TaxTMI 
TaxTMI 
2022 (9) TMI 173
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....solvency and Bankruptcy Code, 2016 (in short 'Code') by 'M/s Feedback Highways OMT Pvt. Ltd.' (Operational Creditor) against the Supreme Infrastructure BOT Pvt. Ltd. (Corporate Debtor) in respect of an amount of Rs. 1,18,24,435/- was admitted and the subsequent proceedings were carried out by the Adjudicating Authority in terms of Section 13 of the Code vide order dated 25.02.2022. 2. Shorn of unnecessary details, the Operational Creditor had issued a demand notice in terms of section 8 of the Code alongwith invoices (statement of outstanding amount) and thereafter filed the application under Section 9 of the Code which was admitted but at the same time it was observed that: "18. That Section 9(4) prescribes initiation of Corporate Insolvency Resolution by proposing name of Insolvency Professional. In this case the Petitioner has not proposed the same. Hence, in a situation when the name of IRP is not proposed, a provision is prescribed in Section 16(3) of the Insolvency code that where the application for CIRP is made by an Operational Creditor and no proposal for an IRP is made, the Adjudicating Authority shall take a reference to the Board for the recommendation of an insolve....
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....n was dismissed with the following orders: "C.P. (IB) -1350/MB/2019 Both sides present. It is reported that a CIRP Petition was admitted against the same Corporate Debtor in TCP-2736/2017 by DB-II by NCLT on 10.09.2018. In view of this, this Petition is dismissed as infructuous." 5. Counsel for the Respondent has pointed out that they wrote a letter to the Registrar of the NCLT, Mumbai Bench, on 26.12.2019 seeking permission to submit a miscellaneous application for appointment of IRP in pursuance of order dated 10.01.2018 and accordingly filed the I.A. No. 1550 of 2021 for appointment of the IRP. According to the Appellant, it was at this stage they came to know about the order dated 10.01.2018 but ultimately I.A. No. 1150 of 2021 was disposed of on 25.02.2022 with the appointment of Poonam Basak as IRP who was appointed with the consent of both the parties. It is pertinent to mention here that even till that time the Insolvency and Bankruptcy Board of India (IBBI) did not make any recommendation. 6. Counsel for the Appellant has submitted that the arguments in the application TCP No. 273 of 2017 were heard on 26.07.2017 by a Bench of Shri M.K Shrawat, Member (J) and Shri ....
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.... of Mr. M.K Shrawat, Member (Judicial) and Mr. Bhaskara Pantula Mohan, Member (Judicial) is patently illegal, inter alia, on the ground that the order has been passed by both the Judicial members which is violative of Section 419 (3) of the Companies Act, 2013 which provides that the Tribunal shall exercise its power by a bench of two members out of which one shall be a technical member. At this stage, Counsel for Respondent No. 1 has drawn our attention to Section 431 of the Companies Act, 2013 to contend that the order of the Adjudicating Authority shall not be invalid merely on the ground that there is a defect in the constitution of Tribunal or Appellate Tribunal as the case may be. 9. Counsel for the Appellant has argued with all vehemence that the order dated 10.01.2018 is unsustainable in law because it violates the principle of natural justice in as much as the principle that one who hears the lis should decide. It is submitted that as per the evidence brought on record it is apparent that the application under Section 9 was heard by a bench different from the bench who had pronounced the order. 10. In reply, Counsel for the Respondent has submitted that though it is a fa....
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....vt. Ltd. Vs. The Registrar, NCLT, CA (AT) (Ins) No. 133 of 2021, in which it is held that: "22. It is to be relevantly mentioned that 'Pronouncement of Order' is quite distinct from communicating/informing/intimating a deliverance of an order. At any cost, 'Tribunal' cannot dispense with justice. In reality, it must discharge its duties/function with a sole aim and purpose of 'Dispensing Justice'. 23. If an order/judgment is delivered by a 'Tribunal' ignoramus of rules, then, it will result in untold hardship, misery and unerringly leading to a miscarriage of justice. Moreover, 'expediency in pronouncement' of an 'Order'/'Judgment' by a 'Tribunal' is not desirable/palatable, in the earnest opinion of this 'Tribunal'. 24. No wonder, a Judgment/Order of a Court of Law/'Tribunal'/'Appellate Tribunal' is to be written only after deep travail and positive vein. The term 'communication' means making known or sharing or imparting. In legal parlance, it means to officially or solemnly, to declare or affirm as affirm the pronouncement of an 'Order'/'Judgment'. It is to be remembered that pronouncement of an 'Order'/'Judgment' of a Court of Law/a Tribunal is not an empty ritualistic ....
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....NCLT, Rules 2016 in which it is provided that "every order of the Tribunal shall be in writing and shall be signed and dated by the President or Member or Members constituting the Bench which heard the case and pronounced the order. 16. Thus, from the resume of the aforesaid facts and circumstances, it is clear to us that law does not permit that the case is heard by one entity and the order is pronounced by another who has not heard the case at all. In such circumstances, the question posed hereinabove is hereby answered in favour of the Appellant and it is held that the order dated 10.01.2018, having been passed by a bench in which one of the member was not a member of the bench who had heard the matter at the time when it was reserved, is patently illegal and void ab-initio. 17. Counsel for Respondent has then vehemently argued that the present appeal is not duly constituted as it has been filed against the order dated 10.01.2018 on 26.02.2022 which is beyond the period of limitation prescribed under Section 61 of the Code. He has vehemently argued that as per the scheme of the Code, the remedy of appeal to challenge the order of the Tribunal before the Appellate Tribunal is p....
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....ion 9(5) of the Code in which it is provided that "the Adjudicating Authority shall within fourteen days of the receipt of the application under sub-section(2) by an order -(i) admit the application and communicate such decision to the operational creditor and the corporate debtor. 20. Counsel for the Appellant has submitted that not only that the order was pronounced by a bench which was not authorised to do so but also there was lack of communication on the part of the Adjudicating Authority regarding the information about the impugned order. It is further submitted that the Respondent was itself making enquiries from the Tribunal about the appointment of IRP on the recommendation of IBBI and asking about the permission to submit an application for seeking appointment of the IRP in terms of the order dated 10.01.2018. It is contended that after the order dated 10.01.2018 was passed, not only the Appellant was in dark but the Respondent was also totally ignorant about the proceedings which were taking place after passing of the order of admission. It is further submitted that IBBI did not recommend any IRP and firstly, there was miscommunication on the part of the Tribunal and se....
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....used to defeat the substantive objective of a legislation that has an impact on the economic health of a nation" 21. He has put emphasis on the issue of pronouncement of the order to contend that the certified copy which is required for the purpose of filing the appeal in order to count the limitation can only be obtained after the pronouncement of the order where as in the present case there was no pronouncement. 22. While controverting the arguments of the Respondent regarding the knowledge of the order dated 10.01.2018 having obtained from the order passed in CP No. 1350 of 2019, it is submitted that they were present but the number of the appeal and the date of the order was wrongly mentioned, therefore, it could not be deciphered as to whether it pertains to the present case or not. Counsel for the Appellant has also relied upon a decision rendered in the case of Iqbal Ismail Sodawala Vs. The State of Maharashtra and Ors., 1974 AIR 1880, and State of UP Vs. Lakshmi Ice Factory &Ors., 163 AIR 399, "10.The above decision was referred to by this Court in the case of Surendra Singh &Ors v. The State of Uttar Pradesh(2) and it was observed that section 537 of the Code of Crimi....
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....dustrial Tribunals to the Appellate Tribunal established under it. Clause 31 therefore makes a decision of the Tribunal on a reference to it final subject to an appeal if any allowed under the Industrial Disputes (Appellate Tribunal) Act, 1950. Under a. 7 of the Act of 1950, an appeal shall lie to the Appellate Tribunal from any award or decision of an Industrial Tribunal concerning certain specified matters. Now an Industrial Tribunal mentioned in s. 7 includes a Tribunal set up under a State law which law does not provide for an appeal : see a. 2(o)(iii) of the Act of 1950. The U. P. Act does not provide for any appeal expressly but cl. 31 of the Statutory Order makes a decision of the Tribunal final subject to the provisions of the Act of 1950. It would therefore appear that an appeal would lie under the Act of 1950 to the Appellate Tribunal constituted under it from a decision of a Tribunal set up under the Statutory Order. Now under a. 10 of the Act of 1950, an appeal is competent if preferred within thirty days from the date of the publication of the award where such publication is provided for by the law under which the award is made, or from the date of the making of the aw....
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....2 and the present appeal was filed within no time by the Appellant before this Tribunal not only to challenge the order dated 10.01.2018 but also the order dated 25.02.2022 which is, as a matter of fact an order passed in continuation of the order dated 10.01.2018 because mere admission of the application filed under Section 9 of the Code is of no consequence. 24. Thus, in our considered opinion, the appeal filed by the Appellant is well within the period of limitation even against the order dated 10.01.2018 because the said order was never pronounced to the knowledge of the Appellant and by the bench competent to do so and as such it could not have been challenged by the Appellant earlier within the time prescribed by Section 61 of the Code. 25. Thus, in view of the aforesaid facts and circumstances, the appeal is hereby allowed and the impugned orders dated 10.01.2018 and 25.02.2022 are set aside. Before we part with this order, it would be relevant to refer to an order dated 02.03.2022 passed by this Tribunal, at the time of preliminary hearing. The said order is reproduced as under:- "This Appeal has been filed against two orders dated 10.01.2018 as well as 25.02.2022 passe....