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Raj Singh Gahlot, Director Of Ambience ... vs Vistra Itcl (India) Ltd. & Anr

National Company Law Appellate Tribunal25 October 2019

Ratio decidendi

The rule this decision rests on

The adjudicating bench of the National Company Law Tribunal, having been constituted of a Judicial Member and a Technical Member, cannot validly pass a final order on an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 where one of those members has retired after the hearing was concluded and before the order was pronounced, and the order passed by the remaining member alone is accordingly vitiated and liable to be set aside. Where the matter has been heard by a Divisional Bench and the final order is pronounced by a single member after the other member's retirement, the proper course is to set aside that order and remit the application for fresh hearing and decision by a properly constituted Divisional Bench, with the adjudicating authority to decide the application on its merits afresh, uninfluenced by the set-aside order.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHICompany Appeal (AT) (Insolvency)No.971 of 2019

IN THE MATTER OF: Raj Singh Gehlot, Director of Ambience Pvt. Ltd. .....Appellant Vs. Vistra ITCL(India) Ltd. & Anr. ......Respondents

Present : For Appellant: Mr. Abhishek Manu Singhvi, Senior Advocate, Mr. Rajiv Ranjan, Senior Advocate, Mr. Amit Bhandari, Ms. Tannya Sharma, Ms. Deepti Gupta, Ms. S. Hazarika, Ms. Aliya, Mr. Ritesh Khare, Advocates

For Respondents: Mr. Arun Kathpalia, Senior Advocate, Mr. Vijay Nair, Mr. M.Sharma, Mr. Paliwal, Ms. Sakshi Kapoor, Mr. Mritunjay Kumar, Advocates

O R D E R

25.10.2019 - The 'Vistra ITCL(India) Ltd.' filed an application Under

Section 7 of the Insolvency & Bankruptcy Code, 2016 ('I&B' Code, for short)

for initiation of 'Corporate Insolvency Resolution Process' against 'Ambience

Pvt. Ltd.' ('Corporate Debtor'), the Divisional Bench of one Hon'ble Member

(Judicial) and another Hon'ble Member (Technical) of 'National Company

Law Tribunal' Bench No. III, New Delhi heard the application on 26th

Company Appeal (AT) (Insolvency)No.971 of 2019 November, 2018 and passed different orders as detailed below as shown in

chart below:-

LIST OF DATES OF ORDERS

Vistra ITCL (India) Limited & Anr Versus Ambience Pvt. Ltd. (NCLT)NCLT Case No. IB-1600(ND)2018

Date Coram Particulars

26.11.2018 Mr. R. Vardharajan Vistra to file documents Mr. V.K. Subbaraj

12.12.2018 Ms. Deepti Mukesh Matter be posted before Mr. V.K. Subbaraj regular bench.

17.12.2018 Mr. R. Vardharajan CD of file reply Mr. V.K. Subbaraj

22.01.2019 Mr. R. Vardharajan Absence of Coram.

Matter adjourned

18.02.2019 Ms. Deepti Mukesh Matter to be posted before regular bench

25.02.2019 Mr. R. Vardharajan Absence of Coram.

Matter Adjourned

11.03.2019 Mr. R. Vardharajan Adjourned at joint request.

Ms. Deepa Krishan

09.04.2019 Mr. R. Vardharajan Final Arguments heard.

Parties directed to file Ms. Deepa Krishan written submission.

22.04.2019 Mr. R. Vardharajan Written submissions filed.

Company Appeal (AT) (Insolvency)No.971 of 2019 2 Reserved for order.

19.07.2019 Ms. Deepa Krishan retires.

27.08.2019 Order delivered & pronounced by Mr. R. Vardharajan

The Appeal was admitted by Hon'ble Member (Judicial) on 27th

August, 2019 as in the meantime one of the Hon'ble Member(Technical) Ms.

Deepa Krishan retired on 19th July, 2019.

The order of 'admission' is challenged on the ground that the matter

having been heard by two Hon'ble Members and the final order could not

have been passed by Hon'ble Member(Judicial).

Dr. Abhishek Manu Singhvi, Learned Senior Counsel appears on

behalf of the Appellant referred to Section 419(3) of the Companies Act and

Rule 152(4) of 'NCTL' Rules, 2016 in support of its claim.

Mr. Arun Kathpalia, Learned Senior Counsel has appeared on behalf

of 'Vistra ITCL(India) Ltd.' ('Financial Creditor') accepts the aforesaid fact.

In the facts and circumstances, as suggested by Learned Counsel for

the parties and we are also of the opinion that the matter may be remitted

back for fresh hearing on merit relating to admission of application Under

Section 7 of the 'I&B' Code after giving liberty to the parties.

Company Appeal (AT) (Insolvency)No.971 of 2019 3 Mr. Sandip, 'Resolution Professional' has appeared with Mr. Mritunjay

Kumar, Learned Counsel and submitted that he has incurred certain

expenses and entitled for fee of last one month 20 days. However, we are

not deciding his claim at this stage as we intend to remit the matter to the

Adjudicating Authority.

We accordingly, set aside the impugned order dated 27th August, 2019

without extending any opinion on merit of the claim and counter claim of

the parties. The matter is remitted back to the 'National Company Law

Tribunal' Bench III, New Delhi should be heard by Divisional Bench of

Hon'ble Member(Judicial) and Hon'ble (Technical) as per the provisions of

the Act and after notice and hearing, the Adjudicating Authority pass

appropriate order in accordance with Law uninfluenced by an impugned

order dated 27th August, 2019. It is expected that the application will be

taken up and disposed of on early date preferably within three weeks from

the date of appearance of the parties. Both the parties will appear before

the Hon'ble President of 'NCLT' on 6th November, 2019 and bring this order

to the notice of Hon'ble President.

In so far as the fee and cost of the 'Resolution Professional' is

concerned, the Adjudicating Authority will decide the same in accordance

with law after the Application Under Section 7 is admitted in case, it will be

decided by the 'Committee of Creditors' as per the provision of the Code.

Company Appeal (AT) (Insolvency)No.971 of 2019 4 The Appeal stands disposed of and remitted with the aforesaid

observations and directions. The Appeal stands disposed of without costs.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice Venugopal M.] Member (Judicial)

[Justice Jarat Kumar Jain] Member (Judicial)

ss/sk

Company Appeal (AT) (Insolvency)No.971 of 2019 5

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