2020 (8) TMI 398 - HC - Insolvency and Bankruptcy

Hearing of petition - matter listed for hearing on virtual mode - grievance is that it should not be partly physical and partly through virtual hearing - HELD THAT - The readiness shown before this Court orally about hearing through virtual platform, it runs counter to his prayer made in this petition at paragraph 35(B), with a view to delay the proceedings, which is ordered by the NCLAT to be heard expeditiously. The sequence of events, which took place on 27.07.2020, the date of hearing, stated on oath by the petitioner, is not recorded in the order by the adjudicating authority dated 27.07.2020, which is at page 28. The said assertion on oath cannot be believed to be true unless it is found in the order itself. Any assertion on oath made in any petition cannot dislodge what is recorded in the order of the Court or Tribunal. Even if it has happened, there is no contemporaneous record to suggest the same. The issue that the hearing before the adjudicating authority whether it should be by virtual mode or physical mode or partly virtual mode or partly physical mode requires to be determined by the authority subject to the instructions issued by the appellate authority or instructions issued by the competent Government in view of a situation like this pandemic for a particular course of action. However, under Article 226 of the Constitution of India, this Court cannot issue mandamus for which there is no prayer made to the authority conducting hearing. If any party has any constraints joining virtual hearing or physical hearing, they may ventilate that grievance before the adjudicating authority or the appellate authority thereof. The reliance placed on the press note dated 27.07.2020 issued by the High Court permitting hard copy i.e. physical filing of the matters in subordinate Courts is again issued to the subordinate Courts by the High Court and that too for the purpose of filing only. Nowhere the High Court has permitted even physical hearing, and therefore, the reliance placed on the same is erroneous. Entertaining this petition any further where the NCLAT has directed the adjudicating authority the expeditious disposal of the proceedings would amount to setting aside the order passed by NCLAT, the jurisdiction of which is not with this Court - this petition is rejected with cost of ₹ 10,000/-.

Summary

Issues:
1. Jurisdiction of the High Court to entertain the writ petition challenging orders of NCLT and NCLAT.
2. Mode of conducting hearings by the adjudicating authority during the COVID-19 pandemic.
3. Authority's discretion in determining the mode of hearing.
4. Applicability of mandamus in directing the mode of hearing.
5. Challenge to the order of NCLAT for expeditious disposal of proceedings.

Analysis:

Issue 1: Jurisdiction of the High Court
The petitioner challenged orders of NCLT and NCLAT, arguing that the High Court had jurisdiction to entertain the writ petition. The Senior Advocate cited various legal precedents to support the maintainability of the petition before the High Court.

Issue 2: Mode of Hearings during COVID-19
The petitioner sought physical hearings before NCLT at Ahmedabad due to issues faced with virtual hearings. However, the Court noted that the readiness for virtual hearings contradicted the prayer for physical hearings, which could delay the proceedings. The Court emphasized the importance of contemporaneous records in determining the veracity of events.

Issue 3: Authority's Discretion in Determining Hearing Mode
The Court highlighted that the authority conducting the hearing should determine the mode, subject to instructions from appellate authorities or the government. It clarified that the High Court cannot issue mandamus without a specific prayer to the adjudicating authority.

Issue 4: Mandamus in Directing Hearing Mode
The Court emphasized that parties should address any constraints regarding virtual or physical hearings directly to the adjudicating authority or the appellate authority. It stated that the High Court cannot dictate the manner in which the authority conducts proceedings.

Issue 5: Challenge to NCLAT's Order for Expeditious Disposal
The Court rejected the petition as an attempt to avoid participating in expedited proceedings directed by NCLAT. It clarified that challenging NCLAT's order fell under the jurisdiction of the Supreme Court, not the High Court.

In conclusion, the High Court dismissed the petition with a cost of ?10,000, emphasizing that the authority conducting the proceedings should decide the mode of hearing based on resources and technology availability. The Court highlighted that fundamental rights do not include choosing a specific hearing medium and that challenges to orders of appellate tribunals should be addressed through statutory appeals.