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TMI Blog2024 (1) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... le Judicial Member can exercise the powers of the Tribunal in respect of such class of cases or such matters pertaining to such class of cases, as the President may, by general or special order, specify - In the present case which is pending since 2020, nothing has been brought on record by the Respondents that there has been a notification in this regard much less in terms of first proviso to Section 419 (3) of the Act authorising the solitary judicial member (Acting President at that time) to entertain unnumbered applications filed by RP and Resolution Applicant to decide the same in such a summary manner, therefore, the answer to this question is that until and unless a notification is issued under the first proviso to Section 419(3) of the Code the single judicial member cannot take upon itself the jurisdiction to entertain an application such like the one in hand and decide the same, therefore, the impugned order has been passed by an authority having no jurisdiction. Administrative order issued on 22.03.2020 by none else than the NCLT - HELD THAT:- This administrative order was issued in the wake of Covid-19. It was specifically mentioned in the said instructions that be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n short CIRP ) against Anush Finlease Construction Pvt. Ltd. (Corporate Debtor), which was admitted on 30.05.2019 and Ashish Gupta was appointed as an Interim Resolution Professional (in short IRP ). 3. The IRP was appointed as RP in the first meeting of Committee of Creditors (in short CoC ) held on 01.07.2019. The RP invited Expression of Interest (in short EOI ) by publication of Form G. M/s Kendriya Bhandar submitted its plan, discussed in the CoC in its 08th meeting held on 13.03.2020 and approved on 17.03.2020. 4. Two unnumbered applications came to be filed one by the RP and other by the Resolution Applicant seeking approval of the resolution plan approved by the CoC of the Corporate Debtor with 77.54%. Both unnumbered applications have been allowed by the Adjudicating Authority on 01.04.2020 with the following impugned orders:- The RP (Ashish Gupta) and the RA (M/s Kendriya Bhandar, Delhi) filed two unnumbered applications seeking approval of the resolution plan approved by the CoC of the Corporate Debtor namely Anush Finlease and Construction Pvt. Ltd. with 77.54% on 14.03.2020, in pursuance of it, Kendriya Bhandra also executed a performance security for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining to such class of cases, as the President may, by general or special order, specify: Provided further that if at any stage of the hearing of any such case or matter, it appears to the Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the President, or, as the case may be, referred to him for transfer, to such Bench as the President may deem fit. 1[(4) The Central Government shall, by notification, establish such number of benches of the Tribunal, as it may consider necessary, to exercise the jurisdiction, powers and authority of the Adjudicating Authority conferred on such Tribunal by or under Part II of the Insolvency and Bankruptcy Code, 2016.] (5) If the Members of a Bench differ in opinion on any point or points, it shall be decided according to the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the President for hearing on such point or points by one or more of the other Members of the Tribunal and such point or points shall be dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 020. The order dated 28.03.2020 is also reproduced as under:- National Company Law Tribunal 6th Floor, Block-3, CGO Complex,Lodhi Road New Delhi-110003 Dated:22.3.2020 NOTICE 1. In view of the lockdown announced by the Government of India until 14.04.2020, to curtail the spread of Covid-19, the directions given in the notice dated 22.03.2020 issued by NCLT are hereby extended upto 14.04.2020. 2. This issues with approval of Hon ble Acting President, NCLT. (Shiv Ram Bairwa) Registrar 8. It is contended that it has been decided and conveyed to all the NCLTs benches across the country that the matters pertaining to extension of time, approval of resolution plan and liquidation will not be construed as urgent matters. Whereas in the impugned order, the Acting President himself while dealing with the resolution plan has observed that he is passing the order keeping in view the urgency involved, therefore, it is submitted that there is a total departure from the instructions issued by the NCLT, which are supposed to be followed by it. 9. On merits, it is submitted that the impugned order is totally nonspeaking and hit by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o in section 5 of the Competition Act, 2002 (12 of 2003), the resolution applicant shall obtain the approval of the Competition Commission of India under that Act prior to the approval of such resolution plan by the committee of creditors.] 10. It is further submitted hat the resolution plan has to be tested on the anvil of Section 30(2) which is conspicuous by its absence in the impugned order, therefore, without going much into merit of the case, it is submitted that the impugned order is totally arbitrary and deserves to be set aside. 11. He has further submitted that in such circumstances this Court may remand the case back to the Adjudicating Authority to decide the issue involved in the application once again by recording reasons. 12. Counsels for the RP as well as SRA have contested the argument of the Appellant. It is submitted by the Respondents that though it is required under Section 419 (3) of the Act that the constitution of bench has to be two members i.e. one Judicial and other Technical but as per first proviso to Section 419(3) the matters can be taken up even by a single member (judicial) but on a prior notification issued in this regard by the Preside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the one in hand and decide the same, therefore, the impugned order has been passed by an authority having no jurisdiction. 19. The second question is in regard to the administrative order which was issued on 22.03.2020 by none else than the NCLT. This administrative order was issued in the wake of Covid-19. It was specifically mentioned in the said instructions that because the whole country is fighting against Covid-19, therefore, during this period the serious matter like extension of time, approval of resolution plan and liquidation shall not be entertained as urgent matters. The President further issued instructions dated 28.03.2020 and extended the order of 22.03.2020 to 14.04.2020 whereas the impugned order has been passed on 01.04.2020 very much during the currency of those instructions. It is needless to mention that on the one hand the Adjudicating Authority itself is issuing instructions that the issue regarding the extension of time, approval of the resolution plan and liquidation should not be treated as urgent matter and on the other hand the Acting President heard the unnumbered applications treating them most urgent and then approved the resolution plan only on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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