TaxTMI 
TaxTMI 
2024 (4) TMI 634
X X X X Extracts X X X X
X X X X Extracts X X X X
....lication No.8 59 of 2024 filed by the Petitioners. 2. The case of the Petitioners in the Petition is as follows:- A] On 3rd September 2016 an Extra Ordinary General Meeting ("EOGM") of Petitioner No. 1 was held whereby Jagdischandra Mansukhani and his associates/family members ("JCM group") were removed from the board of the Petitioner No. 1-Company due to various acts of mismanagement. B] Between 2018-2021, the Registrar of Companies, Mumbai ("ROC") refused to take on record the forms for the removal of the JCM group since Petitioner No. 1 was marked to be under "Management Dispute". C] On 30th March 2021, Respondent No. 3, which is a non-banking finance company, filed Company Petition No. 312 of 2021, under Section 7 of the Insolvency and Bankruptcy Code, 2016 ("IBC"), before the NCLT. The said Company Petition was not served upon the present directors of Petitioner No. 1 but on the JCM group and the JCM group's Advocates filed their Vakalatnama on behalf of Petitioner No. 1 in the matter. D] In December 2021, Man Industries (India) Limited filed Writ Petition (L) 4798 of 2021 before this Court inter alia seeking an order directing the ROC t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 7th November 2023, a Resolution was passed by the Board of Petitioner No. 1 to remove Priyal Manek and Anita Mansukhani who were illegally appointed by the erstwhile management of Petitioner No. 1. This Resolution has also not been challenged before any Court or Tribunal. L] Thereafter, the NCLAT passed an Order dated 7th November 2023 in the Appeal filed by Respondent No. 3 against the NCLT Order dated 24th February 2023 and directed NCLT to decide the issue of limitation afresh by permitting Respondent No. 3 to file an Additional Affidavit to bring on record additional documents and by permitting Petitioner No. 1 to file a Reply to the Additional Affidavit and documents. Petitioner No. 1 was represented before the NCLAT by its true and correct representatives and not by the JCM group or their Advocates. M] By a Resolution passed by the Board of Petitioner No. 1, the Board revoked all authority granted to the Advocates appointed by the JCM group to represent Petitioner No. 1. This Resolution has also not been challenged before any Court. N] By an Order 18th December 2023, passed by NCLT, the Company Petition filed by Respondent No. 3 was restored. Peti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te, was reserved for orders. V] On 12th March 2024, the present Writ Petition was filed. W] By an Order dated 22nd March 2024, the NCLT admitted the Company Petition filed by Respondent No. 3 and rejected the said Interlocutory Application No. 859 of 2024 filed by Petitioner No. 1 for change of Advocate. 3. It is on this case that the Petitioner has challenged the Order dated 22nd March 2024 passed by the NCLT, and, in particular, the rejection of Interlocutory Application No. 859 of 2024 by the NCLT in the said Order. 4. Ms. Singhania, the learned Counsel appearing on behalf of the Petitioners, referred to that part of the Order dated 22nd March 2024, which rejected Interlocutory Application No. 859 of 2024 filed on behalf of the Petitioner No. 1. The said part of the Order reads as under:- "Interlocutory Application No. 859/2024. a) The present Interlocutory Application No. 859/2024 is filed u/s 60(5) of the IBC r/w Rule 11 of the National Company Law Tribunal Rules, seeking the following prayers: i. That this Hon'ble Tribunal be pleased to order and direct the registry to take on file and record the vakalatnama signed by the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uthorised to represent Petitioner No. 1-Company, was contrary to Rule 120 of the National Company Law Tribunal Rules, 2016 ("NCLT Rules") which read as under:- "120. Consent for engaging another legal practitioner.-: A legal practitioner proposing to file a Vakalatnama or Memorandum of Appearance as the case may be, in any pending case or proceeding before the Tribunal in which there is already a legal practitioner or authorised representative on record, shall do so only with the written consent of the legal practitioner or the authorised representative on record or when such consent is refused, with the permission of the Tribunal after revocation of Vakalatnama or Memorandum of Appearance as the case may be, on an application filed in this behalf, which shall receive consideration only after service of such application on the counsel already on record." 6. Ms. Singhania submitted that, in the light of Rule 120, it was imperative upon the NCLT to decide as to who would be entitled to represent the Corporate Debtor, i.e., Petitioner No. 1, before the NCLT. However, despite the same, the NCLT had refused to consider the same issue. 7. Ms. Singhania, further submitted t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....not. Ms. Behramkamdin submitted that, in the present case, since, according to the Petitioners, the earlier Advocate refused to give consent to Advocate Devanshu Desai to file his Vakalatnama, the appropriate course for the Petitioner to adopt under Rule 120 was to make an Application to the NCLT for revocation of the Vakalatnama and serve the said Application on the earlier Advocate. However, although Petitioner No. 1 had filed such an Application, it had not followed the procedure provided under Rule 120 and have not served the same on the earlier Advocate. Ms. Behramkamdin submitted that, in these circumstances, the NCLT was correct in rejecting Interlocutory Application No. 859 of 2024 filed by Petitioner No. 1. 11. Ms. Behramkamdin submitted that Respondent No. 3 had an apprehension that the two groups seeking to control Petitioner No. 1-Company were creating disputes so as to deprive Respondent No. 3, who is the financial creditor, from proceeding further in the Petition filed by it under Section 7 of the IBC. Ms. Behramkamdin submitted that, for this reason also, no interference is called for in the said Order dated 22nd March 2024. 12. Further, Ms. Behramkamdin veheme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ernate remedy and this Writ Petition should be entertained. The first judgement referred to by Ms. Singhania is the judgement of this Court in Kamal K. Singh (supra). Ms. Singhania referred to paragraphs 37 to 41 of the said Judgement, which read as under:- "37. We have summarised these principles only to deal with the submissions of Mr. Kadam that in this case we should not entertain the petition simply because there is an alternate and equally efficacious remedy of appeal to the NCLAT and thereafter to the Hon'ble Supreme Court. 38. Mr. Kadam's arguments overlook the fact that if these principles summarised above are attracted; the writ cannot be refused. The writ cannot be refused only because the party resisting the writ petition urges that there are alternate and equally efficacious remedies available to the petitioner approaching this court seeking a writ of certiorari to challenge the adverse order. As has been succinctly clarified by the Hon'ble Supreme Court that this writ of certiorari goes to a court. It may be issued at the request of parties, but it is not a writ which can be claimed by the parties. It is a writ which is directed or addres....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the case of Nivedita Sharma vs. Cellular Operators Association of India and Ors. There, the facts were noted in paras 2 and 3. Respondent nos. 1, 2, 4 and 5 and one Rajiv Arora filed writ petitions for quashing the order passed by the State Commission set up under the Consumers Protection Act, 1986. The operation of the order impugned in that writ petition was stayed by the Division Bench. Thereafter, there were further developments and noted in para 6. The further developments also were impugned in a writ petition filed before the same High Court. The Division Bench of the High Court disposed of all the petitions and set aside the directions in the order of the State Commission. The Division Bench also expunged the remarks contained in para 13.1 of the order. It is in these circumstances that the Hon'ble Supreme Court examined the rival contentions and particularly that the Division Bench of the Delhi High Court committed error by entertaining the writ petition ignoring the fact that the 1986 Act is a Code in itself and the remedy of appeal available against the order passed by the State Commission is an equally efficacious remedy. The Hon'ble Supreme Court also noted the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t was the only grievance or complaint raised before us. There are more fundamental and basic issues involved and which require our interference in writ jurisdiction." 17. The second judgement referred to by Ms. Singhania is the judgement of the Supreme Court in Kalpraj Dharamshi and Anr. (supra). Ms. Singhania referred to paragraphs 68 and 75 of the said judgement, which read as under:- "68. Coming to the facts of the present case, immediately after NCLT pronounced its judgment on 28-11-2019 and even before the certified copy was made available on 18-12-2019, KIAL had filed writ petition before the Division Bench of the Bombay High Court on 11-12-2019 on the principal ground, that the procedure followed by NCLT was in breach of principles of natural justice. Such a ground could be legitimately pursued before a writ court. In that sense, it was not a proceeding before a wrong court, as such. Perusal of the Judgment and order dated 28-1-2020, passed by the Division Bench of the Bombay High Court, which dismissed the writ petition on the ground of availability of alternate and equally efficacious remedy would reveal, that the said writ petition was hotly contested between ....