Shyam Kishan Saraf vs Atul Kumar Kansal Resolution ...

In the matter of: Shyam Kishan Saraf ....Appellant Vs. Atul Kumar Kansai ...Respondent Resolution Professional of Universal Buildwell Pvt. Ltd. For Appellant Mr. Shyam Kishan Saraf, Appellant in person For Respondent Mr. Swapnil Gupta, Mr. Vaibhav Mendiretta, Mr. Abhinav Mishra, Advocates.

ORDER

(Hybrid Mode)

31.07.2024: Heard Shri Shyam Kishan Saraf appearing in person as an

Appellant and Counsel for the Resolution Professional.

2. This Appeal has been filed against the order dated 12.06.2024 by which

order the Adjudicating Authority has made very strong observations against

the Appellant that he has been obstructing the proceeding of the Court and

the Adjudicating Authority has also passed an order expressing hope and trust

that Appellant would refrain intimidating and obstructing the Court

proceedings by raising such issues which are under consideration before the

Appellate Tribunal. On 12.06.2024, IA No.3089 of 2021 filed by the Appellant

was also listed in which application, the Appellant prayed for initiating Section

340 CrPC proceeding against the Resolution Professional on some allegations

made in the application. Adjudicating Authority has noticed in the order that

IA No.6063 of 2023 which was filed by the Appellant earlier was disposed of 2

on 06.05.2024. Adjudicating Authority has made observations that why the

Appellant is making submission with regard to issue which was already

disposed of on 06.05.2024. Court also noticed that in earlier application, an

order was passed on 12.09.2023 against which Appeals have been filed by the

Appellant before the Appellate Tribunal which are pending consideration.

3. In this Appeal, Appellant submits that in the order dated 06.05.2024,

Adjudicating Authority had made observations that Appellant could not

explain the ratio of the judgment of the Hon'ble Supreme Court in "Greater

Noida Industrial Development Authority vs. Prabhjit Singh Soni- (Civil

Appeal Nos. 7590-7591 of 2023)" and Appellant was only trying to explain

the ratio of the said judgment. It is submitted that the Appellant had not

obstructed the proceeding.

4. Adjudicating Authority in the impugned order has made following

observations: -

"At this stage, Mr. Shyam Kishan Saraf, who is appearing in person started making submission in respect of IA-6063/2023, which was disposed in terms of order dated 06.05.2024. When he was asked as to why he is talking about the IA which could already been disposed of, he submitted that he is trying to make this Bench to understand what it could not understand while passing the order dated 06.05.2024 in IA-6063/2023. He also started narrating the facts involved in CA- 1500/2019 & CA-1501/2019, disposed of in terms of the order dated 12.09.2023 which orders are admittedly under challenged before Hon'ble NCLAT in the appeals

Company Appeal (AT) (Insolvency) No. 1424 of 2024 3

preferred by Mr. Shyam Kishan Saraf. Even about the IA- 6063/2023, Mr. Shyam Kishan Saraf submitted that might be the order dated 12.09.2023 passed by this Tribunal is under challenged before Hon'ble NCLAT, but since Hon'ble Supreme Court has passed judgment in Greater Noida Industrial Development Authority vs. Prabhjeet Singh Soni & Anr. (Civil Appeal Nos. 7590- 7591 of 2023), irrespective of pendency of the appeal before Hon'ble NCLAT, he has got a cause to ask this Tribunal to reopen its order dated 12.09.2023. We are not aware of any such law, which enable us to look into our order, even for the purpose of review, when the same is under challenged before Hon'ble Appellate Tribunal. Even otherwise also, there is no such provision, in terms of which this Tribunal can review its own order. We are forced to bring it on record that as and when this matter is listed for hearing, Mr. Shyam Kishan Saraf, try to obstruct the proceedings and start talking of the issues involved in CA-1501/2019 & CA-1500/2019 which have already been disposed of by this Tribunal. When with his constant obstruction, we got inclined to take appropriate step to uphold the majesty of law as also the decorum in the Court, Mr. Shyam Kishan Saraf apologised for his conduct of interrupting the Court proceedings again and again. By taking a lenient view, we refrain from taking steps/actions at this stage as is required in the present proceedings, but we record that it is primary duty of any judicial forum to uphold the majesty of law at any cost and if in future Mr. Shyam Kishan Saraf would not so due deference to law and judicial proceedings we will be constrained to take appropriate action. We are forced to record so for the reason that in terms of the order dated 15.05.2024,

Company Appeal (AT) (Insolvency) No. 1424 of 2024 4

Hon'ble NCLAT expected this Tribunal to decide the matter as early as possible and preferably within two months from the date of appearance of the parties. The approach shown by Mr. Shyam Kishan Saraf almost on every date of hearing to obstruct the proceedings in a way also comes in the way aforementioned order passed by Hon'ble NCLAT in Company Appeal (AT) (Insolvency) No. 1017 of 2023 & IA No. 3486, 3487, 3488 of 2023, 1709 of 2024. Even otherwise also, any attempt or adventure by any party, expecting us to pass any order in respect of case which is pending for determination before Hon'ble Appellate Court amounts to demeaning the judicial propriety and need to be dealt with strongly."

5. Counsel for the Resolution Professional submitted that on the date

12.06.2024 only application listed was IA No.3089 of 2021 which was

application under Section 340 CrPC and Court decided to defer the application

and await the decision of the Appellate Tribunal since issues which are sought

to be raised in Section 340 CrPC application had bearing on the decision of

the Appellate Tribunal. It is submitted that the Appellant is in habit of

appearing and are making long arguments by raising several issues which may

not be relevant for the matters which are listed before the Court.

6. We have considered the submissions of parties and perused the record.

From the order passed by the Adjudicating Authority, it is clear that on

12.06.2024, when the order was passed only IA No.3089 of 2021 filed by the

Appellant was listed in which Appellant sought prayer to initiate Section 340

Company Appeal (AT) (Insolvency) No. 1424 of 2024 5 CrPC proceeding against the Resolution Professional in which application no

order has been passed since the Adjudicating Authority noticed that certain

issues having bearing on the application are pending consideration before the

Appellate Tribunal. The explanation which was sought to be submitted by the

Appellant is that he wanted to explain the judgment of the Hon'ble Supreme

Court in "Greater Noida Industrial Development Authority vs. Prabhjit

Singh Soni" (supra) which was noticed in the order dated 06.05.2024 does

not commend us. The observations made by the Adjudicating Authority in

regard to judgment of the "Greater Noida Industrial Development

Authority vs. Prabhjit Singh Soni" in order dated 06.05.2024 are to the

following effect:-

"Mr. Shyam Kishan Saraf asked us to refer to the judgment of Hon'ble Supreme Court passed in Greater Noida Industrial Development Authority vs. Prabhjit Singh Soni (Civil Appeal Nos. 7590-7591 of 2023). It is difficult for us to comprehend, when reliance is placed on the judgment of Hon'ble Supreme Court, without espousing the legal proposition, which is sought to be supported by the judgment, that in what context, the party want us to read the judgement. Nevertheless, as we understand from the judgment, the ratio decidendi of the same is that this Tribunal can recall the order of approving the plan. Nevertheless, once the applicants have challenged our order before Hon'ble NCLAT, we are unable to appreciate that how we can re-examine the same for any purpose."

Company Appeal (AT) (Insolvency) No. 1424 of 2024 6

7. We do not find any occasion to explain the judgment of the Hon'ble

Supreme Court when IA No.3089 of 2021 filed by the Appellant was listed on

12.06.2024. The submission which was advanced by the Appellant was wholly

irrelevant for the issue which was to be considered by the Court on the said

date. We find that the observations made by the Court are based on relevant

consideration and we do not find any ground to expunge the remarks.

8. Shri Shyam Kishan Saraf has cited the judgment of the Hon'ble

Supreme Court in "Neeraj Garg vs. Sarita Rani and Ors.- Civil Appeal Nos.

4555-4559 of 2021". He has referred to paragraphs 15 to 18 which are as

follows:-

"15. While it is of fundamental importance in the realm of administration of justice to allow the judges to discharge their functions freely and fearlessly and without interference by anyone, it is equally important for the judges to be exercising restraint and avoid unnecessary remarks on the conduct of the counsel which may have no bearing on the adjudication of the dispute before the Court.

16. Having perused the offending comments recorded in the High Court judgments, we feel that those could have been avoided as they were unnecessary for deciding the disputes. Moreover, they appear to be based on the personal perception of the learned Judge. It is also apparent that the learned Judge did not, before recording the adverse comments, give any opportunity to the Appellant to put forth his explanation. The remarks so recorded have cast aspersion on the professional integrity of the appellant. Such

Company Appeal (AT) (Insolvency) No. 1424 of 2024 7

condemnation of the Counsel, without giving him an opportunity of being heard would be a negation of the principles of audi alteram partem. The requisite degree of restraint and sobriety expected in such situations is also found to be missing in the offending comments.

17. The tenor of the remarks recorded against the appellant will not only demean him amongst his professional colleagues but may also adversely impact his professional career. If the comments remain unexpunged in the court judgments, it will be a cross that the Appellant will have to bear, all his life. To allow him to suffer thus. would in our view be prejudicial and unjust.

18. In view of the forgoing, we are of the considered opinion that the offending remarks recorded by the learned judge against the appellant should not have been recorded in the manner it was done. The appellant whose professional conduct was questioned, was not provided any opportunity to explain his conduct or defend himself. The comments were also unnecessary for the decision of the Court. It is accordingly held that the offending remarks should be recalled to avoid any future harm to the appellant's reputation or his work as a member of the Bar. We therefore order expunction of the extracted remarks in paragraphs 4,5,6, and 7 of this judgement. The appeals are accordingly disposed of with this order."

9. There can be no dispute to the proposition of law that the adverse

comments which are unnecessary and made without opportunity can always

be set aside. The present is a case where observations made by Adjudicating

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Authority were during course of the hearing on 12.06.2024 when the Appellant

was appearing in person. At the time of deciding the application, no litigant

even if he is appearing in person has freedom to make any submission which

he so feels nor any litigant is entitled to waste time of the Court where large

numbers of cases are pending consideration.

10. Counsel for the Resolution Professional submits that the Appellant who

is appearing in person has already filed eight applications before the

Adjudicating Authority and five Company Appeals arising of the same dispute.

11. We do not find any ground to interfere with the impugned order. The

observations made by the Adjudicating Authority were based on sufficient

reasons. What Court has observed has to be given weight and observations

cannot be lightly expunged as sought to be contended by the Appellant

appearing in person.

12. We do not find any error in the order impugned passed by the

Adjudicating Authority. The appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical)

Anjali/nn

Company Appeal (AT) (Insolvency) No. 1424 of 2024