Gujarat High Court
Ramchandra D. Chaudhary vs Adjudicating Officer on 22 July, 2019
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/1432/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1432 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 10629 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1432 of 2019
==========================================================
RAMCHANDRA D. CHAUDHARY
Versus
ADJUDICATING OFFICER
==========================================================
Appearance:
THAKKAR AND PAHWA ADVOCATES(1357) for the Appellant(s) No. 1
for the Respondent(s) No. 1
MR ZUBIN F BHARDA(159) for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 22/07/2019
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE) Issue notice returnable on 30.07.2019. Learned counsel Mr. Zubin Bharda waives service of notice for respondent No.2.
Heard learned counsels for the parties.
The following observations are made by learned Single Judge in paras 9 and 10 of oral order dated 26.06.2019 passed in Special Civil Application No.10629 of 2019:
Page 1 of 3 Downloaded on : Tue Jul 23 22:52:52 IST 2019 C/LPA/1432/2019 ORDER"9. What is held by the Apex Court is the jurisdiction to decide application under Section 60 of the Code, but does not bar jurisdiction under Article 226, where no decision is taken on an application under Section 60 by the NCLT. In the instant case, on one hand, application is filed and pending whereas on the other hand, if the COC is permitted to proceed further, it may amount to frustrating the legitimate right of a creditor, more so in the instant case where the IRP has itself in its report has treated Time Sharing Members as financial creditors and gave voting share. Thereafter, without giving opportunity of hearing to the petitioner, cannot suo motu treat them as corporate creditors to take away whatever right is available to them in their capacity as financial creditors. This issue which precisely is to be decided by the NCLT in the application filed by the petitioner. This Court is therefore of the opinion that the COC meeting cannot be permitted to be proceeded unless petitioner is given a fair chance to get his grievance adjudicated by the NCLT.
10. With a view to meet with time line as prescribed by the Apex Court and at the same time, balance rights of the petitioner, it is appropriate to direct the petitioner to complete formalities in connection with application under Section 60 of the Code being CP No.(IB) 127/NCLT/AHM/2017 on or before 29.06.2019. The NCLT thereafter to consider and finally decide the application of the petitioner under Section 60 of the Code on or before 09.07.2019."Page 2 of 3 Downloaded on : Tue Jul 23 22:52:52 IST 2019 C/LPA/1432/2019 ORDER
We are informed that hearing before the National Company Law Tribunal is fixed on 24.07.2019.
Having regard to the object and purpose of establishing National Company Law Tribunal and National Company Law Appellate Tribunal under The Companies Act, 2013 and powers to be exercised by them, the National Company Law Tribunal shall proceed with the matter on merit and in accordance with law without being influenced by the observations made in paras 9 and 10 of oral order dated 26.06.2019 in Special Civil Application No.10629 of 2019.
Direct service is permitted.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) P. SUBRAHMANYAM Page 3 of 3 Downloaded on : Tue Jul 23 22:52:52 IST 2019