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TMI Blog2021 (9) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect'. Further, on behalf of the 'Appellant' it is stated before this' Tribunal' that the address of the 3rd Respondent Company from the Master Data shows its registered address at Bengaluru which is the same one i.e. mentioned in the 'Memo of Parties' of the 'instant Appeal'. 1. Earlier, the 'Adjudicating Authority' (National Company Law Tribunal, Bengaluru Bench, Bengaluru) while passing the 'Impugned Order' in CP(IB) No.116/BB/2020 on 07.12.2020 at paragraph 12 to 16 had observed the following: 12"The Appellant's contention that the Respondent could have procured the goods from other sources and that the Applicant's responsibility ends once the supply is done cannot be adjudicated upon by this Tribunal as proceedings under Section 9 of the Code, 2016 are summary proceedings and do not envisage detailed investigation, enquiry or forensic audit. The contentions raised pointing out to a dispute regarding the quality of the goods being good at the time of delivery, the Respondents own shoddy work on the additional work, or supplies received from other suppliers, etc. only makes it clear that these issues have to be dealt with by any other court or tribunal where evidence can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and well settled, this Tribunal cannot be used as recovery forum or to push a viable company into Insolvency. It is seen that the Corporate Debtor is an International level furniture supplier of repute with a Paid Up Capital of Rs. 1,49,34,640/- operating in this field since 2010. It has filed a Solvency Certificate issued by Anil D'Souza Associates, Chartered Accountants dated 07.09.2020 wherein it is certified that M/s Krueger Furniture Systems Private Limited, is solvent to the extent of Rs. 8,60,28,915/- as on 31.03.2020, as disclosed and the information and records produced before them. The Petitioner's argument that this solvency certificate is not sufficient is not acceptable. It is also submitted that the Respondent has several live clients to whom it is supplying furniture items, especially to educational institutions and offices, and employs a huge workforce. Thus, it cannot be said that the Respondent has lot its substratum and is unable to run its business or pay its debts. Such a company cannot be unjustifiably pushed into an Insolvency resolution process as that would be against the objects of the Code. 16. However, during the course of these proceeding, Ld. Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 'Adjudicating Authority' on 11.12.2020. 5. The grievance of the 'Appellant' is that till date the matter was never listed for pronouncement of an order and that the 'Appellant' while looking at the 'Tribunal's website could not find the 'Impugned Order' as the party names linked on the NCLT's website was with a typo 'Kruegar" instead of 'Krueger' and after trying various permutation/combination to the surprise of the 'Appellant' on 06.02.2021, it found an order dated 07.12.2020 which was uploaded on the 'Tribunal's website of which the 'Appellant' had no knowledge. 6. The other plea taken on behalf of the 'Appellant' is that there was no communication of the order copy even by way of an e-mail from the 'Registry' of the National Company Law Tribunal, Bengaluru. Moreover, the 'Appellant' was never admitted into any of the WhatsApp group of the 'Tribunal' for the matter after 11.12.2020 for the purpose of pronouncement of order (erroneous addition of appellants representative on 03.02.2021). 7. Mr.K. Gaurav Kumar, (Practising Company Secretary) appearing for the 'Appellant' submits that the 'Impugned Order' dated 07.12.2020 in the main C.P.(IB)No.116/BB/2020 Petition was neither ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtified copy of every order passed by the tribunal shall be given to the parties and then sub-rule (4) says that 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. The rule also states that the order or judgment or notice shall bear the seal of the tribunal. If there was absolutely no necessity of pronouncement of the order, Rule 151 would not have been inserted at all. Rule 151 has been inserted with a purpose. It is stated in Rule 151 that any Member of the Bench may pronounce the order for and on behalf of the Bench. By Rule 152 it is permissible for the President to authorise any other Member to pronounce the order if the Member of the bench, who heard the case are not readily available or have ceased to be Members of the tribunal. This can be done after the President is satisfied that the order has been duly prepared and signed by all the Members who heard the case. Thus, as per rules a duly prepared and signed order can be pronounced by another Member who was not part of the Bench which heard the case. We are aware of the fact that there is great inconvenience to litigants and parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) (AIR 1954, P.194) and in the case of State of Uttar Pradesh and Ors. v Lakshmi Ice Factory (supra) (AIR 1963, P.399) can be brushed aside. These judgments are binding on us. They continue to hold the field. In fact, the decision rendered has been followed later in a decision in the case of Iqbal Ismail Sodawala v The State of Maharashtra (AIR 1974 SC 1880)." 11. On behalf of the 'Appellant' a reference is made to the order of the Hon'ble High Court of Bombay dated 29.11.2019 in W.P. (L) No.3250 of 2019 between Kamal K. Singh, Mumbai 400 005 v Union of India through the Ministry of Corporate Affairs, Mumbai and 5 others wherein at paragraphs 81 and 90 it is observed as under: 81 ".......The requirement of making entries by Court Master would play a very vital role in the conduct of judicial proceedings is contemplated by Rule 156 and by Rule 157, there is a transmission of order by the Court Master. There is a transmission of the order with the case file to the Deputy Registrar by Rule 157(1) and thereafter, the duty of the Deputy Registrar is to make scrutiny and record the satisfaction that the provisions of these rules have been duly complied with and in token thereof af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers' on that date, however, the same being not uploaded in the NCLT Online Website Portal, certainly, the order in the main CP(IB)/116/BB/2020 could not have been pronounced on 07.12.2020 (vide Annexure 'E' of the 'Appeal Paper Book' Diary No.137 dated 08.03.2011). Apart from that, there was no communication that was received by the 'Appellant' in regard to the pronouncement of the order which was received by the 'Adjudicating Authority' in the aforesaid Company Petition. 17. It is significantly pointed out that Rule 150 of the NCLT Rules, 2016 provides for 'Pronouncement of Order'. Rule 151 of the NCLT Rules, 2016 pertains to 'Pronouncement of Order' by any one Member of the Bench. As per Section 150(5) of the National Company Law Tribunal Rules, 2016 'Every order or judgment or notice shall bear the seal of the 'Tribunal'. 18. According to the 'Appellant' to its surprise,, it found an 'Impugned order' dated 07.12.2020 on 06.02.2021, which was uploaded in the NCLT Website and hence it is the fervent plea of the 'Appellant' that the 'Impugned Order' was neither pronounced on 07.12.2020 nor listed for pronouncement nor finally Heard on the said date, especially, in the teeth of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... technology is introduced, particularly for listing of cases, then, all the more with the advances therein, the rule makers desired that there should be complete transparency, fair and just treatment to litigants and parties. Nobody should carry an impression that the case has been heard behind their back or that they have been taken up without any intimation or knowledge to the party or litigant and disposed of. Therefore, when cases are preponed or postponed, litigants have to be informed. They may have engaged advances, but such transparency, faith, consistency, credibility and sanctity of judicial acts and proceedings is maintained. Everything in relation to judicial proceedings, therefore, is covered in the broad and wider concept of dispensation of justice. Ultimately, courts are endowed with the duty to render justice. If courts and tribunals exercising judicial functions are chosen by the legislature to render justice to litigants, then, all the more they cannot be expected to work in a closed door fashion. Judicial Proceedings have to be opened to public. 73. Part X of the NCLT Rules, 2016 will make this aspect further clear. Rule 91 requires diaries to be maintained by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal' cannot dispense with justice. In reality, it must discharge its duties/function with a sole aim and purpose of 'Dispensing Justice'. 23. If an order/judgment is delivered by a 'Tribunal' ignoramus of rules, then, it will result in untold hardship, misery and unerringly leading to a miscarriage of justice. Moreover, 'expediency in pronouncement' of an 'Order'/'Judgment' by a 'Tribunal' is not desirable/palatable, in the earnest opinion of this 'Tribunal'. 24. No wonder, a Judgment/Order of a Court of Law/'Tribunal'/'Appellate Tribunal' is to be written only after deep travail and positive vein. The term 'communication' means making known or sharing or imparting. In legal parlance, it means to officially or solemnly, to declare or affirm as affirm the pronouncement of an 'Order'/'Judgment'. It is to be remembered that pronouncement of an 'Order'/'Judgment' of a Court of Law/a Tribunal is not an empty ritualistic formality. Undoubtedly, the 'Tribunal'/'Appellate Tribunal' is performing/discharging a solemn judicial function. The 'Adjudicating Authority' as per Section 5(1) of the I & B Code is the National Company Law Tribunal. 25. It cannot be forgotten that if a particular a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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