TMI Blog2021 (3) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Applicants : Shri P.Sanjay, Advocate For the Respondents : Shri Shery Samuel Oommen, Advocate (R1 2) Shri PP Zibi Jose, PCS for R3 ORDER This Interlocutory Application has been filed under Rules 120 121 of the National Company Law Tribunal Rules read with Rule 33 of Standards of Professional Conduct Etiquette of the Bar Council of India by M/s. RBG Enterprises Private Limited seeking the following reliefs: - i. The Applicants in the above Company Petition may be directed to make suitable amendments in the Company Petition and the Interlocutory Applications to ensure compliance of Rule 121 of the National Company Law Tribunal Rules, 2016; and; ii. Direct the Applicants in the above Company Petition and their counsel to strictly comply with Rules 120 and 121 of the National Company Law Tribunal Rules, 2016 while making appearance in the Company Petition and all connected Interlocutory Applications. The facts in brief are as under: - 2. The Applicants herein are Respondents 1 and 2 in the Company Petition No. CP/114/KOB/2019. The said Company Petition has been filed by Respondents 1 and 2 herein and Shri Radha Ballabh Gupta to wrest control of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are made on behalf of respondents in the very same company petition and in the said IA is totally unheard of. Petitioners cannot make averments on behalf of the respondents. While the respondent himself is on the party array, if at all, the said respondent has to support the petitioners, the same can be done by the respondent himself. The applicant cannot speak on behalf of any respondent and at any rate the counsel for the applicant cannot speak for the respondent, in view of the restrictions placed by the NCLT Rules and also the Advocates Act. 5. It is also stated that the above act amounts to violation of Rule 121 of the NCLT Rules that imposes certain restrictions on appearance of legal practitioners or authorised representatives, as the case may be. Rule 121 provides as follows: - Rule 121 Restrictions on appearance - a legal practitioner or the authorised representative as the case may be, who has tendered advise in connection with the institution of any case or other proceedings before the Tribunal has drawn pleadings in connection with any such matter or has during the progress of any such matter acted for a party, shall not, appear in such case or proceeding or othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A. 8. Such contentions/averments are made in IA/87/KOB/2019 IN CP/114/KOB/2019 and in IA/95/KOB/2019 in CP/114/KOB/2019. 9. The Applicant also stated that both the advocates are representing the Petitioners as well as Respondent No.4 in several cases that are now pending consideration and posted together for hearing before this Tribunal. This is clear violation Rule 121 of the National Company Law Tribunal Rules, 2016 and also the Bar Council of India Rules that can invite disciplinary action. 10. It is also pointed out that both Mr Sukumar Nainan Oommen and Sherry Samuel Oommen are partners of M/s. Omega Alliance and Mr.Sherry Oommen is also Co-founder of M/s. Nash Capital Partners and both these firms have the same address. The website of Nash Capital Partners displays the picture and gives details of Mr Sherry Samuel Oommen. It may be pointed out that both Mr. Sukumar Nainan Oommen and Mr. Sherry Samuel Oommen M/s.Omega Alliance and Nash Capital Partners were engaged by Applicant No.1 RBG Enterprises Private Limited and also by RBG Trading Corporation Private Limited for professional consultations. It is submitted that both RBG Enterprises Private Limited and RBG Trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of breach of Rule 120 is based on incorrect interpretation of the Rules and undoubtedly out of nervousness and apprehension of the final outcome of the main cases under Secs. 96, 97, 241 and 242 of the Act. The arguing Counsel has assumed the lead role through informal arrangement and consent of other Counsel in the matter including the former Counsel of Radha Ballabh Gupta (Petitioner in CP/98/KOB/2019), namely, Adv. Philip Mathew. It is pertinent to mention that Adv. Philip Mathew had never objected to this arrangement prior to relinquishing the vakalathnama for Radha Ballabh Gupta in favour of the arguing Counsel. The conduct of the arguing Counsel is in conformity with Rule 120 of NCLT Rules read with Rule 2 of the Rules framed by the Hon'ble High Court of Kerala under Section, 34(1) of the Advocates Act, 1961. Therefore, there was no necessity for the arguing Counsel to file fresh vakalatnama after obtaining consent of the Adv. Philip Mathew. 16. The Respondents stated that the Applicants herein alleged that the arguing Counsel has tendered advise to the 2nd Applicant who was one among other plaintiffs in a suit in District Court, Ernakulam. There is no allegation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t who wishes to engage his services after knowing any prior engagement by the opposite parties. This is the spirit of Rules 13, 14, 15, 17, 18, and 33 r/w proviso to Rule 7(1) and 7(2) of Rules framed by the Hon ble High Court of Kerala. 19. The Respondents stated that there is no obligation on the part of a counsel to obtain consent of opposite party if there is no conflict of interest or if he has not appeared on behalf of the opposite party in any pending matter before this Tribunal. The right to appear as a Counsel is a fundamental right under Article 19(1)(g) of the Constitution of India. The right to engage a Counsel is a fundamental right of the parties to a lis under Arts. 14, 19, 21 of the Constitution of India. 20. To fortify the above arguments the learned counsel for the Applicant, has referred to the following case laws: - S B Norohna Vs. Prem Kumari Khanna (1980) 1 SCC 52 Lanka Venkateswarulu (D) By Lrs Vs. State of A.P. (2011) 4 SCC 363 Umesh Challiyil Vs. KP Rajendran (2008) 11 SCC 740 CCE New Delhi Vs. Hari Chand Shri Gopal (2011) 1 SCC 236 21. Respondent No.3 stated that he has no objection in granting relief prayed for by the Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling of the first suit (Suit No. 13-A of 1986) but after its withdrawn does not, in our opinion, strictly speaking, amount to professional misconduct but it certainly was not proper for Advocate Mr. Dayashankar to have filed a second suit after having filed the first suit on behalf of the mother in which the plaintiff of the second suit was a defendant himself. The conduct of the Advocate was certainly improper and he should have been careful. However, since he has been reprimanded by the Disciplinary Committee of the Bar Council, we think the ends of justice have been served. No interference is called for in either of the appeals . 26. In the light of the above findings, I have gone through Section 35, Section 36 and Section 36B of the Advocates Act, 1961 which reads as under: - Section 35: - Punishment of advocates for misconduct. - (1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. 1[(1A) The State Bar Council may, either of its own motion or on application made to it by any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispose of the same. (3) The disciplinary committee of the Bar Council of India, in disposing of any case under this section, shall observe, so far as may be, the procedure laid down in section 35, the references to the Advocate-General in that section being construed as references to the Attorney-General of India. (4) In disposing of any proceedings under this section the disciplinary committee of the Bar Council of India may make any order which the disciplinary committee of a State Bar Council can make under sub-section (3) of section 35, and where any proceedings have been withdrawn for inquiry 3[before the disciplinary committee of the Bar Council of India] the State Bar Council concerned shall give effect to any such order. Section 36B: - Disposal of disciplinary proceedings. (1) The disciplinary committee of a State Bar Council shall dispose of the complaint received by it under section 35 expeditiously and in each case the proceedings shall be concluded within a period of one year from the date of the receipt of the complaint or the date of initiation of the proceedings at the instance of the State bar Council, as the case may be, failing which such proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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