Bench to 'decide' the point as 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 rec....
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....f difference in the light of a decision of the special bench of this court in Jyoti Prakash Mishra (Supra) [AIR 1965 Calcutta 483]. 55. In Neeraj Sharma v. Union of India, Punjab Law Reporter, Vol CXLIV- (2006-3), at page 8, Para 23, Ld. Single B Judge observed, Conclusions: For the reasons recorded above, since no point of difference seems to emerge, from the two points agitated on behalf of the applicants, on which separate deliberations have been recorded hereinabove, there is no merit in the prayer made in the instant applications, under Rule 31 of Chapter 4(F) of the High Court Rules and Orders, read with Clause 26 of the Letters Patent. 56. In DLF Universal Ltd v. State Bank of India, 2012 SCC OnLine Guj 972, Ld. Single Bench of Gujrat High Court observed that in case of difference of opinion, 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 neede....
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.... Procedure and Clause 36 of the Letters Patent Appeal, thus, held the reference as incompetent, however, In Firm Ladhuram Rameshwardayal v. Krishi Upaj Mandi Samiti, Shivpuri, AIR 1978 MP 10, full bench of Madhya Pradesh High Court observed that 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. All other decisions mentioned above were on entirely different circumstances and would not apply in the circumstances and factual matrix of this case. 59. None of the decisions mentioned 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 ....
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....ivate respondents concerned, hence, in their respective replies, as, became furnished to the respective petitions, (a) objections whereof, appertain to the writ petitions, being hit by vices, of, delay and laches, and, also theirs being permeated with entrenched vices of estoppel, and, acquiescences. However, since, the emphatic nuance, of, the afore assigned reason, is, made dependent, upon, various citations, each carrying, a, proposition of law, vis-a-vis, rather the completely settled, and, determined apposite inter se seniority, being unamenable, for re-opening, conspicuously after elapsings, of, an unduly procrastinated period of time, since the apt contentious inter se seniority, becoming clinched or settled. Obviously, hence, when the afore assigned reason, by the learned Single Judge, is, also necessarily entwined with the merits, of, the case, (b) given 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 seniori....
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.... chequered history becausethe promotee officers of and on had been espousing their claims qua seniority vis-à-visdirect recruits since long. We may refer here CWP No. 61 of 1999 filed by the then H.P.Judicial Service Association and its members i.e. the subordinate Judicial Officers at bottomin the seniority list and also the Officers inducted to the cadre of the then Higher Judicial Service by way of promotion challenging therein the recruitment of direct recruits to the service. The said writ petition remained pending in this Court till 2005 and it was disposed of vide order dated 18.4.2005 in the following terms: "As the hearing was in progress, Mr. Rajiv 7. The concurrent predominant reason, which prevailed, upon, the learned Single Judge, and, also, upon, the, Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge, for, both making a conjoint verdict, upon, the afore LPAs, is, grooved, (ii) upon, 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 agg....
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....bmits and undertakes before us that if the petitioners indeed file objections and submit representations against the aforesaid gradation list, the High Court on its administrative side shall consider such objection(s)/representation(s0 and dispose them of in accordance with law and on their merits within the shortest possible time, preferably within 2-3 months. Based on the aforesaid agreement between the parties, the Writ petition is disposed of as settled. We pass the following order and issue hereinbelow mentioned directions:- 1. Only in so far as the placement of direct recruited Additional District Judges in judgment 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, (i) wherein, it has been propounded, vis-a- vis, claims, of, seniority 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 governi....
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....oner No. 1 as well as other aggrieved Officers, if any, to file objections or make representations against their alleged improper placement and for seeking rectification/redressal of grievances. Such objections shall be filed and such representations shall be made, if any, latest by 30th April, 2005. The High Court on its administrative side shall receive the aforesaid objections/representations, process the same, examine and consider them on their merits and dispose them of in accordance with law. If in the process of consideration, the High Court feels that anyone whose name has been included in the aforesaid gradation list needs to be displaced to a lower position, an opportunity of being heard shall be afforded to such personbut only through the mechanism of a written representation. No such person shall have any right of a personalhearing. The High Court on its administrative side shall take a final decision in the aforesaid matter on its merits 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. ....
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....tive Examination and the remaining 8 by direct recruitment from amongst the practicing Advocates. However, after coming into force of the extant Rules, we have been following the vacancy based roster, that is to say that we have been rotating the vacancies in the ratio of 2:1:1, amongst the promotees, Officers selected by Limited Competitive Examination, and, direct recruits from amongst the practicing Advocates, correctness of which is doubtful." 9. Succor and support is also drawn, by one, of, us (Hon'ble Mr. Justice Dharam Chaudhary, J.), for, his concluding, that, the petitioners/appellants' belated apposite challenge, rather warranting its being discountenanced, hence, from, a decision, of,the Hon'ble Apex Court, rendered in a case titled as K.R. Mudgal and others vs. R.P. Singh and others, reported in AIR1986 SC 2086, besides also from a decision, of, the Hon'bleApex Court rendered, in, a case titled as Shiba Shankar 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 decl....
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....ctual matrix prevailing, in, the afore alluded judgment(s), as, rendered by the Hon'ble Apex Court, and, with the factual contentious matrix borne, in, the extant case, hence being completely and diametrically contradistinct, rather therefrom, inasmuch, as, it being fully dependent solitarily, upon, the verdict (supra), thereupon, also it would be unbefitting, to, draw any succor therefrom. 36. Anyhow, the application IA No. 334 of 2014 when ultimately came to be listed before the apex Court on 13.3.2018 after the High Court filed the report and also the affidavit in terms of order dated 9.10.2017, following order (Annexure P-15) came to be passed therein: "The issue raised in I.A. No. 334 of 2014 in 10. The Hon'ble Apex Court, in, a verdict rendered in a case titled, as, Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra and others, reported in (1990)2 SCC 715, has in paragraphs No. 47 (D) and 47(E) thereof 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 dispu....
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....osed If it becomes impossible to adhere to the exising quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the Rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service a later date." Though, with immense fortifying vigour, dependence, is, made thereon, by, the private respondents concerned, to, contend qua even, if their induction into service, is, in excess, of, the afore norms, as, become prescribed, in, a case titled as All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, yet they are not amenable, 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....
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....inabove if it is not a case of acquiescence of claims, what else is any other inference which can be drawn therefrom. The present is, therefore, a case where the petitioners have acquiesced their claims and as such, have no right to claim the seniority over and above the privaterespondents. three different categories of promotees and direct recruits and carry out the said exercise from 31.3.2003." (a) wherein the Hon'ble Apex Court, has, cast an inflexible mandate, upon, this Court, to, apply the afore Rule 13, strictly in consonance, with, the verdict of the Hon'ble Apex Court, rendered in a case titled as All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, to, hence for therefrom, it making determination(s), of, the inter se seniority, of, the inductees, into, the rank or post of Addl. District Judge(s)/District Judge(s), and, who become drawn thereinto, from, the afore contemplated streams or channels. The inviolability of the afore imperative diktat, as afore 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 Jud....
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....st, of, District Judge/Addl.District Judge, and, qua wherewith, a, 25% quota is prescribed. However, the private respondents, belong to the category, of, direct recruitees or from the envisaged stream(s), of, eligible advocates, and, qua wherewith, a, 25% quota is prescribed, for their induction(s), as, Additional District Judge(s)/District Judge(s). Apart from the afore imperative necessity, hence, of extracting the based roster" or "vacancy based roster" came to be considered by a Committee of the Judges of this Court which has given its report dated 30.3.2010, Annexure P-9 to CWP No. 2061 of 2018. It has been noticed in the report that after coming into force 2004 Rules, respondent No. 2 is still following "vacancy based roster" i.e. the rotation of the vacancies in the ratio of 2:1:1 amongst promotee, selection made by limited competitive examination and direct recruitment from amongst the practicing Advocates. The Judges' committee, therefore, had every suspicion qua the correctness of following "vacancy based roster" 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....
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....t recruitment is made to a cadre, the inter-se seniority of persons sorecruited shall be in the order in which their names are arranged in the select list. (4) Every year in the month of January seniority list of officers in all cadres shall be prepared and published by the High Court and the lists so published shall be issued for the purpose of making promotions to the next higher cadres." Moreover, 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, also is the prima donna reckoner, for, the requisite purpose. In the verdict supra, the hon'ble Apex Court has rendered explicit directions, upon, all the High Courts concerned, to specify the quotas, in, relations to posts, and, not in relation to vacancies. Further thereonwards it has also been mandated therein, that, the afore quotas shall constitute, the, regulatory mechanism, hence, for settling all disputes arising, amongst, the competing litigants' claims, vis-a-vis, their contentious inter-se seniority, upon, theirs respectively becoming inducted against the post, of, Additional District....
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....er cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion tothe higher judicial service. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to compete with each other so as to excel and get quicker promotion. In this way, we expect that the calibre of the members of the higher judicial service will further improve. In order to achieve this, while the ratio of 75 per cent appointment by promotion and 25 per cent by direct recruitment to the higher judicial service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned : 50 per cent of the total post in the higher judicial services must be filled by promotion on the basis of principle of merit-cum-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficien....
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....ment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is recruited. When roster system is followed, there is no question of any dispute arising. The 40- point roster has been considered and approved by this Court in R.K. Sabharwal and Ors. v. State of Punjab . One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies. This is the basic principle on thebasis of which the 40- point roster works. We direct the High Courts to suitably amend and promulgate seniority rules on the basis of the roster principle as approved by this Court in R.K. Sabharwal's case (supra) as early as possible. We hope that as a result thereof, there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply prospectively except where under the relevant rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the higher judicial service has to be protected but the roster has to be evolved for the future. Appropriate....
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....and, also dehors, the earlier unsuccessful challenges, as, raised by the petitioners, through, the Judicial Officers' Association, rather not begetting against them, 20.3.2004. However, in the matter of recruitment to the cadre of District/Addl. District & Sessions Judges, "vacancy based roster" continued to be followed by way of an inadvertent mistake till 31.3.2010. When such mistake came to the notice of the said respondent, it has been rectified and on and w.e.f. 31.3.2010, the said respondent isfollowing the "post based roster". In order to bring the quota meant for direct recruits as prescribed under the Rules at par the recruitment from this category was stopped and the posts in existence as on 31.3.2010 have beenfilled up by way of promotion from amongst eligible Sr. Civil Judges/by way of accelerated promotion. Therefore, the loss on account of inadvertent mistake attributed to respondent No. 2 either caused to promotee or the eligible Sr. Civil Judges by way of accelerated promotion has now been made good. The direct recruits had also to suffer as their recruitment stopped till each category gets its quota. • any, estopping inference....
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....id not raise any plea based on Section127(3)(b) Cr. P.C. Let us quote a few passages from this Court's ruling in Bai Tahira (supra) to express the untenability of the excuse not to follow the binding ratio: Nor can Section 127 rescue the respondent, from his obligation, payment of mehar money, as a customary discharge, is within the cognizance of that provision. But what was the amount of mehar ? Rs. 5000/-, interest from which could not keep the woman's body and soul together for a day, even in that city where 40% of the population are reported to live on pavements, unless she was ready to sell her body and give up her soul The point must beclearly understood that the scheme of thecomplex of provisions in Chapter IX has a social purpose. III-used wives and desperate divorcees shall not be driven to material and moral dereliction to seek sanctuary in the streets. This traumatic horror animates theamplitude of Section, 127. Where the husband, by customary payment at the time of divorce, has adequately provided for the divorce, a subsequent series of recurrent doles is contraindicated and the husband liberated. This is the teleological inter....
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....y left on the shelf in this way, as a wag observed, they become very "distinguished". The limit of the process is reached when a judge says that the precedent is an authority only "on its actual facts". We need hardly say that these devices are not permissible for the High Courts when decisions of the Supreme Court are cited before them not merely because of the jurisprudence of precedents, but because of the imperatives of Article 141." (i) wherein a trite principle of law stands expounded, vis-a-vis, verdicts rendered, by the Hon'ble Apex Court, being unamenable, for, being departed from, by the High Courts, hence, in tandem therewith, the, acquiesced departure(s), from, the verdict, of, the Hon'ble Apex Court rendered in All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, and, also from, the, in consonance therewith Rule 13, borne in the H.P. Judicial Rules, can neither be brooked nor can be countenanced, irrespective, of any purported delay, and, laches, arising from any belated challenges, being made by the writ petitioners, vis-a-vis, the gradation list(s) concerned, wherein, their names occur, below, the names, of, the private res....
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....by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptionsto the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be grantedeven if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source ofinjury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re- opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating....
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....n, the H.P. Judicial Services Rules, hence, in pursuance to the decision, of, the Hon'ble Apex Court, as, rendered, in, the afore case. 12. One of us (Hon'ble Mr. Justice D.C. Chaudhary, J.) has strenuously emphasised, upon, the factum qua with both the writ petitioners or one of them, in, contemporaneity, vis-a-vis, their induction into service, and, of, the private respondents, rather being not borne, in, the cadre of District Judge/Additional District Judge, hence, theirsbeing barred, to, at this stage, hence, stake any claim, for, theirs securing, a, rank in the seniority list, rather above the private respondents, (a) especially in contemporaneity, vis-a-vis, the, induction(s) into service, of, the private respondents. However, the afore submission is also unworthy, for acceptance, (b) as, the apt suitable aspirants, vis-a-vis, the contentious post of judicial officers, are those, who were to be legitimately drawn, from, the stream or feeder channel of Civil Judges (Senior Division), for, hence, their claim, for, been sought to be quashed. In case....
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....ciation & Ors vs. Union of India, reported in (2002)4 SCC 247, and,besides also, obviously, upon, the afore alluded hence acquiesced breach of Rule 13, as, became promulgated, in consonance therewith, (d) whereas, they were necessarily available, for induction/promotion, to the post of District Judge/Additional District Judge, (e) and, who,as explicitly echoed, in, the report of the Hon'ble Judges Committee, rather were untenably declined, their right for being considered for promotion, vis-a-vis, the, apposite promotional post(s). Since the afore declinings, are not grooved, in any further reason, qua theirs being either unsuitable, for, promotion, to, the rank of District Judge/Additional District Judge, given theirs thereat facing proceedings, of, mis-conduct (f) or theirs being otherwise unsuitable or theirs not passing any prescribed suitability test, for, the relevant purpose nor when the High Court, in its reply, hence, projects any further reason, qua, hence, any dire exigencies, of, service or for any other scribed well reasoned circumstances, their non induction, to, the promotional post, of, District Judge/Additional District Judge, rather becoming necessitated, (g) ....
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....em, along with them, in, the extant petition(s), also making operational, the, estopping principles, of, waivers, and, abandonments, against, the writ petitioners, and,the latters being concomitantly baulked, to, re- agitate a controversy, rather acquiesced, by the H.P. Judicial Officers' Association, as evident, from, the H.P. Judicial Officers' Association, unconditionally withdrawing CWP No. 696 of 2010, to be finally, and, conclusively, hence earlier rested. However, the, effects, of, the afore estopping inference(s), of, acquiescence or waivers, and, abandonments, as, hence become drawn, by one of us (Hon'ble Mr. Justice Dharam Chand Chaudhary, J.), does also rather hence become emaciated, vis-a-vis, its vigour, (d) inasmuch as, the verdict of the Hon'ble Apex Court, as, rendered in a case titled, as, All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, is, a judgment in rem, hence within, the, domain, of, the trite postulations, as, are borne, in, relevant paragraphs No. 21 to 23, of, a decision of the Hon'ble Apex Court rendered, in, a case titled, as, State of Uttar Pradesh and others vs. Arvind Kumar Sribastava and ot....
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....e normal rule would be that merely because other similarly situated persons did notapproach the Court earlier, they are not to be treated differently. 22.2. However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 22.3 However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situat....
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....h, delay and laches or acquiescences hence bar the slumbering litigants, to, raise claim(s), earlier reared and granted, vis-a-vis, the peers concerned, who rather successfully agitated them through courts, yet an exception thereto, is, also carved therein inasmuch, as qua, upon, any judgment pronounced by courts oflaw, being, a, judgment in rem, hence, with an intention, to, give benefit to all, (iii) thereupon, the estopping inference(s), of, delay and laches or of acquiescence, rather not working against other purportedly identical, and, similarly situated persons, hence, along with their apposite peers, and, who subsequently claim an alike relief, vis- a-vis, the ones granted earlier qua their peers, preeminently rather the afore estopping vices becoming denuded, vis-a-vis, their vigour, and, force. Necessarily hence the fulcrum, of, the reasoning, assigned by one of us(Hon'ble Mr. Justice Dharam Chand Chaudhary, J.) while concurring, with an alike therewith inference, as, became earlier drawn, by the learned Single Judge of this Court, qua, with the, purported immense procrastinated delay hereat, and, also with an immense hiatus elapsing, in, theirs challenging, the, purpo....
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....dicts, are inapplicable hereat. Even though, one of us (Hon'ble Mr. Justice Dharam Chand Chaudhary) has alluded, to, the recorded minutes, as, made by the Full Court, in its meeting held in the year 2017, wherethrough,the report Annexure P-12, became disapprobated, on anvil, of, a Judgement, of, theHon'ble Apex Court, rendered, in, a case titled as Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra and others, reported in (1990)2 SCC 715. However, the afore drawn minutes, by the Full Court, wherethrough, it declined to accept Annexure P- 12, also cannot weigh, with this Court, as, they are anchored, upon, a verdict, of, the Hon'ble Apex Court rendered, in , Direct Recruit Class II Engineering Officers' Association's case (supra), verdict whereof, for the reasons assigned hereinabove, is, grossly in applicable, vis-a-vis, the factual matrix prevailing hereat. 15. One of us (Hon'ble Mr. Justice Dharam Chand Chaudhary, J.) has also expressed, a, view, that, since subsequent to 2010, the, stream or feeder category of Civil Judges (Senior Division), became compensated rather for earlier purpor....
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....come continued to be reflected, as holding, the, posts concerned, merely on an adhoc basis, (viii) and, conspicuously since 2003, and, upto 2013, all, the afore adhoc posts of Presiding Officers, of, Fast Track Courts, were not en-cadred post(s), rather throughout, the afore period, hence, were ex-cadred post(s). Hence, the, sequel thereof, is, that, a, 34 point roster, was applicable, hence, with all its absolutest clout, and, command, (ix) only vis-a-vis, the en-cadred posts of Additional District Judge(s)/District Judge(s), and, not vis- a-vis, the apposite ex-cadred posts, (x) besides, the, further corollary thereof, is, qua when in commensuration, with, the, canonised 34 point roster, hence, operative upto 2013, whereat the hitherto afore ex-cadred posts, were en-cadred , rather thereupto, only the, co-equal thereto hence en-cadred posts, became available, for,operating thereons rather the commensurate thereto, number(s), of, roster points, for, therethroughs, hence, determining, the • validities, of, all the apposite contentious inductions, conspicuously at the apposite disputed phase(s), and, also for, concomitantly reckonin....
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....fore purported compensatory measures, hence, mitigate the grievance(s), of, the writ petitioners. Now at, the preeminent reason, which prevail(s), upon, the undersigned to validate, the, report, of, Hon'ble Judges Committee, report borne in Annexure P-12, is, grooved in (a) the verdict of the Hon'ble Apex Court rendered in a case titled, as, All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, holding perennial force, and, applicability, and, also, its purveying a continuous, and, also, a, repeated cause, of, action to the aggrieved concerned. (b) the perenniality, of, the verdict, of, the Hon'ble Apex Court, as, rendered in the afore case, necessarily can not be deemed, to, ever slumber or become redundant, and, nor also any purported, slumbering(s), and, acquiescences, ordelays and laches, if any, on the part, of, the writpetitioners, also cannot concomitantly, render halted, the, ever awakened or never slumbering, rather, the absolutest command, and, diktat of the expostulation, of, law, as, pronounced, in, the verdict rendered by the Hon'ble Apex Court,in, a case titled as All India Judges....
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....p; come to the following conclusions: Promotion of fifteen officers under Rule 7(3)(a) cannot be held beyond their quota. The promotion of fifteen officers cannot be s aid to be ad- hoc nor they can be directed to be put at the bot tom of the seniority list. The High Court even though accepted the pri nciple that roster is applicable in the seniority but in the operative portion of the judgment in paragraph 208 did not issue any direction to recast the seniorit y as per the roster given in the Appendix-- B which is an apparent error committed by the High Court. Rule 2007 having been brought in place to gi ve effect to the judgment of this Court in All India Judges association case, (2002) 4 SCC 247, while interpreting the Rules 2007 the direction issued by this courthave to be kept in mind and rules cannot be interpreted in a manner so as to violate the directions issued by this Court in the above judgment. 5) Rule 7(4) read with Appendix-B has to be re ad i....
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....s in the case in hand all the seniority lists w.e.f. 2005 onwards till 2018 have been sought to be quashed. The relief so sought in view of the findings hereinabove is, therefore, highly time barred. 64. Not only this, the private respondents in the case in hand have been selected and appointed to the cadre consequent upon the posts advertized by respondent No. 2 and the selection process in accordance with the Rules followed. They have been selected on the basis of their merit long back i.e. respondentNo. 3 on 18.5.2004 and respondent No. 4 on 17.12.2006. The said respondents being not at any fault can neither be pushed down nor the seniority can be assigned to them below the petitioners, at this belated stage, that too when the petitioners opted for not challenging their selection and appointment during all theseyears. The judgment of the Apex court in Ajit singh & others (II) vs. State of Punjab & ors. (1999) 7 SCC 209 & Maharashtra Vikrikar Karamchari Sangathan vs. State of Maharashtra & another (2000) 2 SCC 552 cited on behalf of petitioners are not applicable for the reason that ratio thereof would have been of some help to th....
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....e writ petition. Learned Single Judge has also rightly held that the writ petitions are bad on account of clubbing of multiple causes of action for the reason that when no relief has been claimed against 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 have been filed within a reasonable time. It is, however, not so for the reasons in detail recorded hereinabove. 18. Much emphasis has been laid, upon, the factum, that, with the purported breaking down, of, the relevant, norm, of "Post Based Roster" by the High Court, for, determining, the inter se seniority, of, the inductees, into service, as, District Judge/Additional District Judge, and, who became drawn, from, the contemplated streams/channels, and, in the per centum contemplated therein, rather becoming condoned, (a) hence, in, compliance, vis-a-vis, the verdict, of, the Hon'ble Apex Court, as, become cited in the report made, by, the Hon'ble Judges', in their meeting convened, in, the year 2016, minutes whereof also became placed, b....
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....ould beget breaches, of, the inflexible mandate, of, Hon'ble Apex Court, as, renderedin a case titled as All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, and, also, vis-a-vis, the afore orders pronounced, in the afore I.As. The afore conclusion gathers strength, from, the striking factum qua rather the afore orders, as, made, upon, the afore I.As, being not strived to bereviewed, upon, anvil, of, the citations, relied, upon, by the Hon'ble Full Court, in, its minutes, hence, drawn, in the year 2016, (a) whereupon, it becomes necessary to conclude, vis-a-vis, the High Court abandoning, the afore ground, and, also its accepting, the afore diktat, as carried, in the orders made in the afore I.As , orders whereof became complied with, by the Hon'ble Judges Committee. Paramountly, also the rule ornorm, as, propounded, in the minutes, of, the meeting of the Full Court, held in the year 2016, is, applicable only, vis-a-vis, statutory rules, however, it is not applicable, vis-a-vis, the hereat finally, conclusively or completely enforceable verdict, as, became rendered by the Hon'ble Apex Court, in, All India Judges' Association &....
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....llant projects a plea that since the `points of difference' framed by the `Tribunal' really and clearly ignores the `real differences' in the opinion of the two Hon'ble Learned Members, especially in the context of arguments advanced by the parties, as recorded in their respective Judgments or Orders, the same are required to be reframed either by the Hon'ble Appellate Tribunal or by the Hon'ble third Member of the `Tribunal', based on the directions of the `Appellate Tribunal'. 42. The Learned Counsel for the 1st Respondent (Mr. Arun Kathpalia) submits that for `an order' of a `Tribunal', there must be some kind of determination of `LIS' and in the instant case there is `no order' which determines the `issues' because of the fact that the Hon'ble Members of the `Tribunal' had rendered a divergence opinion in the subject matter in issue. 43. The Learned Counsel for the 1st Respondent comes out with a plea that `statement of point' is not `an Order' and therefore, it is not `an Appealable' one. Further, the Hon'ble Judicial Member of the `Tribunal', had not examined the `interim orders'. 44. The Learned Counsel for the 1st Respondent points out that Section 419 (5) of the C....
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....rence' to the parties. 50 The Learned Counsel for the 1st Respondent points out that the `Appellants' in the `Appeals' admitted that the `point of difference' was not supplied to the parties and the same is quite clear from Para 5 of the communication dated 11.02.2022 in regard to the `point of difference'. 51. The Learned Counsel for the 1st Respondent submits that as per Section 419 (5) of the Companies Act, 2013, the `Hon'ble Referral Member' is to decide only to the `point(s) of difference' referred to by the `Hon'ble Members' and not power is vested on the `Hon'ble Member' to `add' or `modify' any `point of difference'. 1st Respondent's Decisions: 52. The Learned Counsel for the 1st Respondent cites the decision of Hon'ble High Court of Gujarat in Colourtex V Union of India, reported in (2006) SCC Online Gujarat 478, wherein at paragraphs 17 and 19, it is observed as under: 17.``The provision is therefore comprised of two parts. In a case where the Bench consists of two or more than two members and there is difference of opinion amongst the members who constitute the Bench, the point of difference has to be decided according to the opinion of the majority,....
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....which the two Members of the Bench had divergent view in the split verdict so that the matter is placed before a third Member for hearing and the Company Petition is decided in accordance with the opinion of the majority of the Members who heard the case including the member before whom it is placed. The appeal is accordingly disposed of." 54. The Learned Counsel for the 1st Respondent adverts to the decision of the Hon'ble High Court of Allahabad in Jan Mohammed, Nainital V The Commissioner of Income Tax, reported in (1953) All 119, wherein at paragraphs 5, 6, 7 and 8, it is observed as under: 5.`` The third Member could, therefore, decide only the point that had been referred to him, and he could not formulate a new point for himself on which he could base his decision. It appears to us to be further clear from a reading of the sub-section quoted above that after the decision of the point or points referred to him by the third Member, the case should go back to the original Tribunal because so far as we can see, the third Member has not been given any right to decide the appeal. According to Section 5-A (6) of the Income-tax Act, the appeal must be decided by the Trib....
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....ny Petitioners are maintainable or not'? In short, the `Appellants' are making an endeavour to expand the scope of reference to the `Referral Member' in an `unjustified manner'. 57. The Learned Counsel for the 1st Respondent contends that there is no valid authorization by the `Board of Directors' of the Rs. 1st Respondent companies' to and in favour of Learned Senior Counsel Mr. C. Aryama Sundaram and further that the said Learned Senior Counsel with his instructing Learned Counsel have been illegally instructed by the former delinquent Directors of the 1st Respondent, who no longer are Directors of the 1st Respondent to appear on behalf of the 1st Respondent. 58. It is the clear cut stand of the 1st Respondent that on behalf of the 1st Respondent / Company, Learned Senior Counsel Mr. Arun Kathpalia is validly authorised to `appear' and to `advance' arguments for the 1st Respondent. 59. The Learned Counsel for the 1st Respondent refers to the decision in Hanutram Chandamul V Commissioner of Income Tax (Reference under IT Act, 1922), reported in (1953) Vol. 23 ITR at Page 445, Spl pgs: 446 to 451, wherein, on a `difference of opinion' between Members of the Income Tax Appe....
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....his view. It is not permissible on a correct interpretation of Section 5A(7) to divide the opinions of the Members of the Tribunal into compartments and to make apportionment piecemeal of the figure of assessment which each of the members of the Tribunal has adopted. There is of course an obvious difficulty in applying the principle of the section in a case where there is difference of opinion between the members as regards quantum of assessment. In this respect there is a lacuna in the statute. But it is not the function of a Court to fill in the gap left in an Act of the Legislature, and to speculate with what material the legislature would if it had discovered the gap, filled it in. As section 5A(7) stands at present, we think that the correct interpretation is that the President or the third member to whom the case is referred may only agree with the quantum of assessment taken by one or other of the two differing members and it is not open to him to take a third view as regards quantum of assessment." For these reasons we think that the opinion of the President in this case is not legally valid and that the assessment cannot be legally completed in accordance with the....
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....wo Members' of the `Hon'ble Tribunal' is a `Judicial Order'. Besides these, the Learned Counsel for the 1st Respondent (Mr. Aryama Sundaram) points out that there is a wrongful exercise of the jurisdiction by the `Hon'ble Members' in formulating the `point of difference' dated 11.02.2022, in CP Nos. 112, 113 and 114/KB of 2021 on the file of `National Company Law Tribunal', Kolkata Bench. In short, according to the Learned Counsel for the 1st Respondent (Mr. Aryama Sundaram) that the `Tribunal' had clipped the wings of the 1st Respondent by not making a reference. 64. The Learned Counsel for the 2nd Respondent (in all three `Appeals') submits that the `point of difference' between the `two Hon'ble Members' of the `Tribunal' is on the `aspect of maintainability' and in fact, the reliefs (B) and (C) are covered with relief (C) and they are identical issues and that the single point of difference formulated by the `Tribunal' on 11.02.2022 in Law, is not a matter of an `Appeal' before this `Appellate Tribunal', since there was `no adjudication of LIS' between the parties. "The Learned Counsel for the 2nd Respondent cites the decision in Commissioner of Income Tax Appellate ....
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....int, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided (they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case included who those first heard it). 4.2. The role required to be played by a single Judge is accordingly distinctly marked. This specific role assigned is to confirm either of the decisions on a point of difference. Even in a case where the exact point of difference is not indicated, the Reference Court can formulate and proceed to answer it on a reading of the respective views. Such a role would encompass both fact and law. For concurring with a view of one as against another, the Reference Court can give its own reasons by supplementing it. On the same score, if the ultimate decision is one and the same, but reasons being different, the Reference Court cannot go beyond it. The power available cannot be equated with that of a review nor an exercise resulting in sitting in....
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....essitatis 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." and comes out with a plea that it is a `ministerial act' to glean the `points of difference' in the subject matter in issue. 70. The Learned Counsel for the 4th Respondent submits that the Civil Procedure Code is not attracted and in fact, in the present subject matter, only a resort to the Companies Act, 2013, can be made. 71. The Learned Counsel for the 5th Respondent informs this `Tribunal', that he adopts the arguments of the Learned Counsel for Respondent No.1 Mr. Arun Kathpalia, the arguments of the Learned Counsel for Respondent No.3 Mr. Ramji Srinivasan. 72. The Learned Counsel for the 6th Respondent informs this `Tribunal', that he adopts the arguments of the Learned Counsel of R1 Mr. Aryama Sundaram. 73. The Learned Counsel for the 7th Respondent submits that the `maintainability issue' formulated by the `Hon'ble Tribunal' on 11.02.2022 covers all the four issues touching upon the `aspect of maintainability' and in reality this `Tribunal' is not an `Advance Tribunal'. Furthermore, only when the `Hon....
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....ke Section 419 (5) of the Companies Act, 2013 (under the caption `Benches' of `Tribunal'), and Rule 60 (2) and (3) of NCLT, Rules 2016 (under the head `Matters relating to the Judgments or Orders of the Tribunal'), there is no corresponding specific provision under the Companies Act, 2013, or in NCLAT Rules, 2016, in regard to `Constitution of Bench' when Members are equally divided in passing an `Order' or `Judgment' in a given case. However, for `Removal of difficulties' and `issue of directions', Rule 104 of NCLAT Rules, 2016, enjoins that `Notwithstanding anything contained in the rules, wherever the rules are silent or not provisions is made, the Chairperson may issue appropriate directions to remove difficulties and issue such orders or circulars to govern the situation or contingency that may arise in the working of the `Appellate Tribunal'. It is palatable / desirable in the interest of `Stakeholders', `Litigant Public', `Advocates', Professionals, etc., and quite in the fitness of things, that a suitable provision be brought in under the `Companies Act, 2013', and in `National Company Law Appellate Tribunal Rules, 2016', to deal with a situation of happening of `Contingenc....
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.... (iv) Rule 65 of NCLAT, Rules, 2016, `Restriction on party's right to be heard', says that `the Party who has engaged a Authorised Representative to `appear' for him before the `Appellate Tribunal', shall not be entitled to heard in person, unless permitted by the `Appellate Tribunal'. Code of Criminal Procedure, 1973 : 86. Section 392 of the Code of Criminal Procedure under the caption `Procedure where Judges of Court of appeal are equally divided.' "When an appeal under this Chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion: Provided that if one of the Judges constituting the Bench, or, where the appeal is laid before another Judge under this section, that Judge, so requires, the appeal shall be re- heard and decided by a larger Bench of Judges.'' Pleader: 87. It is to be pointed out that the `Lawyers' / `Advocates' / `Vakils' or `Pleaders' stand on the same footing in regard to their power to act on beha....
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....sed to formulate the `point of difference' in CP Nos. 112, 113 and 114/KB of 2021 regarding the `aspect of maintainability' of each of the Company Petitions before the `Tribunal', in view of the fact that `there is no Registered Shareholding of any of the Petitioner Companies in Respondent No.1 company'. 92. As a matter of fact, the `Hon'ble Judicial Member of the Tribunal', by an `Order' dated 02.07.2021 had allowed the separate demurrer Company Application Nos. 81, 82, 83, 84, 85, 86, 87, 88, 90, 91, 92 and 93/KB/2021, projected by the Respondent Nos. 1 to 3 and 7 and consequently dismissed the CP Nos. 112, 113 and 114/KB/2021. 93. However, the `Hon'ble Technical Member of the Tribunal', through an `Order' dated 02.07.2021, had observed the `issue of maintainability' should be decided after completion of pleadings at a later stage but opined that `prima facie' that the Company Petitions were `maintainable' and granted certain `interim reliefs' claimed therein. `Order' under Civil Procedure Code: 94. Section 2 (14) of the Civil Procedure Code, 2013, defines `Order', meaning `the formal expression of any decision of a Civil Court which is not a decree'. As a matter of f....
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....s a `substantial grievance', a `denial of some personal or pecuniary or private right or imposition upon a person in respect of a `Burden' or an `Obligation'. 101. It cannot be forgotten that if a `person' or a `company' is `Aggrieved'/`Affected', by `an Order' of the `Tribunal' fails / omits to prefer an `Appeal' before the `Appellate / Competent Forum', then, it amounts to `acceptance of such an Order' and in `law' cannot be permitted to `assail the Order' in the proceedings filed by the other side. Inapplicability of Section 98 (2) of Civil Procedure Code: 102. The ingredients of Section 98 (2) of Civil Procedure Code is inapplicable to High Courts, e.g. Punjab and Haryana High Court is governed by `Letters Patent', must be referred a `Third Judge', on a `difference of opinion', between the two Judges even on a `point of fact'. In fact, Section 98 of Civil Procedure Code does not apply to the `Letters Patent Appeal', as per decision 1921 Privy Council 6. Task of Third Judge: 103. It is significantly pointed out by this `Tribunal' that where the conflicting `opinion of two Hon'ble Members, are placed before the `Hon'ble Third Member or Judge', he would consider the....
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....ppellants under Section 323 and of the third appellant under Section 323 read with Section 34 was upheld. In appeal to this Court it was contended (i) that the third learned Judge under Section 429 Cr. P.C. could only, deal with the differences between the two learned Judges and not with the whole case; and (ii) that there was no committee intend on within the meaning of supp I.P.C. on the part of the three appellants to kill A as he was attacked by, mistake. HELD : Dismissing the appeal. (i) Section on of the Criminal Procedure Code, states `that when the judges comprising the Court of Appeal are equally divided in opinion the case with their opinion thereon shall be laid before another Judge of the same Court and such Judge, after hearing, if any, as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such before another Judge, and, secondly, the Judgment and order will follow the, opinion of the third learned Judge. It is, therefore, manifest that the third learned Judge can or will deal with the whole case. (i) Section on of the Criminal Procedure Code, states "that when the judges comprising the Court of Appeal are equ....
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.... 641. 110. In the instant case on hand before this `Tribunal', the `point of difference' `stated / formulated' by the `Hon'ble Members of the National Company Law Tribunal' dated 11.02.2022 in CP Nos. 112, 113 and 114/KB of 2021 is a mere statement upon a `Ministerial Act' and it is neither a `preliminary order' nor `an interlocutory order' and does not partake the character and status of `an Order', as per Section 421 (1) of Companies Act, 2013. Further, the `point of difference' formulated by the `Hon'ble Members of the `Tribunal' on 11.02.2022 does not finally and conclusively determine the `Right of Parties', in quite earnest, as opined by this `Tribunal'. 111. Although, in the instant case, it is argued on the side of the `Appellants' that an `Appeal' lies against `any Order' passed by the `Tribunal' and therefore, the instant Company Appeal Nos. 67, 68 and 69 of 2022 are preferred before this `Tribunal' as against the `Order' dated 11.02.2022 made in CP Nos. 112, 113 and 114 of KB of 2021, because of the fact that the `term' `any proceedings' before the `Tribunal' occurring in Section 420 (1) of the Companies Act, 2013, is wider than `Judicial Proceedings', this `Tribun....