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Judgment
ORDER
15.02.2022: Heard Shri Ankur Mittal, Learned Counsel for the Appellant, Ms. Honey Satpal, Learned Counsel for the Respondent No.1 and Shri Rajesh Kr. Gautam, Learned Counsel for Respondent No.2.
This Appeal has been filed against the order dated 17.12.2021 passed by the Adjudicating Authority (National Company Law Tribunal), Indore Bench at Ahmedabad in I.A No. 204(MP)2021 by which Adjudicating Authority has noting the fact that the main matter is referred to the third Bench by the order of the Hon’ble President and further orders are required from President only pending hearing of the main Application, directed to maintain status quo. Aggrieved by the said order, State Bank of India has come up in the Appeal.
Learned Counsel for the Appellant submits that there have been several orders and proceedings with regard to the main proceeding being TP 123 of 2019 in CP (IB) 137 of 2019. He submits that the order of status quo has been passed whereas the main petition has not yet been considered and last order passed by the Single Bench on 03.12.2021 where Learned Single Bench has again observed that the matter be listed before the appropriate Bench.
Before proceeding further, it is necessary to notice certain orders which have been passed in this proceeding. On 30.01.2020, while hearing the Company Petition, an order was passed where one of the Members i.e. Judicial Member has recused from this case due to personal reasons. The order was issued by the Member Technical where the fact that Member Judicial has recused has been noticed and request was made to Registry to make arrangement that matter be heard. It is useful to extract the last two paragraphs of the order which is to the following effect:-
“Now, the Hon’ble Member (J) recuses from this case on some personal reasons in IA 19 of 2020 in TP 123 of 2019 [(IA 12 of 2020 in C.P (I.B) 137 of 2019] but the undersigned [Hon’ble Member (T)] is not recusing from the above IA and main petition. Hence, the Registry may take up the matter with NCLT, New Delhi, for arrangement of another Judicial Member, so that the matter can be heard by the undersigned and other Member (J) for disposal of this IA 12 OF 2020 and main CP (IB) 137 of 2018 filed under Section 7 of Insolvency & Bankruptcy Code, 2016 on merit without further loss of time.”
After the aforesaid order, a notification was issued by the Registrar on 11.03.2020 by which the main Company Petition was placed before a Single Bench.
Against the aforesaid order, Company Appeal (AT) (Ins.) No. 726-727 of 2020 was filed by the Corporate Debtor which was disposed off by this Tribunal on 24.08.2020 where request was made to the Hon’ble President to constitute a Bench comprising of a Judicial Member and a Technical Member for disposal of the matter in hand.
Subsequent to the aforesaid order dated 24.08.2020, matter was heard and reserved by the Division Bench on 25.11.2021. Subsequently, on 29.11.2021, another Administrative Order was passed by the Hon’ble President for placing the matter before Single Bench. On 01.12.2021, Division Bench noticing the fact that the matter has been referred to Single Member due to difference of opinion, released the matter and fixed for further consideration. Thereafter, Single Member of the NCLT considered the matter. On 03.12.2021, Single Member again made following observations:-
“This is a peculiar situation where the Corporate Debtor has already admitted the claim and only formal order of initiation of CIRP needs to be passed, but for the jurisdiction of which Bench, is the only question to be decided. The parties are directed to take appropriate steps to obtain the directions with respect to listing/ hearing of the matter before appropriate Bench.”
The effect of the aforesaid proceeding is that the main Company Petition has not been finally heard due to the facts noticed in the order of both Division Bench and Single Member. The order of this Tribunal dated 24.08.2020 is clear that the matter is to be placed before a Bench comprising of Judicial Member or Technical Member, therefore, the matter ought to have been placed before a Bench comprising of Judicial Member or Technical Member for deciding the main Company Petition. The original order dated 30.01.2020 clearly records that the Judicial Member has recused, hence that order cannot be read any difference of opinion. After refusal there are no two opinions available to find out any difference of opinion. We, thus, are of the view that the matter has to be listed before a Bench consisting of Judicial Member and Technical Member as has already been held by this Tribunal in its judgment dated 24.08.2020, noticed above.
In view of the aforesaid, we are of the view that the Learned President of the NCLT may take appropriate Administrative decision for listing the matter before a Bench consisting of Judicial Member and Technical Member. The copy of this order be placed by the Registrar before the Hon’ble President for passing appropriate order within a week from today.
Learned Counsel for the Appellant has also questioned the order of status quo passed by the Adjudicating Authority on 17.12.2020, which order is impugned in the present Appeal. The Adjudicating Authority in the impugned order has noticed the aforesaid fact that matter is still awaiting order of the President, hence, during this status quo has to be maintained. We see no reason to entertain this Appeal against the said order which is order of interim nature and is subject to any further order passed by the Adjudicating Authority. We, thus, dispose of this Appeal with observation that copy of this order be placed before the President by the Registrar, NCLT for passing appropriate order for listing the main Company Petition before a Bench consisting of Judicial Member and Technical Member. It shall always be open for the Appellant to make request of passing any further order including the vacation of interim order, if they are so advised.
With these observations, the Appeal is disposed of.