TMI Blog2020 (2) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, entertain the present petition. The preliminary objection raised to the maintainability of the Writ Petition and proceed to dismiss it on the ground that the petitioners have alternate and equally efficacious remedy of filing on Appeal to the National Company Law Appellate Tribunal and in that appeal, it can raise all grounds, including the one raised in the Memo of the present petition. The original record and proceedings be returned by the Registry to the advocate appearing for the Union of India. - WRIT PETITION (L) NO. 3621 OF 2019 - - - Dated:- 28-1-2020 - S.C. DHARMADHIKARI R.I. CHAGLA, JJ. Mr. Navroz Seervai, senior advocate with Mr. Prateek Seksaria, Mr. Rohit Gupta, Mr. Nivit Srivastava, Ms. Neha N. Shah and Ms. Yamini Maheshwari for the Petitioners. Mr. Zal Andhyarujina with Mr. Mustafa Kachwala, Ms. Mahima Singh, Mr. Shrey Sancheti and Ms. Ketki Pansare i/b Kachwala Misar Co. for the Respondent No.1. Mr. Janak Dwardas, senior advocate, with Mr. Raj Panchmatia, Mr. Peshwan Jehangir, Ms. Anumeha Karnatak and Mr. Himanshu Vidhani i/b Khaitan Co. for the Respondent Nos.2 and 3. Mr. Pankaj Vijayan for the Respondent No.4 IBBI. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of submission. That was done after the bid of the petitioner was already opened. There is an illegality alleged in the acceptance of the bid of the second respondent. It is alleged that the petitioners objected to the process and enhanced its bid. That was highest in all terms. The petitioners state that their bid being the highest, it ought to have been accepted. However, the second highest bid was accepted by the Committee of Creditors. It is this gross illegal process adopted by the Resolution Professional which was challenged by the petitioner by filing Miscellaneous Application No. 1039 of 2019 in Company Petition No. 156 of 2018. The Resolution Professional respondent No.1 filed Miscellaneous Application No. 691 of 2019. That was accepted by the Tribunal and the Plan was sanctioned. The petitioners application has been rejected. 5. After setting out the facts relating to filing of the proceedings before the National Company Law Tribunal, the petitioners state firstly in paragraphs No.6.1 that the NCLT admitted the petition filed by the Corporate Debtor - Ricoh India Limited and appointed a Resolution Professional. The appointment was confirmed by the Committee of Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter on 16th July, 2019, passed an order fixing the Miscellaneous Application of the petitioners for hearing on 12th June, 2019 and adjourned the main Miscellaneous Application of the Resolution Professional to 3rd July, 2019. 8. The Tribunal heard the Miscellaneous Application No. 1039 of 2019 alongwith other Miscellaneous Applications on various dates, but reserved the matter for orders on 3rd July, 2019. Exhibit-G is a copy of the order dated 3rd July, 2019. However, no order was passed till November, 2009. There was another Application No. 1040 of 2019 which was heard and reserved for orders on 15th July, 2019. This Miscellaneous Application was filed by Commercial Tax Department of the Government of Rajasthan. The petitioner says that the Miscellaneous Application No. 691 of 2019 filed by respondent No.1 was listed on 23rd July, 2019. Since no order was passed it was adjourned to 7th August, 2019. The matter was again adjourned to 26th August, 2019. The copy of the order dated 7th August, 2019, is annexed as Exhibit-J to the petition. 9. In paragraph 6.22 of this petition the petitioners allege that the hearing of Miscellaneous Application No. 691 of 2019 was deferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scellaneous Application of the Resolution Professional was delayed from time to time and finally heard on 19th September, 2019. It was heard by the Bench of the Tribunal comprising of the Member (Judicial) and Member (Technical). At the time of hearing of this application, the advocates for the petitioners were present. The advocates for the petitioners made certain submissions before the NCLT. They requested the NCLT to take on record, their Resolution Plan. The petitioners never raised any objection to the coram of the Hon ble NCLT. Thus, the attempt in this affidavit is to demonstrate that though the petitioners application was heard before a Bench comprising of a single Member and reserved for orders, later on when the Miscellaneous Application No. 691 of 2019 of the Resolution Professional was heard, the petitioners were indeed present with their advocate and allowed the Tribunal to deal with the contents of even their Miscellaneous Application. They made brief submissions. They never objected to the course adopted by the Bench. 12. At the outset, we must clarify that the only point which has been throughout highlighted in this writ petition by the petitioners senior couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Miscellaneous Application No. 691 of 2019. The Presidential order is dated 23rd / 25th July, 2019. The Mumbai Bench was re-constituted by this order. The Bench of Mr. Shrawat was dissolved. If a Bench of two Members was constituted, but the petitioners being not a party to the Miscellaneous Application No. 691 of 2019, there is no question of the petitioners consenting to their Miscellaneous Application No. 1039 of 2019 being placed therewith or heard afresh. In fact, the petitioners would never become a party to the breach of the principles of natural justice. The salutary principle applicable in this case is that one who hears the matters must decide . It is Mr. Shrawat who heard the petitioners Miscellaneous Application. He alone could have decided it. Merely because Mr. Shrawat became a part of a Bench of the Tribunal comprising of two Members does not mean that he could have taken up the petitioners application along with Miscellaneous Application No. 691 of 2019 and delivered the impugned order dealing with the merits of the petitioners application. It is not because Mr. Shrawat is a part of the Bench, that the petitioners consented to this manner of disposal of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Article 226 of the Constitution of India is not maintainable for the IBC provides for two appeals. The petition is filed by asserting a fact, but the factual position is specifically disputed. The petitioners Resolution Plan was rejected by the Committee of Creditors on 15th February, 2019. Such a rejection is not justiciable. Mr. Dwarkadas would submit that the petition contains general and vague statements. The petition seeks to project as if the petitioners never participated in the proceedings once the order of the learned single Member was passed. In fact, our attention has been invited to the petition and particularly paragraph Nos.4 and 5 of the impugned order as also the preceding paragraphs therein to urge that the petitioners have appeared before the Tribunal even after the single Member is stated to have heard their application fully and reserved it for orders. The petitioners never objected to their application being taken up along with Miscellaneous Application No. 691 of 2019. The petitioners, in fact, appeared through advocates and that is clear from the coram and the appearances of parties. That is apparent, according to Mr. Dwarkadas, from pages 46 to 48 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6th January, 2020, calling for the original record. That was allowed to be inspected by both sides. On the record being inspected by both sides, we heard this petition. 18. The Insolvency and Bankruptcy Code, 2016, has been enacted by the Parliament so as to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time-bound manner. The preamble to this law reads as under : An Act to consolidate and amend the laws relating to re-organisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of Government due and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto. 19. In terms of this law, before the definitions is the Application section. That section (section 2) says that the provisions of this Code shall apply to any company incorporated under the Compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period; (iii) the debts owed to operational creditors of the corporate debtor have not been provided for in the resolution plan in the manner specified by the Board; (iv) the insolvency resolution process costs have not been provided for repayment in priority to all other debts; or (v) the resolution plan does not comply with any other criteria specified by the Board. (4) An appeal against a liquidation order passed under section 33 may be filed on grounds of material irregularity or fraud committed in relation to such a liquidation order. 21. Then, by section 62 there is a further appeal provided to the Supreme Court on a question of law. That appeal can be filed by a person aggrieved by an order of the National Company Law Appellate Tribunal. 22. To our mind, the petition before us projects a factual dispute. The petitioners assert that they have filed a Miscellaneous Application No. 1039 of 2019. That was heard first in point of time and reserved for orders. Until and unless any order was made thereon, there is no question of taking up for consideration another Miscellaneous Application No. 691 of 2019. Further, no orders were passed in the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjected to the coram of the Hon ble NCLT and, in fact, submitted to their jurisdiction. The coram of the NCLT reserved its order on Miscellaneous Application No. 691 of 2019 and did not take the Resolution Plan of petitioner No.1 on record. The Board / List of matters on 19th September, 2019, before the Bench, is relied upon. A copy of that is taken from the website of the NCLT. Thereafter it is said on 28th November, 2019, both Miscellaneous Applications, one filed by the petitioners and other by the respondent No.1 were listed on the Board under the caption For Pronouncement of Orders . The orders were pronounced in both matters. The deponent of the affidavit filed on behalf of the respondent Nos.2 and 3 says that he was present in the Court when the order was pronounced. The petitioners have made a false and incorrect statement in paragraph 6.25 of the writ petition that the orders were not pronounced in open court. The Board / List of matters of 28 th November, 2019, being the date on which the orders were pronounced, the grievance raised by the petitioners that the impugned order is a nullity has no substance. Even the second objection taken and namely, the principle of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken into consideration by the Members during the hearing of the Resolution Plan. They were not allowed to raise objections as they were already heard and the petitioners matter was reserved for orders. The petitioners advocate s request was to hear both the Resolution Plans before passing orders and that request was also not entertained. That is presumably because they were already heard on their Miscellaneous Application. To our mind, these are, therefore, disputed questions and the petitioners are not projecting only one or salutary grievance. They raise alternate grounds to support their argument that they were not heard when the two-Member Bench of the NCLT passed the impugned order. One of the grounds concerning this issue is that one of the Members of the Bench had heard the petitioners application earlier separately and reserved it for orders. Although he did not pronounce that order and joined the Bench, he proceeded on the footing that the petitioners are consenting to their application being taken up by the Bench of two Members and disposed of by the Bench together with the application of the first respondent. This course, according to the petitioners, was not consen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the Division Bench of this Court in Writ Petition No.3492 of 2018 Hardcastle Restaurants Pvt. Ltd. Anr. vs. Union of India Ors., decided on 1st October, 2019 , has no application to the facts of the present case. In that case, the main contention of the petitioner of violation of the principles of natural justice was raised in the context of hearing by a three-Member Bench but passing of an order passed by four Members. In considering that argument, the undisputed factual position is noted by the Division Bench of this Court in paragraphs 14 and 15. The Division Bench rendered its finding on the point and concluded that the decisions cited by both sides demonstrate that breach of the principles of natural justice are examined in the facts of each case. Certain basic position in law is settled. The rule that one who hears must pass the order is the basic proposition. In certain circumstances, this rule can be deviated from. The basic rule was found to be deviated by the Bench in the peculiar undisputed facts emerging from the record of that writ petition. The Bench, therefore, concluded that three Members of the Authority had heard the petitioner and they participate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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