Are the 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 invalid?.The Supreme Court today took note of this issue after it was raised in a case pertaining to the challenge to the provisions of Insolvency and Bankruptcy Code (IBC)..Appearing before a Bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud, Advocates Masoom Shah, Vishwas Shah and Udit Gupta, stated that all appointments made after the Supreme Court judgment of 2015 in Madras Bar Association case are invalid..Justice Chandrachud then asked the counsel whether de facto doctrine would not apply..“Absolutely Your Lordships. But not in this case since no judgment has been passed in our case”, responded Masoom Shah..The Court asked Attorney General to respond to the issue raised whereupon Attorney General told the Court that he has not received a copy of the petition..The petitioners told the Court that they will serve a copy of the petition on Attorney General..The Bench then adjourned the matter for May 3..In 2015, the Supreme Court in Madras Bar Association v. Union of India [(2015) 8 SCC 583] had struck down Section 412 of the Companies Act. 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 all appointments made to NCLT and NCLAT (technical members) prior to 2018 are unconstitutional and void ab intio and non – est.
Are the 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 invalid?.The Supreme Court today took note of this issue after it was raised in a case pertaining to the challenge to the provisions of Insolvency and Bankruptcy Code (IBC)..Appearing before a Bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud, Advocates Masoom Shah, Vishwas Shah and Udit Gupta, stated that all appointments made after the Supreme Court judgment of 2015 in Madras Bar Association case are invalid..Justice Chandrachud then asked the counsel whether de facto doctrine would not apply..“Absolutely Your Lordships. But not in this case since no judgment has been passed in our case”, responded Masoom Shah..The Court asked Attorney General to respond to the issue raised whereupon Attorney General told the Court that he has not received a copy of the petition..The petitioners told the Court that they will serve a copy of the petition on Attorney General..The Bench then adjourned the matter for May 3..In 2015, the Supreme Court in Madras Bar Association v. Union of India [(2015) 8 SCC 583] had struck down Section 412 of the Companies Act. 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 all appointments made to NCLT and NCLAT (technical members) prior to 2018 are unconstitutional and void ab intio and non – est.