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2020 (8) TMI 384 - AT - Insolvency and BankruptcyJurisdiction to hear appeal - Judicial Indiscipline - Monitoring of execution of Resolution plan as approved - it is the plea of the Appellant that the erstwhile Bench had the requisite jurisdiction to hear and reserve the matter on the day on which it was heard - it is the contention of the Appellant, when the erstwhile Bench of ‘NCLT’, Mumbai had reserved orders, the reconstituted Bench No. II, Mumbai had acted arbitrarily and in excess of its jurisdiction had stayed the proceedings, where the orders were reserved by the co-ordinate Bench HELD THAT:- Section 419(1) of the Companies Act, 2013 speaks of constitution such number of Benches of the Tribunal, as may, by notification, be specified by the Central Government etc. As a matter of fact, ‘Constitution of Benches’ and ‘Assignment of Cases’ is left to the subjective administrative discretion of the President / Chairman of a Tribunal. Section 420(1) of the Companies Act, 2013 says that ‘the Tribunal may, after giving the parties, to any proceeding before it, a reasonable opportunity of being heard pass such orders thereon as it thinks fit’. Needless to state that the ‘Tribunal’ is to ascribe reasons for arriving at a conclusion, of course resting upon the materials on record. The Hon’ble President of ‘NCLT’, New Delhi, (in exercise of the powers conferred u/s 419 of the Companies Act, 2013) on 29.1.2020 had re-constituted the Benches at ‘NCLT’ Mumbai for the purpose of exercising and discharging the functions assigned by the statute which was in partial modification of the order dated 25.07.2020. It is to be remembered the principle of “qundo aliquid prohibetur, prohibetur et omne per quod devenitur ad illud” is that an ‘Authority is not to be permitted to evade a Law by shift or contrivance’. In as much as the impugned order which was heard by the erstwhile Bench on 30.01.2020 wherein orders were reserved, until the next date of hearing i.e. on 28.02.2020 is beyond the jurisdiction of the re-constituted Bench of ‘NCLT’ Court No. II, Mumbai, the said order with a view to prevent an aberration of justice and with a view to secure the ends of justice, is set aside by this Tribunal, of course in the interest of our institutional justice delivery system, with a benign hope and trust that such slipup will not recur again in future - Appeal allowed. Jurisdiction of Monitoring Agency - Appellant submits that the ‘Monitoring Agency’ does not have the ‘Locus-Standi’ to file MA No.249/2020 (MA No. 1) in which the impugned order was passed on 18.2.2020 - grievance of the Appellant is that the ‘Monitoring Agency’ had not even consulted with the ‘Steering Committee’ before filing MA No. 249/2020 and there was no resolution on record approving such an action - HELD THAT:- In the instant case, it cannot be brushed aside that nearly six months have gone by, from the order of approving the ‘Resolution Plan’ dated 25.11.2019 of the Appellant and the same is yet to be implemented by the Appellant till date. In the ‘Preliminary Reply Affidavit’, the Appellant / Respondent at paragraph 6 had stated that it had always shown its willingness and ability to execute the approved ‘Resolution Plan’ etc. As such, this Tribunal is of the earnest opinion that the Appellant / Respondent cannot avoid/evade/ or circumvent its ‘solemn responsibility’ to implement the ‘Resolution Plan’ unconditionally in stricto sense of the term, without any further procrastination. This Tribunal taking note of the facts and circumstances of the present case which float on the surface in a conspectus fashion and also keeping in mind that the ‘upfront payment’ was not made by the Appellant as well as the ‘Non-Convertible Debentures’ of ₹ 480/- Crores in favour of ‘Financial Creditors’ was not issued; comes to an inevitable and irresistible conclusion that the ‘Adjudicating Authority’ had rightly directed the Appellant / ‘Resolution Applicant’ to make: (a) payment of upfront amount of ₹ 420/- Crores which was already due consequent to the completion of 30 ‘Business Days’ from the date of approval of the ‘Resolution Plan’ by it; (b) the issuance of ‘Non-Convertible Debentures’ of ₹ 480/- Crores in favour of the ‘Financial Creditors’; (c) to deposit the balance performance guarantee of ₹ 48/- Crores within 90 days of the approval of the ‘Resolution Plan’ by granting a week’s time and resultantly allowed the miscellaneous application - Appeal dismissed.
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