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TMI Blog2021 (9) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be gainsaid that if an order/judgment of a Tribunal is not pronounced at all, the same is a nullity in the eye of law , considering the fact that the pronouncement is primarily a judicial act, which is the Sanctum Sanctorum of any judicial proceedings in our justice delivery system , as opined by this Tribunal - If an order/judgment is delivered by a Tribunal ignoramus of rules, then, it will result in untold hardship, misery and unerringly leading to a miscarriage of justice. Moreover, expediency in pronouncement of an Order / Judgment by a Tribunal is not desirable/palatable, in the earnest opinion of this Tribunal . This Tribunal taking note of the totality of the attendant facts and circumstances of the instant case, comes to a resultant conclusion that when the main CP(IB) No.116/NCLT/BB/2020 was heard on 11.12.2020 by the Adjudicating Authority and considering the prime fact that when the matter was listed on 07.12.2020 an interim order was passed adjourning the main case to 11.12.2020, by no stretch of imagination the Impugned Order of the Adjudicating Authority in main CP(IB)No.116/NCLT/ BB/2020 would have been pronounced on earlier date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced in support of such contentions, but not under these summary proceedings under the I B Code, 2016. 13. Further, proceedings under the Code are independent proceedings and proceedings in another forum cannot solely be made a basis for a decision by this Tribunal unless a prima facie case is made out by the Applicant under the provisions of Section 9 of the Code, 2016. On a plain reading of the order dated 18.02.2019 of the MSMEC, it is clear that the Respondent has disputed the quality of goods supplied even before the Council and the same is a matter of record. The nature and purpose of proceedings before the MSME Council are completely different and cannot alone be a basis of this Tribunal s decision under IBC proceedings. This Tribunal is not a dispute resolution mechanism, and cannot be used as a recovery forum for decrees of MSMEC. Under the I B Code, 2016, this Tribunal offers a mechanism to reorganise and resolve the insolvency the Corporate entities etc. in a time bound manner while maximising the value of assets to the benefit of all stakeholders. Unless the Petitioner makes out a case for Insolvency, merely because an order has been passed by the MSMEC cannot hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding, Ld. Counsel for the Respondent while referring to the disputes, once again stated that the Respondent would be ready to settle the same with the Petitioner, provided it adheres to the conditions agreed upon in their MoM. The matter has also been decided by the MSMEC which provides a platform for reaching a settlement. In view of the pre-existing dispute between the two sides, the readiness of the Corporate Debtor to settle the debt, as also for the reason that the Corporate Debtor is a solvent company; we are not satisfied that this is a fit case for ordering CIRP against the Respondent Corporate Debtor. Hence, we consider it fair and just to dispose of the Petition by allowing both parties to settle the matter mutually within a reasonable time, as suggested by the Ld. Counsel for the Respondent. This order will also not come in the way of the Applicant seeking remedy in any other forum for resolution of the dispute or recovery, or for specific performance of any order, in its favour. and resultantly, disposed of the Company Petition without costs, in above manner and also granted liberty to the Appellant /Petitioner to file a fresh petition if no settlement was rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .P.(IB)No.116/BB/2020 Petition was neither pronounced nor listed for pronouncement nor finally heard on the said date by the Tribunal but the same was only adjourned to 11.12.2020 and that the matter was reserved for orders only on 11.12.2020. 8. Added further, on the Appellant side it is pointed out that the Appellant s representative was never admitted into any WhatsApp Group concerned with posting the hearing links, for the respective related parties, after 11.12.2020, for the said purpose of pronouncement of orders. However, before 11.12.2020, the Appellant s representative was admitted to groups. 9. It is brought to the notice of this Tribunal on the side of the Appellant s that Appellant s representative was pointlessly admitted to one of such groups on 03.02.2021 but on that day, also, the case was never listed for any pronouncement. 10. On behalf of the Appellant , a legal plea is projected that the Pronouncement of Order by the Tribunal is a mandatory one as per Rule 150 and 151 of the National Company Law Tribunal Rules, 2016. In this connection, on behalf of the Appellant a reliance is placed on the order of the Hon ble High Court of Bombay date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is great inconvenience to litigants and parties before a court of law if judgments are not duly prepared, signed and pronounced before the Presiding Officers or Members demit office or handover charge on the eve of either transfer or superannuation. The litigants, therefore, should not suffer after rendering full assistance to the Bench to pronounce its final order. The parties have duly discharged their duty of assisting the court either by arguing in person or through advocates. Thus, after the oral arguments are concluded or written submissions are placed on record, all that remains is to pronounce the judgment/ order. If at that stage, those who heard the case are not available, but have duly prepared and signed the judgment, then, pronouncement of the judgment and order in their absence is permissible so as to avoid inconvenience or prejudice to the litigants. These are, therefore, enabling rules and one must note the language of sub-rule (2) of Rule 152, which says that the Member authorised to pronounce the order by the president, if making that pronouncement, that would be deemed to be a due pronouncement. The Member so authorised shall affix his signature in the order s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been duly complied with and in token thereof affix his initials with date on the outer cover of the order. Then, the further steps have to be taken by the Deputy Registrar. The copies have to be made. A communication of the order to the parties is contemplated by sub-rule (3) of Rule 157 but after that is pronounced by the Bench. The steps prior to the communication are as crucial as the pronouncement. 90 . If the Judgment is not pronounced at all, then, such an order is nullity. 12. While summing up, it is submitted on behalf of the Appellant that the Impugned Final Order dated 07.12.2020 passed by the Adjudicating Authority in CP(IB) No.116/BB/2020 is a nullity, bad in law, without jurisdiction and in negation of the Principles of Natural Justice and procedure established by Law. ASSESSMENT: 13. At the outset, this Tribunal points out that on 07.12.2020 the Adjudicating Authority (National Company Law Tribunal, Bengaluru Bench) in CP(IB) No.116/BB/2020, in the Cause List had mentioned under the caption purpose for Clarification and mentioned the name of Advocates appearing for the parties. In fact, on 07.12.2020, the Adjudicating Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pronouncement nor finally Heard on the said date, especially, in the teeth of the main Company Petition (IB/116/BB/2020) was only stood over/adjourned to 11.12.2020. 19. It is the stand of the Appellant that there was no communication of the Impugned Order to the Appellant through any of the mode prescribed under the NCLT Rules, 2016 and besides this, the 1st Respondent/Registrar, National Company Law Tribunal, Bengaluru Bench had failed to list the matter for Pronouncement of Orders. 20. On behalf of the Appellant heavy reliance is placed on the order of the Hon ble High Court of Bombay dated 29.11.2019 in WP(L) No.3250 of 2019 between Kamal K Singh, Mumbai 400 005 v Union of India through the Ministry of Corporate Affairs Mumbai and 5 others wherein at Paragraph 72 and 73, it is observed as under: 72 Therefore, by sub-rule (1) of Rule 89, the Registry is required to prepare and publish on the notice board of the Registry before the closing working hours on each working day the cause list for the next working day and subject to the directions of the President, listing of cases in the daily cause list shall be in the order of priority, unless otherwise ordered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 will make this aspect further clear. Rule 91 requires diaries to be maintained by the clerk-in-charge in such form as may be specified in each appeal or petition or application and they shall be written legibly. The diary in the main file shall contain a concise history of the appeal or petition or application, the substances of the order passed thereon and in execution proceedings, it shall contain a complete record of all the proceedings in execution of order or direction or rule and shall be checked by the Deputy Registrar and initiated once in a fortnight. It is not that signatures have to be appended or that they rule demands a strict compliance. We can understand an omission or irregularity not vitiating the proceedings in their entirety. However, we cannot condone something which results in failure or miscarriage of justice. That is how Rule 92 of the NCLT Rules, 2016 requires the Court Master of the Bench to maintain order sheet in every proceedings and shall contain all orders passed by the tribunal from time to time. Rule 93 provides for maintenance of court diary. The parties or legal practitioners are also required to furnish to the Court Master a list of law jour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B Code is the National Company Law Tribunal. 25. It cannot be forgotten that if a particular act is to be performed in a particular manner, then, it has to be performed only in that way and not otherwise. Indeed, a procedural wrangle cannot be allowed to be shaked or shackled with. Also that the judicial function of a Tribunal is to be transparent and per contra, it is not to be conducted/performed in an opaque manner. 26. In the light of the foregoings, on a careful consideration of the contentions advanced on behalf of the Appellant and this Tribunal taking note of the totality of the attendant facts and circumstances of the instant case, comes to a resultant conclusion that when the main CP(IB) No.116/NCLT/BB/2020 was heard on 11.12.2020 by the Adjudicating Authority and considering the prime fact that when the matter was listed on 07.12.2020 an interim order was passed adjourning the main case to 11.12.2020, by no stretch of imagination the Impugned Order of the Adjudicating Authority in main CP(IB)No.116/NCLT/ BB/2020 would have been pronounced on earlier date on 07.12.2020. Further, when the said final Impugned Order dated 07.12.2020 was not to be f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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