Drama unfolded in court room 6D of the Kerala High Court on Thursday after a judge, sitting as part of a division bench, took exception to the out-of-turn listing of a case despite an earlier order stating that the matter was to be heard only on November 6.

Justice Johnson John, the junior judge on the bench, said that the earlier order had clearly spelt out that the case was to be listed only on November 6 and that he was unaware as to why it came up for hearing today.

“I don’t want to explain further...I don’t know why it came up today. It was posted for November 6,” Justice John said. 

The case pertained to the ongoing insolvency proceedings against Think and Learn Private Limited, which owns edu-tech firm Byju’s.

Listed before the Court was a review petition filed by Voizzit Technology (a creditor who has claimed right to the ownership of Byju’s) challenging the dismissal of a writ petition filed by it earlier seeking a probe into the insolvency proceedings.

A Bench of Justices K Natarajan and John had earlier issued notice on the the review petition filed by Voizzit during an October 27 hearing and posted the case for further consideration on November 6.

However, the matter came to be listed today, with Justice John repeatedly expressing that this was done without his knowledge. 

The Bench, however, added that they were unable to agree on whether the judgment under review should be stayed while the review petition was pending.

“We are having divergent opinions, that's why we have not stayed the appeal,” said Justice Natarajan.

“There is a difference of opinion regarding the question of stay. So, in such circumstances, the matter has to be placed before the Registry, which will place it before the Chief Justice,” added Justice John. 

This prompted Vozzit’s counsel, advocate PC Sasidharan, to raise an objection. Sasidharan claimed that today’s split opinion and reference to the Chief Justice amounted to changing the order passed by the High Court in the last hearing of the matter. 

It was his argument that the judges were unanimous on October 27 as regards the stay order.

“Separate order must be there, My Lord, independently, and we should be given copy and it should be uploaded, but it is not seen as uploaded. If there is a difference of opinion, we expect it then and there before the Bench, not thereafter - or it will amount to recall or review. Whatever is pronounced in open court, it cannot be (changed)… No party has filed to recall or review… An order passed in open court cannot be recalled or reviewed unless there is a petition on that behalf,” he said. 

Justice John, however, raised a more striking issue. He expressed that he was in the dark about why the matter was listed today at all. Notably, according to case details available on the High Court’s website, the matter was listed next on November 6, not today. 

“I don’t want to explain further...I don’t know why it came up today. It was posted for November 6. Normal procedure is to direct the registry to place the matter before the Chief Justice,” Justice John said. 

“Our objection in that regard (that today’s order amounts to an unpermitted change in the earlier order) may be noted to the effect,” urged advocate Sashidharan.

“Nothing will be noted,” replied Justice Natarajan.

"Without my knowledge, it is posted today, the correct procedure is to direct registry,” Justice John maintained. 

“No, the correct procedure is, then and there, the difference of opinion must be in open court through an independent order...a judgment cannot be corrected in chamber,” said Sasidharan. 

Representing a respondent (representatives of Ernst and Young/ EY), Senior Advocate Santosh Mathew opposed Sasidharan's argument, stating,

“There are legal issues involved, only after listing it specifically can any order be passed.”

“You file a review if you are aggrieved. Not in chambers. That is bad and this will create a bad precedent,” advocate Sasidharan replied. 

“When different opinions come, we have to refer the matter in open court for sending it to the Chief Justice,” Justice Natarajan went on to remark. 

While Sasidharan reiterated his claim that the judges were unanimous on October 27, Justice John maintained that he was never in favour of stay that day. He said that the matter had been simply kept for further hearing on November 6 after issuance of notice.

“Our difference of opinion is only on the question of stay and that was expressed then and there itself,” asserted Justice John. 

Advocate Sashidharan, however, disagreed with Justice John’s recollection of the last hearing. 

“There is no divergent opinion when the order was in open court. Then the Court can’t diverge,” he said.

However, Justice John stood his ground.

“When I expressed my dissent (on October 27), I said that the matter requires to be held in a peaceful manner and that there will be no order touching the merits of the matter,” Justice John said. 

“Then and there (in open court, there was no disagreement), not subsequently, not in chambers,” replied Sashidharan. 

At this juncture, Justice Natarajan intervened to clarify that the Court will not be hearing detailed arguments in the matter. 

“Today’s posting is only for referring to the third Bench, not for hearing arguments,” he said. 

The Bench eventually proceeded to order that the matter be placed before the Chief Justice so that a third judge may give his view on whether the judgment under review needs to be stayed. 

“There is a difference of opinion in respect of staying the impugned judgment of this Court in the appeal. It is a concurrent opinion for admitting the review, but there is a divergent opinion in respect of staying the appeal. Hence, the matter should be heard by a third Bench. Therefore, the registry is directed to place the matter before the Chief Justice for reference of the matter to a third bench,” stated the order dictated by Justice Natarajan on behalf of the Bench. 

The review plea by Vozzit and its sister company seeks the reconsideration of a June 12 High Court judgment dismissing its appeal alleging irregularities in insolvency proceedings concerning Byju's.

The June 12 Division Bench judgment upheld a single-judge’s June 3 refusal to direct the Central Bureau of Investigation (CBI) and other agencies to investigate the insolvency proceedings, particularly the conduct of the insolvency professionals and GLAS Trust Company LLC.

The latest petition alleges that GLAS Trust Company LLC, which claims to represent lenders of a $1.2-billion loan to Byju’s US subsidiary, relied on a fabricated direction letter dated July 25, 2024 to secure a dominant voting share in the Committee of Creditors.

Vozzit has argued that the High Court, in its earlier ruling, overlooked material evidence and subsequent developments, including an Insolvency and Bankruptcy Board of India (IBBI) disciplinary order against the former interim resolution professional.

The present petition seeks review and recall of the June judgment and restoration of the appeal for fresh consideration. They have also sought a stay on the insolvency resolution proceedings against Byju’s. 

Among other allegations, Voizzit also claims that EY, appointed as the insolvency professional entity (IPE) in the CIRP, facilitated GLAS Trust’s admission to the Committee of Creditors without proper verification and while concealing a conflict of interest.

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