Somabhai Damodardas Patel vs Lincoln Parenteral Limited
2022 Latest Caselaw 65 Guj

     C/SCA/15485/2021                                   ORDER DATED: 04/01/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 15485 of 2021
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                        SOMABHAI DAMODARDAS PATEL
                                   Versus
                         LINCOLN PARENTERAL LIMITED
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Appearance:
MR ARJUN R SHETH(7589) for the Petitioner(s) No. 1,2,3,4,5,6
MR SN SOPARKAR, SENIOR ADVOCATE WITH MS DHARMISHTA
RAVAL(707) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,3
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                  Date : 04/01/2022
                   ORAL ORDER

This petition, has been filed by the petitioners praying for quashing and setting aside the impugned order dated 14.9.2021 (learnt on 25.9.2021) passed by the respondent no.3 in CP (CAA) 74 of 2020 in CA (CAA) 49 of 2020 and Company Application No.20 (AHM) of 2021.

2. Central to the issue is, the order dated 14.9.2021 passed by the National Company Law Tribunal (hereinafter referred to as 'the Tribunal') approving the scheme of merger/amalgamation. According to the petitioners, the cause list dated 14.9.2021, published on the website of the respondent no.3, did not contain the pronouncement of order in CP (CAA) 74 of 2020 in CA (CAA) 49 of 2020 and Company Application No.20 (AHM) of 2021. Therefore, the order has been passed behind the back of the petitioners; in violation of the National Company Law Tribunal Rules, 2016 (hereinafter referred to as the 'Rules of 2016'), so also in violation of the statutory and fundamental rights of the petitioners. This Court on 18.10.2021, after hearing the learned advocate for petitioners, issued the notice and ad-interim relief was granted staying the operation and implementation of the order dated 14.9.2021. The said order reads thus:-

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"Heard Mr. Arjun Sheth, learned Advocate appearing for the petitioner.

2. It is submitted that the petitioner is aggrieved by the order delivered on 14.09.2021 by the National Company Law Tribunal (hereinafter referred to as "the Tribunal"). It is submitted that the order sheet clearly reflects that neither the applicant, nor the IRP, nor the respondent are present when the order was delivered. It is submitted that the publication of the cause-list, is governed by the provisions of the National Company Law Tribunal Rules, 2016 (hereinafter referred to as "the Rules of 2016") . Rule 89 contained in Part IX, titled Cause-List, provides for preparation and publication of daily cause list. Sub-rule (1) of Rule 89 envisages that the Registry shall prepare and publish on the notice board of the Registry before the closing of 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 in the order of priority unless otherwise ordered by the concerned Bench. It is further submitted that as required under Rule 89, the cause-list even for the pronouncement of the order, is to be prepared in advance. So far as the present case is concerned, the cause-list for 13.09.2021 was prepared on 10.09.2021, which is signed by the Joint Registrar, NCLT on 10.09.2021. The CP (CAA) 74 of 2020 was listed for the purpose of clarification on 13.09.2021. On 13.09.2021, the application was listed and order was reserved. It is further submitted that the cause-list of 14.09.2021 was prepared on 13.09.2021, which is signed by the Joint Registrar, NCLT containing 134 matters and the matter at serial no. 134 was under the caption of pronouncement of order. However, CP (CAA) 74 of 2021 was not appearing in the list. It is submitted that CP (CAA) 74 of 2021 was pushed in, on 14.09.2021 itself, as is apparent from the signature put in by the Joint Registrar. It is submitted that such preparation of the cause-list, would not be in conformity with the requirement of Rule 89 of the Rules of 2016 and would be nullity. It is also submitted that the petitioner was not aware about the pronouncement of the order and it was only when the respondent No. 7 addressed an e-mail dated 25.09.2021, that the petitioner came to know about the pronouncement of the order dated 14.09.2021.

3. Reliance is placed on the judgment of the Bombay High Court in the case of Kamal K. Singh vs. Union of India reported in (2020) 154 CLA 213 (Bombay). It is submitted that the Hon'ble Bombay High Court while dealing with the Rule 89 which provides for preparation and publication of the daily cause-list, while not accepting the arguments raised by the respondent as regards the non-maintainability of writ petition, held and observed that compliance with the requirement of pronouncement of judgment and order by the Tribunal, cannot be overlooked. Such defect cannot be condoned. The defect in not following the procedure, vitiates the proceedings in their entirety. It is submitted that the Bombay High Court while allowing the writ petition, quashed and set aside the order which was passed in violation of the Rules of 1989 treating it as a nullity. It has also been observed that once the order is nullity, the same cannot be allowed to stand. 4. Having regard to the submissions made, issue notice to the respondent returnable on 28.10.2021. Ad-interim relief in terms of para. 28(b) is granted. Direct service is permitted."

The respondent no.2, has resisted the grant of the ad-interim relief. It is aggrieved by the stay of the operation and

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implementation of the order dated 14.9.2021 inasmuch as, according to it, the pronouncement of the order on 14.9.2021 by the Tribunal was in accordance with the usual practice and was an exercise of its inherent powers under the Rules of 2016.

3. Mr. S.N. Soparkar, learned Senior Advocate with Ms. Dharmishta Raval, learned advocate appearing for the respondent no.2, submitted that clause VIII of the order dated 14.9.2021, has directed the transferor company to cause a certified copy to be delivered to the Registrar of Companies (hereinafter referred to as the 'RoC') for registration within 30 days from the date of the receipt of the order and on certified copy being so delivered, the transferor company shall be dissolved and the RoC shall place all documents relating to the transferor company and registered with him on the file kept by him in relation to the transferor company and the files relating to the said companies, shall be consolidated accordingly. It is therefore, submitted that by virtue of the directions contained in the order dated 14.9.2021, the scheme of amalgamation has been implemented and once the scheme is implemented, the reversal is not possible as the transferor company is dissolved and no longer in existence and all the assets and liabilities are transferred in the name of the transferee company.

3.1 It is next submitted that immediately after the pronouncement of the order, it was uploaded on the website of the Tribunal on 15.9.2021 and thereafter, various steps have been taken, namely,

(i) intimation to the stock exchange; (ii) newspaper press release regarding the approval of the scheme of amalgamation; (iii) uploading of form INC-28 for sanctioning the scheme of amalgamation by the RoC; (iv) receipt of approval of form INC-28 as filed by the respondent no.1 from RoC; (v) copy of the master data of respondent no.1 indicating the status of the Lincoln Parenteral Limited as amalgamated and hence, no longer in existence etc. It is submitted that intimation of the board meeting to be held on

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5.10.2021, for considering allotment of the shares on approval of the scheme of amalgamation, was also given to the Bombay Stock Exchange and National Stock Exchange on 30.9.2021. On 5.10.2021, board meeting of the respondent no.2 company was held for further implementation of the scheme and allotment of the shares. Therefore, the respondent no.2 has already allotted the shares as per the terms and conditions of the scheme approved by the Tribunal.

3.2 It is submitted that all these aspects have not been disclosed by the petitioners for the reasons best known to them. It is submitted that the petitioners were very much aware of the fact that the RoC has approved form INC-28 and the status of the respondent no.2 on the website of the Ministry of Corporate Affairs has changed to "amalgamated". Therefore, before filing of the petition, the scheme has been implemented and has become effective, as a result whereof, the respondent no.1 company has ceased to be in existence. By staying the operation and implementation of the order dated 14.9.2021, the dead company has been revived.

3.3 It is further submitted that as per the provisions of Section 421 of the Companies Act, 2013, if any person is aggrieved by an order of the Tribunal, it can prefer an appeal before the National Company Law Appellate Tribunal (hereinafter referred to as the 'Appellate Tribunal') and therefore, in view of the efficacious remedy available to the petitioners, the petition requires to be dismissed.

3.4 It is also submitted that the contention raised by the petitioners that the pronouncement of the order dated 14.9.2021 has taken place behind the back of the petitioners and that the pronouncement of the order is contrary to and violative of the rules, is misconceived for, additional cause list was prepared on 14.9.2021 and at sr. no. 136, CP (CAA) 74 of 2020 in CA (CAA) 49 of 2020 and

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Company Application No.20 (AHM) of 2021 was listed. However, the petitioners have not annexed additional cause list prepared on 14.9.2021 of Court No.1. It is also submitted that the order was pronounced in the open Court and as per the usual practice prevailing at the Tribunal, the serial number and CP number were called out by the Court-master. Further, the order pronounced on 14.9.2021, was uploaded on the website of the Tribunal on 15.9.2021 and the order was very much available in public domain and therefore, the stand of the petitioners that the petitioners came to know about the order on 25.9.2021, is fallacious and does not deserve to be accepted.

3.5 It is submitted that in support of the grievance, the petitioners have placed reliance on the orders, both dated 18.3.2021 passed in Special Civil Application Nos.5042 of 2021 and 5090 of 2021. It is submitted that both the writ petitions have been finally disposed of by this Court vide order dated 26.10.2021. This Court has directed the Tribunal to notify the application for the purpose of providing an opportunity to the petitioners therein to make further prayer of stay after the pronouncement of the decision already pronounced so as to redress the grievance of the petitioners about the petitioners being not aware. It is submitted that prejudice which can be said to have been caused to the petitioners, was limited to their right of seeking stay after the pronouncement of the order which has been protected by this Court while remitting the matter back with a direction to the Tribunal to list the matter for the purpose of pronouncement. Liberty has been reserved in favour of the petitioners therein, seeking stay, in order to enable the party to file an appeal before the Appellate Tribunal. It is therefore, submitted that the right of the petitioners of seeking stay against the pronouncement of the order can be taken care of by remitting the matter back and till that time, stay granted by this Court be continued.

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3.6 It is submitted that if at all there is any violation, it is at the stage of pronouncement and therefore, the matter be remitted back curing the infraction from that stage. It is also submitted that the contention of the petitioners that the larger issue is involved, is also misplaced considering the fact the present writ petition is not a public interest litigation. It is also submitted that the matter does not require examination from that angle, however, the order passed by the Tribunal, is appealable. It is very much open to the petitioners to carry the matter before the Appellate Tribunal by way of an appeal and by further appeal before the Apex Court. It is submitted that what is sought to be achieved is not so unique that the High Court has been requested to entertain the petition.

3.7 While dealing with the judgment in the case of Kamal K. Singh (supra), it is submitted that in the case before the Bombay High Court, the bench comprising two members, heard the matter, order was pronounced without even notifying, as one member got elevated to the Appellate Tribunal. It is submitted that focal point of the issue was that there was no pronouncement at all. It is submitted that as observed in paragraph 47, the case was not where a complaint or grievance was made about the manner of pronouncement, but the complaint was that there was no pronouncement at all. It is submitted that so is not the position in the present case. The case was listed for pronouncement on 14.9.2021 and the order was uploaded on the website on the very next day, i.e. 15.9.2021 and hence, the judgment of the Bombay High Court will not be of any help to the petitioners. It is submitted that it is true that the things are not happy, however, no mala fides has been alleged. It is submitted that nobody has gained out of it. The facts are not earth shattering so as to nullify everything. Once the petitioners are put back to their original place, the grievance would stand redressed. While placing reliance on the judgment in the case of Shaji Purushothoman vs. Union of India rendered in W.P.

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No.1926 of 2020 and WMP.No.2253 of 2020, it is submitted that the facts of the said case are in close proximity with the facts of the present case. It is therefore, submitted that the grievance being limited the matter should go back, protecting the interest of the petitioners by extending the ad-interim relief granted by this Court till the matter is listed before the Tribunal for the purpose of making the request for stay.

4. On the other hand, Mr Arjun R. Sheth, learned advocate appearing for the petitioners submitted that the issue involved is a larger issue inasmuch as, day in and day out, the orders are being passed by the Tribunal without following the procedure under Rule 89 of Part IX titled "cause list" in the Rules of 2016, and therefore, it requires determination.

4.1 It is further submitted that the petitioners, are aggrieved by the order dated 14.9.2021 which was pronounced behind their back. It is submitted that the cause lists are prepared in advance and therefore, cause list for 13.9.2021 was prepared on 10.9.2021 duly signed by the Joint Registrar of the Tribunal on the very same day; the CP (CAA) 74 of 2020 in CA (CAA) 49 of 2020 and Company Application No.20 (AHM) of 2021 was listed for the purpose of clarification on 13.9.2021 when, the order was reserved. Further, as per the practice, the cause list of 14.9.2021 was to be prepared in advance and accordingly, the same was prepared, duly signed by the Joint Registrar of the Tribunal containing 134 matters. Only one matter at serial No.134 was listed under the caption of "Pronouncement of Order" but, CP (CAA) 74 of 2020 was not appearing in the list. CP (CAA) 74 of 2020, was pushed in on 14.9.2021 itself, as is clear from the signature put by the Joint Registrar of the Tribunal. It is therefore, submitted that the preparation of the cause list on 14.9.2021 and pronouncement of the order, was not in consonance with the requirement of Rule 89 of the Rules of 2016 and would be nullity.

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4.2 It is submitted that Rule 89 contained in Part IX titled "cause list" provides for preparation and publication of daily cause list. Sub- rule (1) of Rule 89 of the Rules of 2016 envisages that the registry shall prepare and publish on the notice board before the closing of 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 the concerned bench. Therefore, as required under Rule 89, the cause list even for the pronouncement of the order, is to be prepared in advance. It is submitted that the pronouncement of the order on 14.9.2021, cannot be said to be in conformity with Rule 89 of the Rules of 2016 and therefore, the order would be non est and nullity in the eye of law.

4.3 Heavy reliance is placed on the judgment of the Bombay High Court in the case of Kamal K. Singh vs. Union of India reported in (2020) 154 CLA 213 (Bombay). It is submitted that the Bombay High Court, while dealing with similar situation and Rule 89 of the Rules of 2016, held and observed that compliance with the requirement of pronouncement of judgment and order by the Tribunal, cannot be overlooked. Such defect cannot be condoned. The defect in not following the procedure, vitiates the proceedings in their entirety. It is therefore, submitted that the Bombay High Court while allowing the writ petition, quashed and set aside the order passed by the Tribunal in violation of Rules of 2016 treating it as nullity. It is submitted that the present case, is squarely covered by the judgment of the Hon'ble Bombay High Court. It is also submitted that the petitioners lost the opportunity to seek stay at the time of pronouncement and resultantly, lost the opportunity to immediately move the Appellate Tribunal for appeal and seeking stay.

4.4 Adverting to the contention of the respondent no.2 that effective steps have been taken for implementing the scheme, it is

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submitted that it is fallacious and against the record. It is submitted that the respondent no.2, though have informed the entire world, did not inform the petitioners. Moreover, on 4.9.2021, an e-mail had been addressed by the respondent no.2 to the petitioners about the Annual General Meeting to be held on 27.9.2021. It is submitted that on 25.9.2021, the order dated 14.9.2021 was within the knowledge of the respondent no.2, there was no reason available on the earth to have scheduled the Annual General Meeting on 27.9.2021. It is also submitted that reply, though disclosed everything, does not disclose that when the respondent no.2 learnt of the uploading of the new board on the website of the Tribunal on 14.9.2021.

4.5 It is submitted that so far as the newspaper clippings are concerned, they have been placed on record by enlarging them, however, the actual press release would be in a miniature form. Therefore, it would be difficult for anyone to notice such publication in the newspaper. It is submitted that to substantiate its amalgamated status, the respondent no.2 seeks to place reliance on master data of the respondent no.1 company as of 23.10.2021. It is quite clear that amalgamation has taken place after the order passed by this Court on 18.10.2021.Therefore, it is not believable that the scheme has been effectively implemented. Further, as per the direction contained in clause XIII, the company is directed to lodge a copy of the order of the approved scheme, duly authenticated by the Registrar of the Tribunal, with the concerned Superintendent of Stamps, for adjudication of stamp duty, if any, within 60 days of the date of the order. Till date, the said step, has not been complied with and therefore, it cannot be said that the scheme has attained finality.

4.6 It is also submitted that the respondent no.2, has given the chronology of steps taken for implementation of the scheme of amalgamation, however, except mentioning the dates, supporting

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documents have not been produced on record. So far as, the process of consolidation of the accounts has already been commenced is concerned, neither the date nor the documents have been produced. Similarly, the details of the transfer of the employees; the respondent no.2 having applied for registration with the drug authorities, steps taken are bereft of any dates and details and therefore, the contention of the respondent no.2 that the scheme has been effectively implemented, cannot be accepted.

4.6 While placing reliance on the WhatsApp chat (pages 342 to

348), so also the order (pages 349 to 361), it is submitted that it is a larger issue to be dealt with considering the fact that unscrupulous litigants will take advantage of the pronouncement. While dealing with the preliminary objection as regards the availability of the alternative remedy, it is submitted that the Tribunal has on the face of it committed failure of justice and now to ask the petitioners to travel to Delhi to file an appeal, cannot be said to be an efficacious remedy.

5. Heard the learned advocates appearing for the respective parties and considered the documents available on the record.

6. In the present case, the issue revolves around the pronouncement of the order dated 14.9.2021 and the right of the petitioners to ask for stay of the order.

7. Brief facts are that, CP (CAA) 74 of 2020 in CA (CAA) 49 of 2020 and Company Application No.20 (AHM) of 2021 was filed by the respondent no.1 before the Tribunal seeking to merge with the respondent no.2 pursuant to the scheme of merger/Amalgamation under the provisions of the Companies Act, 2013. The hearing of the CP (CAA) 74 of 2020 in CA (CAA) 49 of 2020 and Company Application No.20 (AHM) of 2021 was concluded on 6.9.2021 and the matter was reserved for order. On 13.9.2021, the matter was

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listed for clarification and after seeking clarification, the Tribunal reserved the matter for orders. The grievance of the petitioners is that in the cause list of 14.9.2021, prepared on 13.9.2021, it did not contain the item for pronouncement of CP (CAA) 74 of 2020 in CA (CAA) 49 of 2020 and Company Application No.20 (AHM) of 2021 and the same was pushed on 14.9.2021 itself and therefore, the petitioners were not aware about the listing of the matter for pronouncement of order on 14.9.2021 and the petitioners learnt only on 25.9.2021 and resultantly, the right of the petitioners have been seriously affected of seeking stay at the time of pronouncement, in order to enable them to file an appeal before the Appellate Tribunal. Clearly, the infraction if at all, is at the stage of notifying the matter/application for pronouncement and not otherwise. Mr. Soparkar, learned Senior Counsel is right in contending that if there is any infraction, the matter be remitted back so as to cure the infraction from that stage and that everything cannot be nullified for, there is no grievance of any infraction of the proceedings prior to the pronouncement of the order.

8. Further, at the time of admission hearing of the captioned writ petition, reliance was placed on two orders passed by this Court, both dated 18.3.2021 in Special Civil Application Nos.5042 of 2021 and 5090 of 2021. As aforesaid, this Court has granted protection. Notably, the writ petitions have been disposed of by this Court vide oral order dated 26.10.2021. This Court, without going into the merits, has passed identical order, along the lines of the order dated 11.8.2021 passed in Special Civil Application No.11031 of 2021. This Court, directed the Tribunal to notify the application for the purpose of providing an opportunity to the petitioners therein to make prayer after the pronouncement of the decision which was already pronounced so as to redress the grievance of the petitioners that they were not aware about the order. This Court, made it clear that the proceedings in connection with the order passed, shall remain

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as it is and the Tribunal shall neither pass order afresh nor 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 an appeal by the aggrieved party.

9. In support of the grievance, strong reliance is placed on the judgment in the case of Kamal K. Singh (supra). The facts in the case before the High Court of Bombay can be distinguished. In the said case, the grievance was that the order allegedly was passed on 22.10.2019, however, it was not listed for pronouncement before the concerned bench. It was specifically averred that the bench had reserved the order and that the petitioner was diligently tracking the daily cause-list. It was also the case of the petitioner therein that the Judicial Member was expected to demit the office as a Member of the Tribunal as he was appointed as a Member of the Appellate Tribunal vide notification dated 15.10.2019. That the insolvency petition was not listed for pronouncement until the Judicial Member demitted the office and took charge on 23.10.2019. It was only on receipt of the order, the petitioner sought to verify from the website of the Tribunal as to whether there was any board or listing of the matter for pronouncement. In the additional cause- list dated 22.10.2019, it featured only one item and the additional cause-list, it was created on 5.11.2019 at 5.38 p.m. and uploaded thereafter on the website of the Tribunal. It was the grievance of the petitioner therein that on 22.10.2019, the bench did not conduct any adjudicatory business. With this background, it was a specific case of the petitioner that the order was neither pronounced under the Rules nor was informed to the petitioner and that the petitioner was made aware only on 8.11.2019 when the respondent therein, sought to take charge of the respondent no.6 company. The grievance of the petitioner was essentially that there was a breach of Rule 150 of the Rules of 2016, i.e. pronouncement of order. It was also the case of the petitioner that neither there was a date of

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pronouncement nor board was prepared of the proceedings and particularly the pronouncement of order in open Court.

10. The focal point of the adjudication before the High Court of Bombay was breach of Rule 150 of the Rules of 2016 inasmuch as, there was no pronouncement as required. In paragraph 47, the Court has recorded that the case is not where there is any complaint or grievance about manner of pronouncement, the complaint was far more serious, i.e. that there was no pronouncement at all. The grievance was also that the parties were never intimated in advance about the pronouncement of the order and the petitioner had no knowledge about the pronouncement. The Court also summoned the original record and it found that 11 th November was the date on which the order was made known or indicated to the petitioner therein and that the same cannot be construed to be an evidence of its prior pronouncement.

11. At this stage, the judgment of the High Court of Judicature of Madras relied upon by the respondent in the case of Shaji Purushothoman (supra), is required to be referred to. In the said case, MA/780/2019 and MA/1250/2019 of CP/280/IB/2018 which were heard along with other matters were not shown in the cause- list. However, common order was passed allowing the MA/780/2019 and dismissing the MA/1250/2019. The grievance of the petitioner was, inter alia, that Rule 89 of the Rules of 2016 which speaks about the preparation and publication of the daily cause list, have not been complied with and in absence of any prior publication of the pronouncement of the orders, the petitioner has been put to grave prejudice and irreparable loss. It was also the case that in terms of Rule 150 of the Rules of 2016, the Tribunal, after hearing the parties, shall make and pronounce an order either at or, as soon as thereafter as may be practicable but not later than thirty days from the final hearing. The petitioner therein, was aggrieved that the cause-list as to the pronouncement of the orders, have not been

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pre-published or uploaded in the website coupled with the fact that in the additional cause-list, there was no indication as to the pronouncement of the orders and the orders having came to be pronounced after two months, it deserves to be quashed and set aside with a further direction for listing and hearing of the matter afresh. Reference has been made to the judgment of the High Court of Bombay in the case of Kamal K. Singh (supra). Considering various judgments of the Apex Court on the aspect of effect of the Rules being mandatory or directory, it held that it can be considered only to be directory. The High Court of Judicature at Madras was of the opinion that the judgment of the Division Bench of the High Court of Bombay has not considered as to the directory/mandatory nature of the statutory Rules. While not entertaining the writ petition, it directed the petitioner therein to work out a remedy by making a challenge to the competent forum in accordance with law.

12. In the present case, the board of 14.9.2021 was prepared on 13.9.2021. By preparing the additional board on 14.9.2021, the CP (CAA) 74 of 2020 in CA (CAA) 49 of 2020 and Company Application No.20 (AHM) of 2021 was listed at Sr. No.136 for Pronouncement of the Order, and it is alleged that the petitioners were not aware; however, so was not the case before the High Court of Bombay. In the present case, the matter was very much listed, may be subsequently, but on 14.9.2021, and the pronouncement has taken place and undisputedly, on the very next date, i.e. on 15.9.2021, the order was uploaded on the website of the Tribunal. The grievance of the petitioners is that they had learnt only on 25.9.2021. In the facts of the present case, if one is to consider the prejudice, the right of the petitioners is affected only to a limited extent of requesting stay of the operation and implementation of the order dated 14.9.2021 so as to enable the petitioners to approach the Appellate Tribunal within the period of limitation.

13. Though it is the case of the petitioners that there is a serious

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infraction, on the part of the Tribunal in not following the procedure under Rule 89 of Part-IX, essentially, the grievance of the petitioners is that the petitioners have lost the opportunity to seek stay at the time of pronouncement, so also opportunity to immediately move for appeal and seek stay. At the cost of repetition, it is required to be noted that the order was passed on 14.9.2021 and the petitioners learnt it on 25.9.2021 and the present writ petition has been filed on 6.10.2021. It is not that neither the order was listed for pronouncement nor was uploaded on the website of the Tribunal. Had it been the case of non-listing of the matter for pronouncement and not have been uploaded on the website of the Tribunal, the grievance of the petitioners would have been justified. Perceptibly, the listing of CP (CAA) 74 of 2020 in CA (CAA) 49 of 2020 and Company Application No.20 (AHM) of 2021 for the pronouncement of order was very much there and the order was pronounced on 14.9.2021 and was thereafter, uploaded on the website of the Tribunal on 15.9.2021 and was very much in the public domain. The infraction, if at all, was at the stage of listing of the matter for the purpose of pronouncement. With a view to seeing that the right of the petitioners is not prejudiced, this Court is of the opinion that the ends of justice would meet if the infraction is cured by remitting the matter back to the Tribunal.

14. Accordingly, keeping the issue open about the alleged non- adherence of Rule 89 of the Rules of 2016, this Court relegates the petitioners to the Tribunal with a direction to the Tribunal to notify the CP (CAA) 74 of 2020 in CA (CAA) 49 of 2020 and Company Application No.20 (AHM) of 2021, for the purpose of providing an opportunity to the petitioners to request the Tribunal for stay of the operation, implementation and execution of the order, so as to enable the petitioners to approach the Appellate Tribunal. So far as the order dated 14.9.2021 is concerned, it shall remain and the matter be listed only for the purpose as aforesaid for seeking stay

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by the petitioners.

15. The concern has been raised by the learned counsel appearing for the respondent no.2 that in the event the learned Member, who had pronounced the order, if have demitted the office, the learned Members, who are presiding over the Bench, shall hear the matter for the purpose of carrying out the aforesaid direction. It is clarified that the Members, who are presently presiding the bench, shall hear the request of the petitioners, consider it only for the limited purpose of stay.

16. The Tribunal is directed to list the matter on 12.1.2022. Once the CP (CAA) 74 of 2020 in CA (CAA) 49 of 2020 and Company Application No.20 (AHM) of 2021 is notified, it will be open to the petitioners to make the request for the stay of operation, implementation and execution of the order. Till the CP (CAA) 74 of 2020 in CA (CAA) 49 of 2020 and Company Application No.20 (AHM) of 2021 is notified, the ad-interim relief granted by this Court vide order dated 18.10.2021, shall continue. While reiterating, it is also clarified that the matter will be notified only for the purpose of seeking stay and the order dated 14.9.2021 shall remain as it is.

17. Needless to clarify that this Court has not gone into the merits of the matter and the Tribunal shall pass further orders independently on its own merits after considering the request of the petitioners for stay of the order dated 14.9.2021.

18. With the aforesaid direction, the petition is disposed of. No order as to costs.

(SANGEETA K. VISHEN,J) BINOY B PILLAI