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Challenge to IBC Code, NCLT appointments to be heard by Justice Rohinton Nariman Bench
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Challenge to IBC Code, NCLT appointments to be heard by Justice Rohinton Nariman Bench

Shruti Mahajan

A Bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud passed an order to that effect yesterday.

The petition was earlier listed before a Bench comprising Justice Rohinton Nariman, before it was sent to CJI Bench.

Subsequently, it was listed and heard by the Chief Justice’s Bench on April 9 when the Court had issued notice in the matter.

When the matter came up for hearing yesterday, CJI Dipak Misra wanted to send the matter back to Justice Nariman’s court. Senior Counsel Mukul Rohatgi, appearing for the petitioner, told that the matter was before Justice Rohinton Nariman who, in fact, sent the matter to the CJI’s court.

Regardless of the prior juggling of the case from one court to another, the Court sent the matter back to Justice Nariman’s court.

“Let this batch of matters be listed on Wednesday, the 09th May 2018 before a Bench presided over by Hon’ble Mr. Justice R.F. Nariman for final disposal and consideration of prayer of stay”, the order states.

The petitioners have challenged Sections 3(12), 5(7), 6, 7, 12, 29, 62, 214(f), 231 and 238 of Insolvency and Bankruptcy Code and Sections 409(2) and 419 of the Companies Act, 2013. Further, the petitioners have also assailed notifications dated August 12, 2016 and September 28, 2017 issued by the NCLT, Delhi.

Importantly, they have also challenged appointments of judicial and technical members of National Company Law Tribunal (NCLT) and technical members of National Company Law Appellate Tribunal (NCLAT) made before January 2018.

This is based on the judgment rendered by the Supreme Court in Madras Bar Association v. Union of India [(2015) 8 SCC 583].

Section 412 of the Companies Act was struck down in the said judgment. The same was only amended in 2018 to bring it in tune with the directions of the judgment. It is, therefore, the petitioners’ contention that the appointments made to NCLT and NCLAT (technical members) prior to 2018 are unconstitutional and void ab intio and non –est.

Read the order passed yesterday.

IBC-Code-Order.pdf
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