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TMI Blog2020 (9) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... - It is expected that all the High Courts shall keep a close watch on the functioning of DRTs and DRATs, which fall within their respective jurisdictions. The High Courts shall ensure a smooth, efficient and transparent working of the said Tribunals. It would have been appropriate in the larger interest of justice for the learned Single Judge to dispose of the petition by issuing appropriate directions in exercise of power under Article 227 of the Constitution rather than outright rejecting the writ application and that too with costs of ₹ 10,000/-. The materials on record do indicate that there is a acute problem faced by many lawyers in the NCLT at Ahmedabad as regards the mode and manner of the functioning of the Courts. It goes without saying that the procedure that may be followed must be consistent, and at the same time, should be reasonable so as not to put anyone in difficulty. If the Court No.2 of the NCLT at Ahmedabad has been very consistent with the mode of hearing, then we see no good reason why the Court No.1 should give any reason for the lawyers to redress so many grievances. In any form of administration, some difficulties are bound to be experienced, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following reliefs: (A) Be pleased to allow this petition. (B) Be pleased to issue writ in the nature of mandamus or any other writ /order/direction to National Company Law Tribunal at Ahmedabad, to conduct the proceedings in all applications in CP(IB) no.14 of 2018 by physical hearing as and when the same is permitted by the National Company Law Tribunal, Delhi Principal Bench, State of Gujarat and other authorities in light of COVID-19 pandemic. (C) Be pleased to issue writ in the nature of mandamus or any other writ /order /direction to quash and set aside the order dated 21.07.2020 passed by the National Company Law Appellate Tribunal at New Delhi in CA (AT) (I) No.576 of 2020. (D) Be pleased to issue writ in the nature of mandamus or any other writ /order /direction to quash and set aside the order dated 27.07.2020 passed by the National Company Law Tribunal, Ahmedabad in CP(IB) No.14 of 2018 and connected matters. (E) Pending admission, hearing and final disposal of this petition, be pleased to stay the proceedings in CP(IB) No.14 of 2018 and connected matters pending before National Company Law Tribunal, Ahmedabad. (F) Pass such other order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bearing through virtual mode. 2. In view of the events that have intervened bringing the Wheels of justice to a halt, we direct the Adjudicating Authority to hear the matter expeditiously alongwith all IAs according priority to the matter as the same pertains to insolvency resolution which process was commenced on 20th February, 2018. 3. We hope and expect that the Adjudicating Authority would hear the matter with utmost expedition and dispose of the same without any further loss of time. This direction for expeditious disposal shall be notwithstanding the mode of hearing which shall be decided by the Adjudicating Authority. The appeal is accordingly disposed of. 7. At the same time, the appellant herein also prayed before the learned Single Judge to quash and set aside the order dated 27th July 2020 passed by the NCLT at Ahmedabad in the CP(IB) No.14 of 2018, which reads thus: ORDER Learned Senior Counsel Mr. Navin Pahwa appeared for the RP. Learned Senior Counsel Mr. Mihir Thakore appeared for the Successful Resolution Applicant. Learned Senior Counsel Mr. Sourabh Soparkar appeared for Enorcon Gmbh. Hon ble NCLAT directed this Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry inconsistent practice as regards the mode of hearing. It is pointed out to us that if a particular lawyer appears physically before the Tribunal, then the hearing is conducted in physical form though the lawyer for the other side may not be present as he would be expecting the Court No.1 to conduct virtual hearing. Mr. Desai would submit that if the Court No.1 of the Tribunal wants to go for physical hearing, then the consent of all the lawyers appearing in the particular litigation should be first obtained, and only thereafter, the physical hearing should be conducted. If any lawyer has any difficulty with regard to physical hearing, then the Court No.1 should adopt the mode of virtual hearing. 13. Mr. Desai would submit that there are many other issues, which the NCLT at Ahmedabad needs to take into consideration for proper and effective functioning, and all such issues have been highlighted in the representation dated 29th July 2020 made by the President of the Association. Mr. Desai would submit that till this date, no heed has been paid to such representation. 14. Mr. Desai also pointed out that even the present platform for virtual hearing is completely unworkable, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omprehend the submission of other side is completely unfair, arbitrary and violative of principles of natural justice. It is submitted that such hearing cannot stand the of fairness as enshrined under test of Article 14 of the Constitution of India. On most occasion, there is disruption in voice or video. Hence, the counsel / practitioner appearing, virtually cannot get meaning and effective hearing. Whereas the counsel / practitioner appearing physically can literally hijack the proceedings before the ld. Tribunal. It is submitted that in the case of the appellant itself, their advocate on record was present physically. However, their arguing counsel could not login for virtual hearing since the maximum capacity of this platform is 20 to 25 participants. Therefore, the appellant herein did not get a fair chance of audience before the Ld. Tribunal through advocate of their choice. 17. Mr. Desai also invited the attention of this Court to para 16 of the memorandum of appeal, wherein the other difficulties faced by the lawyers has been enumerated. The same reads thus: The Ld. Lawyers appearing before the Hon ble Tribunal are muted during the course of heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2020 through Zoom platform and it was decided to make following representations before the Hon ble Tribunal: 1. A request for change of platform for virtual hearing is emphatically reiterated as the present platform in respect of the virtual hearing is completely unworkable and unstable. There are time when the voice breaks down, connection is very poor and image disappears. More serious problems is that it is very difficult to gain entry in the virtual room. One has to try, sometimes, scores of times to gain entry to find, very soon that he is thrown out . It is impossible to conduct any hearing in a meaningful way on this platform. As a goodwill gesture and in order to strengthen bar and bench relation, the association is willing to arrange a different platform for virtual hearing if so deemed appropriate by the Hon ble Tribunal till such time the tribunal can come up with the alternate platform or, if desired permanently. 2. However, it is requested that till there is a change in platform and till the virtual hearing procedure is not streamlined. Hon ble Tribunal may not pass any coercive order or record absence of counsel / parties. In case of absence of counsel / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to hear the arguments which are being made on a physical basis and secondly they would not be in a position to answer the issues that are being raised against them; 8. Lastly, the matter may not be reserved for order and viceversa by calling upon practitioners to give written submission and without conducting virtual hearing unless all the practitioners are agreeable for waiving their right of hearing and are willing to conclude the matter by way of written submission. (A copy of resolution passed by managing committee pursuant to meeting dated 28.07.2020 is annexed along with the letter as Annexure-1) The managing committee of the association humbly requests the Hon ble Tribunal to consider this representation positively and oblige. Thanking you in anticipation. Yours sincerely, Shri Mihir Thakore President Ahmedabad National Company Law Practitioners Association 19. In such circumstances referred to above, Mr. Desai, the learned senior counsel appearing for the appellant prays that there being merit in his appeal, the same may be allowed and the impugned order passed by the learned Single Judge may be set aside. He further prays th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned counsel appearing for the respondent No.12. Mr. Dhir, Mr. Masoom Shah and Mr. Maulik Nanavaty, in one voice, submitted that the practice adopted by the Court No.1 in the NCLT, as on date, is very inconsistent and creating lot of difficulties for the lawyers. All the learned counsel would submit that having regard to the current situation of COVID-19 pandemic, it is not advisable to go for physical hearing and the Court No.1 of the Tribunal should adopt the mode of virtual hearing. All the learned counsel assure this Court that they would cooperate and not delay the proceedings. All the learned counsel pray before this Court that appropriate directions may be issued to the NCLT at Ahmedabad with regard to the functioning of the Court so as to bring uniformity in the conduct of such proceedings. 23. Having head the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the learned Single Judge committed any error in rejecting the writ application. 24. The Supreme Court in Union of India vs. Debts Recovery Tribunal Bar Association reported in (2013) 2 SCC 574 observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate directions in exercise of power under Article 227 of the Constitution rather than outright rejecting the writ application and that too with costs of ₹ 10,000/-. The materials on record do indicate that there is a acute problem faced by many lawyers in the NCLT at Ahmedabad as regards the mode and manner of the functioning of the Courts. It goes without saying that the procedure that may be followed must be consistent, and at the same time, should be reasonable so as not to put anyone in difficulty. If the Court No.2 of the NCLT at Ahmedabad has been very consistent with the mode of hearing, then we see no good reason why the Court No.1 should give any reason for the lawyers to redress so many grievances. In any form of administration, some difficulties are bound to be experienced, but, some rational approach should be adopted, by which, the difficulties are eased and no scope is left for anyone to complain. 27. The reasoning assigned by the learned Single Judge in the impugned order that there is no contemporaneous record to indicate that part physical and part virtual hearing is going on before the Tribunal, prima facie, appears to be contrary in wake of the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erating procedure (SOP) in consultation with the Bar for virtual functioning of the Tribunal in tune with the circulars issued by this Court time to time preferably within one week from the date of receipt of the order. Let this exercise be undertaken and completed within a period of one week from the date of receipt of the writ of this order. [2] We make it clear that if any matter is to be heard by adopting the mode of physical hearing, then the consent of all the learned counsel appearing in the litigation should be first obtained. If any counsel has any objection in this regard, then it should not be happen that one set of lawyers are heard physically and the other set of lawyers are heard through virtual mode. In such circumstances, the entire hearing should be virtual. [3] We direct the appellant herein to extend full cooperation in the proceedings before the NCLT and not create any hindrances of any nature so as to delay the proceedings. In this regard, an assurance has been given by Mr. Desai, the learned senior counsel that the appellant will not create any hindrances and will cooperate in all respects for smooth, effective and expeditious disposal of the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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