TMI Blog2024 (4) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of subsequent events, that is an order passed by Debt Recovery Tribunal dated 05.10.2023 and on which Application notices were issued by the existing Court-III and orders were reserved. For the purpose of this case, the issue as to whether the plea raised in IA No.5177 of 2023, ought to be allowed or not, need not be perused. But when these facts were brought before the Special Bench on 22.03.2024, on which date the case was listed for pronouncement, the Adjudicating Authority ought to have awaited the orders in IA No.5177 of 2023. It is well settled that although lis between the parties have to be decided on the date when proceedings were initiated, but subsequent events can very well be taken into consideration by Adjudicating Authority. There was no fetter on the jurisdiction of the Adjudicating Authority in deferring the pronouncement and awaiting the orders passed in IA No.5177 of 2023. Thus, on this ground alone the order dated 22.03.2024 deserved to be set aside - The Bench, which has delivered the order on 22.03.2024, i.e., Special Bench, which is no more available at Mumbai Bench, ends of justice will be served in directing for hearing of Company Petition afres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bring on record the Order issued by the President regulating such situation, if any. Let both the parties bring relevant material with regard to issues which have been arisen as noted above. List these Appeals on 9th April, 2024. In the meantime, interim protection granted by this Tribunal on 28th March, 2024 shall continue. The additional Affidavit may be filed by 8.4.2024. 3. Interim order passed on 28.03.2024 that no publication in pursuance of the impugned order shall be made was continued by order dated 02.04.2024. In pursuance to the order dated 02.04.2024, the Appellant has filed the compilation of orders/ judgment on 08.04.2024. Both the parties were heard on 10.04.2024 with regard to procedural aspect of the matter. 4. Brief facts of the case necessary to be noticed for deciding the Appeal are: (i) Indiabulls Housing Finance Limited ( IHFL ), has sanctioned five loans to the Corporate Debtor from the year 2014 to 2018. The Corporate Debtor secured the loans by way of deposit of title deeds for an immovable property. The Corporate Debtor made certain payments on various dates. (ii) Proceedings under Section 13, sub-section (2) of the SARFEASI Act, 2002 was initiated by IHF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) CP(IB)-769 (MB)/2022 and IA No.2889 of 2022 was listed for pronouncement before Special Bench consisting of Shri H.V. Subba Rao and Ms. Madhu Sinha on 22.03.2024. The Corporate Debtor on 22.03.2024, informed the Bench of the order dated 05.10.2023 and filing of IA No.5177 of 2023 seeking direction for de-reserving the Company petition and the fact that order in IA No.5177 of 2023 has already been reserved. The Adjudicating Authority, however, proceeded to pronounce the order on 22.03.2024 in Company Petition, admitting Section 7 Application. (ix) This Appeal has been filed by the Suspended Director of the Corporate Debtor challenging order dated 22.03.2024. 5. We have heard Shri Abhijeet Sinha, learned Senior Counsel appearing for the Appellant; Shri Gaurav Mitra, learned Counsel appearing for Respondent No.1 and Ms. Savita Agarwal, IRP. 6. Shri Abhijeet Sinha, learned Senior Counsel challenging the order contends that order was reserved by earlier Bench on 26.06.2023 and subsequent to reserving of the order, IA No.5177 of 2023 was filed, bringing on record the order dated 05.10.2023 passed by DRT, deciding the Securitization Application, challenging the proceedings in SARFAESI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itting deferment of the pronouncement of the judgment on the basis of subsequent Application will encourage wrong practice and will delay the disposal of the proceedings, which have already been heard and reserved. 8. We have heard learned Counsel for the parties and have perused the records. 9. From the facts as noted above, there is no dispute between the parties with regard to following facts : (I) Section 7 Application as well as IA No.2889 of 2022 filed by the Corporate Debtor were heard on 26.06.2023 by a Bench consisting of Shri H.V. Subba Rao, Member (Judicial) and Ms. Madhu Sinha, Member (Technical). On reconstitution of the Bench, Judicial Member, who was in Court-III of the Mumbai Bench, was transferred to Guwahati Bench and Court-III of the Mumbai Bench was reconstituted. (II) The Corporate Debtor filed IA No.5177 of 2023 in November 2023, which was heard on 25.01.2024 by reconstituted Bench- III with Lakshmi Gurung, Member (Judicial) and Charanjeet Singh Gulati, Member (Technical) and notices were issued on 25.01.2024 and hearing in IA No.5177 of 2023 was concluded and orders reserved on 04.03.2024. (III) On 22.03.2024, Company Petition (IB) 769(MB)/2022 and IA No.2889 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Hon'ble Bench by oversight or any other reason, such order needs to be recalled by new/present Hon'ble Bench immediately. iii) The Registry of each Bench should verify matters which were reserved for final judgment/order and place the same before Hon'ble Benche(s) for passing orders, to avoid the situation pointed out in the Writ Petition No.31011/2023; Gopalan Ramakrishnan Vs. Union of India which was filed recently before Hon ble High Court of Bombay. iv) in case the Hon ble member(s) of the Bench which reserved the order/ judgment is not available due to retirement or otherwise, then appropriate direction be sought from the Hon ble President. v) a report be sent to registrar of such compliance within 7 days by the concerned Bench. 3. This is issued with approval of Hon ble President Sd/- (Naveen Kumar Kashyap) Registrar 11. The above directions and clarifications clearly indicate that when the matter has been reserved for judgment, which has been re-notified for de novo hearing, such Bench need to recall the order for de novo hearing and thereafter proceed to pass the orders/ judgments in reserved case. In this context, we may also refer to the relevant part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. IA 5177/2023 2. This application has been filed by the Corporate Debtor to dereserve the Company Petition No. 769 of 2022 of the order dated 26.06.2023. Ld. Counsel for the Applicant submits that subsequent to the reservation of the order 26.06.2023, a new development has happened that DRT-1, Mumbai passed an order in SA No. 116/2019 setting aside the date of declaration of default. In view of the that, he pressed for rehearing of the matter. 3. Ld. Counsel for the FC is present through VC. However, he has some difficulty with some audio and she can neither hear us nor we can hear her. It is made clear that the matter would be heard on the next date of hearing and counsel for the FC should either present physically or ensure that the audio is clear. It is also made clear that this matter is old, therefore, no further adjournment will be granted. 4. List this application along with the other pending application listed on 04.03.2024. 14. Subsequently, IA No.5177 of 2023 was heard on 04.03.2024 and following order was passed by the existing Bench-III: ORDER Hearing Through: Virtually and Physical (Hybrid) Mode Adv. Nausher Kohli a/w. Adv. Somy for Financial Creditor in CP and for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to await the orders on IA No.5177 of 2023, which was reserved on 04.03.2024, i.e., prior to pronouncement of order in the main Company Petition. The circulars and directions of the President only regulate the procedure for pronouncement of judgment; constitution of Benches; constitution of Special Benches and allocation of business, but does not fetter the jurisdiction of the Adjudicating Authority to exercise its judicial discretion in a particular manner. 17. In any view of the matter, the orders passed by Adjudicating Authority on 22.03.2024 is in Appeal. The Appeal is continuation of the original proceedings. The learned Counsel for the Appellant has relied on the judgment of the Hon ble Supreme Court in (2022) 7 SCC 678 Ramnath Exports Pvt. Ltd. vs. Vinita Mehta and Anr. where the Hon ble Supreme Court in paragraph 9 laid down following : 9. After having heard the learned counsel for the parties and on perusal of the material available, we have read the provision of Section 96CPC, which provides for filing of an appeal from the decree by any court exercising original jurisdiction to the court authorised to hear appeals from the decisions of such courts. It is also settled that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect according to the law as it then stood:Quilter v. Mapleson (1882) 9 QBD 672 ; see also Attorney-General v. Birmingham, Tame, and Rea District Drainage Board (1912) 1912 A C 788 where it was reaffirmed that an appeal to the Court of appeal is by way of rehearing, and the Court may make such order as the Judge of the first instance could have made if: the case had been heard by him at the date on which the appeal was heard. 20. Justice Yaradachariar explaining in its concurring judgment has laid down that when an Appeal has been filed, the matter becomes sub-judice again and Court has seisin of the whole case. In paragraph 30 of the Judgment following was observed: 30. Once the decree of the High Court had been appealed against, the matter became sub judice again and thereafter this Court had seisin of the whole case, though for certain purposes, e.g., execution, the decree was regarded as final and the Courts below retained jurisdiction. In Subhanand v. Apurba Krishna ('40) 27 AIR 1940 FC 7 this Court has held that the mere fact that the particular statute in respect of which the constitutional question was originally raised had been since repealed will not put an end to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urari Lal jalan and Mr. Florian Fritsch, this Tribunal in paragraph 83, 84, 85, 86 and 87, laid down following: 85. The Hon ble Supreme Court in the said case in paragraph-5 of the judgment has quoted with approval opinion of Varadachariar. J., which is to the following effect: It is also on the theory of an appeal being in the nature of a re-hearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in a case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against. 86. As noted above, the lis between the parties, i.e. Lenders and the SRA being the implementation of the Resolution Plan, different steps and compliances of various clauses of Resolution Plan, time elapsed during litigation between the parties and time lapsed during the proceeding are relevant to be considered to find out the way forward. 87. The proposition laid down by the Hon ble Supreme Court in Pasupuleti Venkateswarlu case was again reiterated by the Hon ble Supreme Court in Om Prakash Gupta vs. Ranbir B. Goyal (2002) 2 SCC 256. In paragraph 11 of the judgment, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
