Raj Singh Gahlot, Director Of Ambience ... vs Vistra Itcl (India) Ltd. & Anr
- CitationCompany Appeal (AT) (Insolvency)No.971 of 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
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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