Gujarat High Court
Sonu Cargo Movers (I) Pvt. Ltd vs Wind World (India) Limited Through Its ... on 1 August, 2020
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/SCA/9118/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9118 of 2020
======================================================
SONU CARGO MOVERS (I) PVT. LTD
Versus
WIND WORLD (INDIA) LIMITED THROUGH ITS RESOLUTION
PROFESSIONAL SHAILEN SHAH
======================================================
Appearance:
MR ANSHIN DESAI, SENIOR ADVOCATE for MR. JAIMIN R
DAVE(7022) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,10,11,12,2,3,4,5,6,7,8,9
======================================================
CORAM: HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 01/08/2020
ORAL ORDER
[1.0] Shri Anshin Desai, learned Senior Advocate tendered draft amendment, which is hereby granted. Learned advocate for the petitioner is directed to carry out the amendment at the earliest.
[2.0] This petition is filed for the following prayers:
(B) Be pleased to issue writ in the nature of mandamus or any other writ /order/direction to National Company Law Tribunal at Ahmedabad, to conduct the proceedings in all applications in CP(IB) no.14 of 2018 by physical hearing as and when the same is permitted by the National Company Law Tribunal, Delhi Principal Bench, State of Gujarat and other authorities in light of COVID-19 pandemic.
(C) Be pleased to issue writ in the nature of mandamus or any other writ /order /direction to quash and set aside the order dated 21.07.2020 passed by the National Company Page 1 of 6 Downloaded on : Sat Aug 01 23:23:01 IST 2020 C/SCA/9118/2020 ORDER Law Appellate Tribunal at New Delhi in CA (AT) (I) No.576 of 2020.
(D) Be pleased to issue writ in the nature of mandamus or any other writ /order /direction to quash and set aside the order dated 27.07.2020 passed by the National Company Law Tribunal, Ahmedabad in CP(IB) No.14 of 2018 and connected matters.
(E) Pending admission, hearing and final disposal of this petition, be pleased to stay the proceedings in CP(IB) No.14 of 2018 and connected matters pending before National Company Law Tribunal, Ahmedabad.
[3.0] Heard Shri Anshin Desai, learned Senior Advocate for Shri Jaimin Dave, learned Advocate for the petitioner. Referring to various decisions in the case of Union of India (UOI) and Ors Vs. Debts Recovery Tribunal Bar Association and Ors. reported in (2013) 2 SCC 574, in the case of Chandra Kumar Vs. Union of India (UOI) and Ors. reported in (1997) 3 SCC 261, judgment of the Division Bench of this Court in the case of Bank of Maharashtra Vs. Siddhi Vinayak Logistic Limited rendered in Special Civil Application No.16404 of 2015 and decision of the Bombay High Court in Writ Petition No.3250 of 2019, Shri Anshin Desai, learned Senior Advocate submitted that this Writ Petition is maintainable challenging the order impugned in this petition before this Court and this Court has jurisdiction to entertain the same.
[3.1] Drawing attention of the Court to page 14 paragraph 28 of the petition it is submitted that on 27.07.2020 what transpired before the National Company Law Tribunal, Ahmedabad (hereinafter referred to as Page 2 of 6 Downloaded on : Sat Aug 01 23:23:01 IST 2020 C/SCA/9118/2020 ORDER 'the adjudicating authority") about his grievance from the sequence of event as stated on oath in this petition. He submitted that the hearing before the adjudicating authority partly by physical presence of certain advocates or partly through Video Conference is not feasible and should not be allowed to be continued as it may affect the rights of the parties. Therefore it should not permitted.
[3.2] Drawing attention of the Court at page 124, Office Memorandum issued by the Registrar, NCLT Delhi, he has submitted that all the Hon'ble Members of the NCLT were directed to attend the office with immediate effect and carry out the work, including hearing through Video Conference etc. from the office.
[3.3] Drawing attention of the Court to page 127, which is the order passed by the National Company Law Appellate Tribunal, New Delhi in Company Appeal (AT) (Insolvency) No.576 of 2020 dated 21.07.2020, (hereinafter referred to as 'NCLAT''), he has submitted that it is stated at bar before NCLAT that the matter is now listed on 27.07.2020 for hearing through virtual mode. Further it was submitted that the web platform, which is adopted for conducting the hearing of the adjudicating authority, is not compatible and sometimes some advocates are being shunted out of the hearing or muted by the authority and sometimes it is difficult to get connected with the platform, and therefore, he has prayed for in prayer (B) paragraph 35 to conduct the proceedings in all applications in CP (IB) No.14 of 2018 by the adjudicating authority at Ahmedabad by physical hearing as and when the same is permitted by NCLT, Delhi and other authorities in light of COVID 19 pandemic. In short, though his prayer is for physical hearing in this petition, seeking direction to the adjudicating authority for the same, orally he has submitted that he is not averse to hearing through Video Conference. However, his grievance is that it should not be Page 3 of 6 Downloaded on : Sat Aug 01 23:23:01 IST 2020 C/SCA/9118/2020 ORDER partly physical and partly through virtual hearing.
[3.4] Drawing attention to the press note issued by the High Court of Gujarat dated 27.07.2020, Shri Anshin Desai, learned Senior Advocate submitted that in a phased manner physical filing and hearing is permitted by the High Court also. Therefore he has submitted that the petition be entertained and allowed.
[4.0] Having heard Shri Anshin Desai, learned Senior Advocate, it appears that the readiness shown before this Court orally about hearing through virtual platform, it runs counter to his prayer made in this petition at paragraph 35(B), with a view to delay the proceedings, which is ordered by the NCLAT to be heard expeditiously. The sequence of events, which took place on 27.07.2020, the date of hearing, stated on oath by the petitioner, is not recorded in the order by the adjudicating authority dated 27.07.2020, which is at page 28. The said assertion on oath cannot be believed to be true unless it is found in the order itself. Any assertion on oath made in any petition cannot dislodge what is recorded in the order of the Court or Tribunal. Even if it has happened, there is no contemporaneous record to suggest the same. By prayer (C) made in the petition, petitioner is requesting to quash and set aside the order dated 21.07.2020 passed by the NCLAT i.e. appellate Tribunal directing expeditious hearing without any further loss of time, this Court has no jurisdiction as the order of the appellate tribunal is required to be challenged by way of statutory appeal before the Supreme Court, as submitted by Shri Singhi, learned Advocate. The said prayer is misconceived and mischievously made and it could not have been prayed at all if the contention raised by Shri Singhi is considered.
[4.1] The issue that the hearing before the adjudicating authority Page 4 of 6 Downloaded on : Sat Aug 01 23:23:01 IST 2020 C/SCA/9118/2020 ORDER whether it should be by virtual mode or physical mode or partly virtual mode or partly physical mode requires to be determined by the authority subject to the instructions issued by the appellate authority or instructions issued by the competent Government in view of a situation like this pandemic for a particular course of action. However, under Article 226 of the Constitution of India, this Court cannot issue mandamus for which there is no prayer made to the authority conducting hearing. If any party has any constraints joining virtual hearing or physical hearing, they may ventilate that grievance before the adjudicating authority or the appellate authority thereof.
[4.2] The medium /platform through which hearing is to be conducted by any authority is dependent on availability of resources, technology etc. In a writ jurisdiction, High Court cannot decide how and in what manner the authority should conduct the matter in such a situation. At the same time, from the order under challenge it is not spelt out that the adjudicating authority is conducting the hearing partly physically and partly by virtual mode.
[4.3] Since no one has any fundamental right or legal right to ask the authority for a particular medium /platform through which hearing is to take place as also no such course as asserted in the petition is reflected from the order impugned before this Court, the arguments advanced by the learned advocate for the petitioner cannot be accepted even if the powers of superinitendence is recognized over the tribunal. Since different authority has different mode /medium /platform for the purpose of hearing subject to resources and availability of technology, it is for the adjudicating authority or its appellate authority to decide the same. However, recently NCLAT has revised standard operating procedure adopting Cisco Webex platform for conducting virtual hearing. For ventilating the grievance about the connectivity or any Page 5 of 6 Downloaded on : Sat Aug 01 23:23:01 IST 2020 C/SCA/9118/2020 ORDER difficulties faced by the learned advocates, which can be brought to the notice of the authority hearing the cases, to upgrade or change the web platform, as it is done by the NCLAT.
[4.4] The reliance placed on the press note dated 27.07.2020 issued by the High Court permitting hard copy i.e. physical filing of the matters in subordinate Courts is again issued to the subordinate Courts by the High Court and that too for the purpose of filing only. Nowhere the High Court has permitted even physical hearing, and therefore, the reliance placed on the same is erroneous.
[4.5] Drawing attention to the representation, which is brought on record by draft amendment, made by the President of Ahmedabad National Company Law Tribunal Practitioners Association to NCLT, Ahmedabad, he submitted that even the Association has also requested the adjudicating authority for streamlining the virtual hearing and discourage physical hearing before it. Since it being the representation addressed to the authority, the authority is to take a call and by way of writ under Article 226 of the Constitution of India, this Court cannot interfere with it.
[5.0] However entertaining this petition any further where the NCLAT has directed the adjudicating authority the expeditious disposal of the proceedings would amount to setting aside the order passed by NCLAT, the jurisdiction of which is not with this Court. Since the attempt by this petition appears to be a lame excuse for not participating in the hearing of the main proceedings, which is directed to be expeditiously heard, this petition is rejected with cost of Rs.10,000/-.
(UMESH A. TRIVEDI, J.) K.K. SAIYED /siji Page 6 of 6 Downloaded on : Sat Aug 01 23:23:01 IST 2020