Gujarat High Court
Dineshchandra Bhagwandas ... vs Resolution Professional Of Swiss ... on 26 October, 2021
Bench: Bhargav D. Karia
C/SCA/5042/2021 ORDER DATED: 26/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5042 of 2021
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 5042 of 2021
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 3 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 5042 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 5090 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 5088 of 2021
================================================================
DINESHCHANDRA BHAGWANDAS JARIWALA
Versus
RESOLUTION PROFESSIONAL OF SWISS RIBBONS PVT. LTD. GEORGE
SAMUEL
================================================================
Appearance:
MR KAMAL TRIVEDI, SENIOR ADVOCATE WITH MR VISHWAS K
SHAH(5364) for the Petitioner(s) No. 1,10,11,12,2,3,4,5,6,7,8,9
MR ATUL SHARMA(11174) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4,5
================================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 26/10/2021
ORAL ORDER
Heard learned Senior Advocate Mr.Kamal
Trivedi assisted by learned advocate Mr.Vishwas
Shah for the petitioners and learned advocate
Mr.Sandeep Singhi assisted by learned advocate
Mr.Atul Sharma for the respondent No.1.
2. Considering the averments made in the
application, the Civil Application (FOR BRINGING
HEIRS) No.3 of 2021 is allowed. The legal heirs
of the deceased Dineshchandra Bhagwandas Jariwala
are ordered to be brought on record of Special
C/SCA/5042/2021 ORDER DATED: 26/10/2021
Civil Application No.5042 of 2021.
3. This Court passed the following order on 18th
March, 2021 :
"Heard learned advocate Mr.Vishwas K Shah for the
petitioners. It is pointed out from the averments
made in paragraph 2.18 of the petition that the
respondent no.5-National Company Law Tribunal
(`NCLT' for short) had heard all the matters and the
matters were reserved for judgment vide order dated
19.1.2020. Thereafter, matters were not notified in
the cause list published by NCLT for pronouncement.
The advocates of the petitioners were regularly
checking the cause list daily of Court no.2 of NCLT,
Ahmedabad to track the pronouncement of the matter.
It is further stated that on 8.3.2021, the
petitioners got an e-mail from RP intimating
uploading of order dated 1.3.2021 on NCLT website.
When the petitioners checked the cause list of
1.3.2021, it was revealed that the matter of the
petitioners was not listed in the said cause list or
the supplementary cause list. Hence, there is no
pronouncement in realm of law. Learned advocate has
referred to page nos.365 and 381 of the compilation
in support of the aforesaid statement. At this
stage, learned advocate has referred and placed
reliance upon the decision rendered by the Bombay
High Court in the case of Kamal K Singh V/s Union of
India, Through the Ministry of Corporate Affairs and
Others being Writ Petition (L) No.3250 of 2019
decided on 29.11.2019 and submitted that in almost
similar type of facts, the Bombay High Court has
quashed the order and matter was remanded back to
NCLT. Copy of the said decision is placed on record.
In view of the aforesaid submissions canvassed
by learned advocate for the petitioner, issue Notice
to the respondents returnable on 28.4.2021. Till
next date of hearing, ad-interim relief in terms of
paragraph 9(B) is granted. Direct service is
permitted."
C/SCA/5042/2021 ORDER DATED: 26/10/2021
4. It appears that thereafter, the matter is
adjourned from time to time.
5. Learned Senior Advocate Mr.Trivedi assisted
by learned advocate Mr.Shah referred to the order
dated 11th August, 2021 passed by this Court
(Coram: Hon'ble Mr.Justice Nikhil S. Kariel) in
Special Civil Application No.11031 of 2021 and
submitted that if similar order is passed in the
present proceedings, the grievances of the
petitioners would be taken care of.
6. On the other hand, learned advocate
Mr.Sandeep Singhi appearing for the respondent
No.1 submitted that if time bound schedule is
fixed by this Court to complete the ceremonial
formalities of giving an opportunity to the
petitioners after pronouncement of the order by
the Tribunal within a period of 2-3 days, the
respondents are agreeable for such order to be
passed.
7. This Court passed the following order in
Special Civil Application No.11031 of 2021 on 11th
August, 2021 :
"Heard learned Advocate Mr. Vishwas K. Shah for the
petitioner, learned Senior Advocate Mr. Navin Pahwa
with learned Advocate Mr. Anip A. Gandhi for the
respondent no.1, learned Advocate Mr. Raju K.
Kothari for respondent no.1.
C/SCA/5042/2021 ORDER DATED: 26/10/2021
2. A grievance is raised in the present petition
inasmuch as it is contended by the learned Advocate
for the applicant that in the proceedings before the
learned NCLT in CP (IB) No. 249 of 2018, NCLT
Ahmedabad, the learned NCLT has not notified the
matter for pronouncement, on the date when the
judgment had been declared on 27.7.2021. Learned
Advocate in support of such contention has relied
upon the cause list of the learned NCLT on that
particular date which shows that the matter was not
listed for pronouncement.
3. Learned Advocate Mr. Shah submits that by not
listing the matter for pronouncement the matter an
important right available to the petitioner i.e to
request the learned NCLT for staying of the order
concerned, which may or may not have been considered
by the learned NCLT was lost and hence he submits
that the matter be remanded back to the learned
NCLT.
4. Learned Senior Advocate Mr. Pahwa submits that
the petitioner in his petition himself admits that
he has received a copy of the order dated 27.7.2021
on 28.7.2021 when his colleague was checking up on
the website of the NCLT and therefore, as such no
prejudice has been caused to the present petitioenr
and it was always open for the petitioner to
approach the appropriate forum for challenging the
said decision. At the same time learned Senior
Advocate Mr. Pahwa would also submit that the matter
may be remanded back to the learned NCLT on a
limited ground for considering the request of the
present petitioner for staying the judgment which
request may be considered by the learned NCLT on its
own merits and whereas no new hearing or no order
requries to be passed by the learned NCLT as regards
the matter which is already heard and decided vide
judgment dated 27.7.2021, and if such an arrangement
is made learned Senior Advocate submits that he
would not have any objection.
5. In this view of the matter more particularly
since the ground of prejudice pointed out by learned
C/SCA/5042/2021 ORDER DATED: 26/10/2021
Advocate for the petitioner is only with regard to
not being able to make a request to the learned NCLT
for staying its own judgement, this Court deems to
pass the following directions.
5.1 The learned NCLT shall notify CP (IB) No. 249 of
2018 for the purpose of pronouncement on 23.08.2021
and whereas on such date it will be open for the
applicant to submit a application for staying the
judgment if he so desires which request may be
considered by the learned NCLT independently on its
own merits. It is made clear that neither the
learned NCLT is required to pass an order afresh nor
it is required to afford a hearing to any of the
parties except for considering request for staying
of the judgment concerned for the purpose of
preferring the appeal. The order of learned NCLT
upon the request of the petitioner, if any, shall be
treated as a part of the judgment and order dated
27.7.2021.
6. It is made clear that this Court has not gone
into the merits of the matter as stated herein
above. The learned NCLT shall take decision in
accordance with law on the limited issue for which
the matter is remanded back to the learned NCLT
Ahmedabad within one week from the date of receipt
of the order.
7. It is clarified that for the purpose of
compliances as per the Act the date of fresh
pronouncement i.e 23.08.2021 as declared by the NCLT
would be treated as relevant date.
8. This petition is disposed of as partly allowed."
8. In view of the above, similar order is passed
in the present proceedings without going into the
merits of the matter by issuing the following
directions, which would meet the interest of
justice :
C/SCA/5042/2021 ORDER DATED: 26/10/2021
8.1 The NCLT shall notify I.A. No.537 of
2020 & I.A. No.567 of 2020 & I.A. No.700 of 2020
& I.A. No.788 of 2020 in TP 03 of 2020 [CP(IB)
No.30 of 2018] for the purpose of providing an
opportunity to the petitioners to make further
prayers after the pronouncement of the decision,
which was already pronounced on 1st March, 2021,
so as to redress the grievances of the
petitioners that without awareness of the
petitioners, the order dated 1st March, 2021 was
pronounced by the NCLT.
8.2 It is also made clear that the order
dated 1st March, 2021 passed in the aforesaid
proceedings shall remain as it is and the NCLT is
not required to pass an order afresh nor it is
required to offer a hearing to any of the
parties, except considering the request, if any,
for stay of the order pronounced for the
interregnum period to prefer appeal by the
aggrieved party.
9. It is brought to the notice of this Court
that the learned members who have pronounced the
order on 1st March, 2021 have demitted the office.
10. In view of the aforesaid directions, the
members who are presently presiding over the
Bench of Court No.2 of the National Company Law
Tribunal, Ahmedabad Bench, shall fix the matters
C/SCA/5042/2021 ORDER DATED: 26/10/2021
on 29th October, 2021 at 10.30 a.m. for carrying
out the aforesaid directions.
10.1 It is also made clear that the learned
advocates of both the sides shall co-operate each
other and shall not seek any adjournment.
10.2 In absence of the members presiding over
the Bench of Court No.2 of NCLT on 29 th October,
2021, the members of other Bench will hear these
matters. In no circumstance the matters will be
adjourned beyond 29th October, 2021.
10.3 It is made clear that this Court has not
gone into the merits of the matter as stated
hereinabove and the NCLT shall pass further
orders in accordance with law on the limited
issue for which the aforesaid arrangement is
made.
11. With the above directions, these
petitions are disposed of. The Civil Application
(FOR DIRECTION) No.1 of 2021 is also disposed of.
12. Direct service is permitted today to all
the concerned parties.
(BHARGAV D. KARIA, J)
dolly
