TaxTMI 
TaxTMI 
2025 (8) TMI 808
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....14 of 2025 has been filed challenging order dated 11.07.2025 passed in different IAs in which order has been passed by NCLT, New Delhi Bench (Court - II). 2. Brief facts of the case necessary to be noticed for deciding these Appeal(s) are: Company Appeal (AT) (Ins.) No. 1001 of 2025 (i) The Respondent - KSS Petron (P) Ltd. filed a TA (IBC) - 37(PB)/2025 on line on 09.07.2025, on the same day, the Appellant filed TA (IBC) - 38(PB)/2025 and another IA, i.e. TA (IBC) - 39(PB)/2025 was filed by Kohinoor Crane Services. (ii) On mention made by the Applicants the above Transfer Application i.e TA No.37, 38 and 39 of 2025 were directed to be listed on 10.07.2025, which were shown in the Supplementary Cause List-2 issued for Principal Bench, which coram shows Justice Ramalingam Sudhakar, Hon'ble President. TA Nos.37, 38 and 38 of 2025 were listed at Item Nos.301, 302 and 303. In TA No.37 of 2025, a request has been made to transfer Company Petition No.526 of 2024 titled as KSS Petron Pvt. Ltd. vs. Bhubaneshwar Expressways Pvt. Ltd. from NCLT, New Delhi Bench (Court - II) to Mumbai Bench; Whereas in TA No.38 of 2025 filed by Sayam Shares and Securities (P) Ltd. (Appe....
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....s been paid. E. And pass such other order or orders the directions as Hon'ble Appellate Tribunal may deem fit in the facts and circumstances of the case." Company Appeal (AT) (Ins.) No. 1014 of 2025 (i) A Company Petition under Section 7 of Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the "IBC") has been filed by Respondent - KSS Petron Pvt. Ltd. ("KSS Petron"), which Company Petition was filed by the Liquidator of KSS Petron claiming to the Financial Creditor of Bhubaneshwar Expressways (P) Ltd. - the Corporate Debtor ("CD"). The Company Petition under Section 7 was admitted vide order dated 09.12.2024 by NCLT, New Delhi Bench (Court - II), appointing an IRP. In the above Company Petition an application has been filed by the Appellant for recall of the admission order. (ii) TA No.37 of 2025 was filed before the President, seeking transfer of Company Petition (IB)-526/ND/2024 from NCLT, New Delhi Bench (Court - II) to NCLT Mumbai, on which application an order was passed by the President on 10.07.2025. Various applications in Company Petition (IB)- 526/ND/2024 were listed before the NCLT, New Delhi Bench (Court - II) on 11.07.20....
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....7 from Mumbai Bench to NCLT, New Delhi Bench (Court - II). It is submitted that no Applicant is entitled for any interim order in the Transfer Application without showing any prejudice to the Applicant and in the present case, no prejudice has been shown by the Applicant of TA No.37 of 2025. 5. Learned Counsel for the Respondent appearing for KSS Petron opposing the submissions of the Appellant submits that order passed by the President, NCLT is an order in exercise of jurisdiction under Rule 16(d) of the NCLT Rules, 2016 ("Rules") and no appeal is maintainable under Section 61 of the IBC. It is submitted that the order dated 10.07.2025 was passed by the President after hearing both the parties, including the learned Counsel for the Appellant, who appeared through VC, when the case was called and also appeared physically subsequently. It is submitted that the TAs were listed before the President and after rising of the Division Bench, the Hon'ble President assembled and took up the TAs filed under Rule 16(d), in which order was passed by the President, directing the TAs to be listed on 18.07.2025. The parties were asked to file hard copies and to cure the defects. The Hon'ble Pr....
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....ion, which needs to be considered is regarding nature of the order passed on 10.07.2025, as to whether the order dated 10.07.2025 is purely an administrative order, while passing which order, there is no jurisdiction in the President to pass any kind of interim directions, as is said to have been done in the order dated 10.07.2025. 9. We need to first notice the Rule 16(d) of NCLT Rules, 2016, which deals with functions of the President. Rule 16 of the NCLT Rules, 2016 is as follows: "16. Functions of the President.- In addition to the general powers provided in the Act and in these rules the President shall exercise the following powers, namely:- (a) preside over the consideration of cases by the Tribunal; (b) direct the Registry in the performance of its functions; (c) prepare an annual report on the activities of the Tribunal; (d) transfer any case from one Bench to other Bench when the circumstances so warrant; (e) to withdraw the work or case from the court of a member. (f) perform the functions entrusted to the President under these rules and such other powers as my be relevant to carry out his duties as head o....
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.... Tribunal from an order made by the Tribunal with the consent of parties. (3) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order of the Tribunal is made available to the person aggrieved and shall be in such form, and accompanied by such fees, as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. (4) On the receipt of an appeal under sub-section (1), the Appellate Tribunal shall, after giving the parties to the appeal a reasonable opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (5) The Appellate Tribunal shall send a copy of every order made by it to the Tribunal and the parties to appeal." 12. Section 61 of the IBC as noticed above provides for an appeal against order passed by adjudicating authority und....
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....f work is under general and special order of the President. Conducting the business of NCLT, Principal Bench and its different Benches is vested in the President and the work distribution and listing of cases under general and special order. Thus, the power of the President to direct for distribution of work and listing of cases before the Principal Bench and different Benches of the NCLT is administrative powers vested in the President. The question raised in these Appeal(s) is nature of jurisdiction of the President, which is exercised on a Transfer Application, which is filed for transfer of one case from one Bench to another Bench. In the present case, TA Nos.37, 38 and 39 of 2025 were the TAs, which were listed before the President of the NCLT. In the Cause List, which was issued on 10.07.2025 before the NCLT Principal Bench, Division Bench-I, a Supplementary List-2 was published with coram Justice Ramalingam Sudhakar, Hon'ble President, where TA Nos.37, 38 and 39 of 2025 were listed. It is useful to extract the coram and Supplementary List-2, which is to the following effect : CORAM: JUSTICE RAMALINGAM SUDHAKAR, HON'BLE PRESIDENT SUPPLEMENTARY LIST-2: 301 TA (IBC)....
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....ber, exercises the jurisdiction of a Bench as per Section 419 sub-section (3) proviso. Further, when the TAs are listed in the Court, which is shown in the Cause List, which are matters to be considered by Bench of Hon'ble President, who is a Judicial Member sitting singly and the TAs, which are filed by the Applicants for transfer of a case from one Bench to another Bench, is thus business of a Court. Thus, when the President decides the applications, which are listed in the Court before the President as coram of a Bench, passing an order by the President are judicial order and thus, orders passed by the President sitting in the Court are not administrative order. Although, as noted above, the President has administrative jurisdiction conferred under the Rules to direct the distribution of business, listing of cases and transfer of cases, but when the said power is exercised on an Application filed for transfer by an Applicant and the matter is listed in the Court for consideration of business of the Court, on which any order passed by the President is a judicial order. In this context, we need to notice a judgment of the Hon'ble Supreme Court in (2009) 1 SCC 130 - Jitendra Singh ....
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....scretionary power. A court acting under Section 24 CPC may or may not in its judicial discretion transfer a particular case. Section 24 does not prescribe any ground for ordering the transfer of a case. In certain cases it may be ordered suo motu and it may be done for administrative reasons. But when an application for transfer is made by a party, the court is required to issue notice to the other side and hear the party before directing transfer. To put it differently, the court must act judicially in ordering a transfer on the application of a party. In the instant case the reason which has weighed with the High Court for directing transfer does not really make out a case for transfer." 17. The above judgment of the Hon'ble Supreme Court carves out clear distinction of two powers, i.e., executive power as well as judicial power. 18. The Division Bench of the Bombay High Court in Lawyers' Forum for General Utility & Litigating Public, Aurangabad, Through its President vs. State of Maharashtra and Ors. - (2014) SCC OnLine Bom 1849 has elaborately dealt on the subject. In the above case, the power of the Chief Justice of the High Court with respect to transfer of cases to....
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....in the circumstances be no doubt that the order of the Chief Justice was, if not judicial, at least quasi- judicial." In Paragraph 19, the Apex Court held thus : - "19. He was, therefore, acting as an adjudicating body empowered by the Constitution to discharge judicial functions. We would accordingly hold that the Chief Justice while exercising jurisdiction under para 14 of the 1948 Order, acts as a judicial authority with all the attributes of a Court and his order is, therefore, amenable to correction under Article 136." 48. Thus, it is clear that the Apex Court was dealing with a case where a regular Application for transfer of a case from Lucknow Bench to Allahabad was made to which an objection was raised by the Petitioner before the Apex Court. The Apex Court in the context of the fact that the Hon'ble the Chief Justice had passed an order after hearing the parties observed that there was nothing executive in the procedure followed in the case. Considering the procedure followed in the case by the Hon'ble the Chief Justice that the Apex Court held that the Hon'ble the Chief Justice was acting as a judicial authority with all the attribu....
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.... passed by the President on an application filed by an Applicant for transfer of case from one Bench to another Bench and the said application is listed in the Court for hearing, the Hon'ble President has to act judicially in considering the application and any order passed in the said application is an order of judicial nature and is an order passed by NCLT amenable to an appeal. 22. In view of the foregoing discussions, we hold that the order passed by the President dated 10.07.2025 in TA Nos.37, 38 and 39 of 2025 is order passed by NCLT, which is an order of a judicial nature and is amenable to an appeal under Section 421 of the Companies Act. 23. Learned Counsel for the Appellant has taken exception to the observation made by the President in paragraph 13, where the President has requested the NCLT, New Delhi Bench (Court - II) and Mumbai Bench to defer the proceedings. It is useful to extract paragraph 13 of the impugned order dated 10.07.2025, which is as follows: "13. As to the merit of the plea as stated by both sides, it is apparent that they want transfer from NCLT, New Delhi to NCLT, Mumbai and vice versa on various issues as can be discerned from the oral....
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....Sitting hours.- The sitting hours of the Tribunal shall ordinarily be from 10:30 AM to 1:00 PM and 2:00 P.M. to 4:30 PM, subject to any order made by the President." 27. The President, NCLT in its order dated 10.07.2025 has noticed that on mentioning by the parties on 09.07.2025, the matters were listed on 10.07.2025, when the parties sought urgent hearing and mentioned the Court to hear the matter and Court has fixed the matter on next date, i.e. 10.07.2025, which were shown in the Cause List and cases were listed in Supplementary List-2, which was after the business of Division Bench as well as matters listed in Supplementary List-1. Even if, the Court proceeds to consider the business listed in the Court during lunch hours, which obviously was under the order of the President and information to the parties, the order passed on 10.07.2025 cannot be faulted on the above ground. Sitting hours as mentioned in Rule 9 uses the word 'ordinarily'. When the party mentions for taking up the matter on very next date and the Court after notice to both the parties, hear the matter, during lunch hours, the order cannot be faulted on this ground as submitted by the Appellant. Furthermore, t....
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....D/2025, IA-2879/ND/2025 : Mr. Deepak Khosla, Ld. Counsel could fairly produce a copy of order dated 10.07.2025 passed by Hon'ble President. As can be seen from the order, indubitably TA(IBC)/37/PB/2025 has been filed by KSS Petron Pvt. Ltd. seeking transfer of the present proceeding from this Bench to Mumbai Bench. Similarly, TA(IBC)/38/PB/2025 has been preferred by Sayam Shares and Securities (P) Ltd. seeking again for transfer of present proceedings to Mumbai Bench. TA(IBC)/39/PB/2025 has been preferred by Kohinoor Crane Service, seeking transfer of CP/IB/1374/MUM/2017 from NCLT Mumbai Bench to this Bench. Once any of the parties has initiated the process for transfer of pending proceedings from a particular Bench, to upkeep the credibility of the judicial system, fairness and impartiality, it is incumbent upon the Court not to take up the matter for hearing till the process initiated for transfer of pending proceedings is culminated. We are of the considered view, that any attempt to take up a matter for which any of the parties have moved process for transfer from that Bench would give rise to doubt in the mind of the parties. In the....