Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + AT Insolvency and Bankruptcy - 2022 (11) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (11) TMI 1468 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHIAdmission of the application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 by the Operational Creditor - validity of the impugned order challenged on the ground that it has been passed by a single member (Judicial Member) though the entire matter was heard by two members (Judicial Member and Technical Member) - whether the application filed either under section 7, 9 or 10 of the Code is heard by a bench comprising of two members of the Tribunal till the date it was reserved by a single bench who ultimately pronounced the order is in violation of the provisions of Section 419(3) of the Act? HELD THAT:- A bare reading of Section 419(3) of the Act provides that the powers of the Tribunal is to be exercised by benches having strength of two members out of whom one shall be a Judicial Member and the other a Technical Member. However, in order to meet the exigency, there is a proviso to this section which says that, a member of the Tribunal, who is authorized by the President to function as a bench, consisting of single Judicial Member bench, in order to exercise the powers of the Tribunal in respect of a particular class of cases or particular matters pertaining to such class of cases. In so far as, Rule 151 of NCLT Rules, 2016 is concerned, it provides that any member of the bench may pronounce the order for and on behalf of the Bench and when an order is pronounced in terms of 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 of the Bench. There is no such note even in the impugned order at the instance of the Court master in compliance with Rule 151 of the NCLT Rules - Rule 152 deals with the situation where the member who had heard the matter is not available or ceased to be member of the Tribunal then with the authority conferred by the President any other member of the Tribunal may pronounce the order on his behalf after being satisfied that the order has been duly prepared and signed by all the members who heard the case. There is no other alternative but to set aside the order because the order passed is nonest in the eyes of law and cannot be followed in any Court. Consequently, the appeal is allowed and the impugned order is set aside. The application filed under Section 9 of the Code is restored to its original number. The matter is remanded back to the concerned Adjudicating Authority to decide it again in accordance with law.
|