Bombay High Court
Kamal K. Singh vs Union Of India And 5 Ors on 21 November, 2019
Bench: S. C. Dharmadhikari, R.I.Chagla
901.WPL-3250-19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.3250 OF 2019
Kamal K. Singh ... Petitioner
versus
Union of India and Ors. ... Respondents
Mr.Janak Dwarkadas, Senior Counsel,
Mr.Vikram Nankani, Counsel a/w
Ms.Ankita Singania, S.S.Jan, Rhea
Thadhani i/b Mr.Shailendra Kanetkar for
the Petitioner.
Mr.Ravi Kadam, Senior Advocate,
Mr.Animesh Bisht, Mr.Anush Mathkar,
Ms.Sanjana M. i/b Cyril Amarchand
Mangaldas for Respondent Nos.3 and 4.
Mr.R.V.Govilkar a/w Mr.Dhanesh R. Shah
for Respondent Nos.1 and 2.
Mr.B.A.Patel, Deputy Registrar-NCLT
present.
CORAM :- S. C. DHARMADHIKARI &
R.I.CHAGLA, JJ.
DATE :- NOVEMBER 21, 2019 P.C. :-
1. On this petition, after hearing both sides, the following order was passed on 18th November, 2019.
"Let the Prothonotary & Senior Master issue a telephonic notice, as also by email ([email protected]) and hand-delivery to the Registrar of National Company Law Tribunal, Mumbai Bench, respondent No.2 in this petition, requesting him to remain present before this Court on 20-11-2019 at 3.00 p.m., with all original records concerning the case in which an Order is purportedly passed by the Tribunal on 22-10-2019 being C.P. (IB) No.4375/NCLT/MB/2018."Page 1 of 7
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2. On 21st November, 2019, after the matter was called out, Mr.R.V.Govilkar, appearing on behalf of respondent Nos.1 and 2, tendered the original record.
3. However, what is tendered before this Court yesterday was a Register, which, according to Mr.Govilkar, contains the details such as the number of the proceedings, the date of the order and the date of uploading of the order or the date given for the uploading of the order.
4. It is stated with reference to this Register by Mr.Govilkar that it contains an endorsement that as far as the said proceedings are concerned, the final orders are dated 22 nd October, 2019.
5. The order passed by the Members is also produced in a separate file together with some loose papers. The set of loose papers contains an endorsement, but without any date, which reads as under:-
"ORDER
19. MA 2216/2019 in C.P. (IB) 4375 (MB)/2018 Heard the argument of the Ld.Counsel for the Financial Creditor and Counsel for the Corporate Debtor. Ld. Counsel for the Financial Creditor sought leave of the court for filing a fresh declaration of proposed RP in Form 2. Prayer is allowed. Financial Creditor may file declaration by Proposed RP in Form 2 by the end of the date.
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901.WPL-3250-19.doc It is Reserved for Orders.
Sd/- Sd/-
RAJESH SHARMA V.P.SINGH
Member (Technical) Member (Judicial)"
6. Thus, the arguments were concluded and the order was reserved.
7. Mr.Dwarkadas, learned senior counsel appearing on behalf of the petitioner, has contended before us that the order impugned in this petition be quashed and set aside, not on merits, but only on the ground that it does not comply with the Rules. He would draw our attention to the set of Rules which are applicable to the proceedings.
8. The rules that have been pressed into service are to be found in the National Company Law Tribunal Rules, 2016. Our attention is invited to Rule 150 of the Rules. It reads as under:-
"150. Pronouncement of Order.- (1) The Tribunal, after hearing the applicant and respondent, shall make and pronounce an order either at once or, as soon as thereafter as may be practicable but not later than thirty days from the final hearing.
(2) 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, (3) A certified copy of every order passed by the Tribunal shall be given to the parties, Page 3 of 7 M.M.Salgaonkar ::: Uploaded on - 21/11/2019 ::: Downloaded on - 22/11/2019 03:31:13 :::
901.WPL-3250-19.doc (4) The Tribunal, may transmit order made by it to any court for enforcement, on application made by either of the parties to the order or suo motu.
(5) Every order or judgment or notice shall bear the seal of the Tribunal."
9. Then, Mr.Dwarkadas would submit that the argument of the petitioner is not hyper-technical as is projected by the other side. The argument is that there is no legal and valid order unless it is pronounced. The order may have been kept ready for pronouncement, but the Tribunal, exercising judicial powers, ought to have pronounced that order. He would submit that the Rule is couched in a language, which makes the pronouncement mandatory. It may be a pronouncement at once or as soon as after hearing the applicant and the respondent is concluded. It may not be possible to immediately pronounce the order, but there is outer limit also prescribed of thirty days from the date of final hearing. Mr.Dwarkadas submits that assuming that this outer limit is not mandatory, what is mandated by the Rules is "pronouncement". By Rule 151, pronouncement of order by any one member of the Bench is permissible. That will be a pronouncement on behalf of the Bench. When the order is pronounced under this Rule 151, the Court Master shall make a note in the order sheet, that the order of the Bench consisting of President and Members was pronounced in open court on behalf Page 4 of 7 M.M.Salgaonkar ::: Uploaded on - 21/11/2019 ::: Downloaded on - 22/11/2019 03:31:13 :::
901.WPL-3250-19.doc of the Bench. The argument throughout was that there was no date of pronouncement notified. There was no board prepared of the proceedings and particularly, the pronouncement of the order in open Court. There was no intimation to the parties and that the petitioner's advocate was in the Court, but no pronouncement was done. Interestingly, according to Mr.Dwarkadas, there is an endorsement at pages 547A and 547B that the pronouncement was made after the board was prepared. However, there is no contemporaneous record of this board having been notified. In fact, the contra record is that this board is prepared later. Mr.Dwarkadas sought to tender an affidavit of the petitioner affirming these allegations.
10. Mr.Ravi Kadam, the learned senior counsel appearing on behalf of the contesting respondent, on the other hand, would submit that there is an allegation of non-compliance with the Rules. The Rules cannot be elevated to such a status making it impossible for the Tribunal to function. There is no serious omission and of the nature pointed out. Rather, there is pronouncement of the order in the absence of the parties. That does not mean that there is no pronouncement of the order or that the parties had not been intimated of such pronouncement. Page 5 of 7 M.M.Salgaonkar ::: Uploaded on - 21/11/2019 ::: Downloaded on - 22/11/2019 03:31:13 :::
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11. In the light of these allegations, we had requested Mr.Govilkar to produce the original record. Until then, we had refused to take the affidavit of the petitioner on file.
12. Today, this record is produced and it has been perused by this Bench. In that, we have not found any endorsement of the Court Master. If the order was pronounced under sub-rule (2) of Rule 151, which says that after pronouncement of order under Rule 151 by a Member of the Bench, on behalf of the Bench, the Court Master shall make a note in the order sheet that the order of the Bench consisting of President and Members was pronounced in open Court on behalf of the Bench, pertinently, there is no endorsement in the original file of this nature and Mr.Govilkar has conceded that there is no roznama also.
13. Both the statements recorded and attributed to Mr.Govilkar, are made on instructions of the Deputy Registrar of the Tribunal, who is present in the Court.
14. Mr.Kadam says that his client be allowed to inspect the original record and thereafter to make submissions on the point. We deem it fit and proper to offer such an opportunity to the contesting respondent.
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15. Let the concerned representative or the advocate for the contesting respondent inspect the record whereafter Mr.Kadam can make his submissions on the point.
16. Incidentally, we note that there are judgments of the Hon'ble Supreme Court, which rendered in two similar cases.
17. We take on record the affidavit of Mr.Narendra Gupta.
18. Stand over to 22nd November, 2019.
(R.I.CHAGLA, J.) (S.C.DHARMADHIKARI, J.) Page 7 of 7 M.M.Salgaonkar ::: Uploaded on - 21/11/2019 ::: Downloaded on - 22/11/2019 03:31:13 :::