Analysis of High Court of Bombay Judgement in Pushpa Shah vs. Union of India & Ors.

If the judgment has to be pronounced by any one of the two or more judges, who heard the case, it will be pronounced only after the transcript of the judgment has/have been initialled by all the judges who have heard the case.

In the present case, the two member Bench of the adjudicating authority NCLT heard the parties. Both were judicial members. The issue that the proceedings are time barred was raised by the petitioner and after arguments were concluded, the order was reserved. On 28th August, 2018, the matter was listed for pronouncement before the NCLT. Shri M. K. Shrawat, Member (Judicial) who was one of the 2 members, heard the petition. The said one member signed, delivered and pronounced the judgment/order thereby admitting the application and declaring and commencing the CIRP from 28th August, 2018. There is no dispute that till the aforesaid purported judgment/order was signed, delivered and pronounced on 28th August, 2018, the other member had neither given his concurrence with his reasoning or conclusion nor had he signed the transcript of the purported judgment/order dated 28th August, 2018. The purported judgment/order dated 28th August, 2018 shows the name of only one Member (Judicial) in the coram. We, therefore, prima facie find that this purported judgment/order is in violation of the above referred provision of section 419(3) of the Companies Act, 2013. Upon objection having raised, on 30th August, 2018, one page addendum-cum-corrigendum order was issued disclosing that the other Member (Judicial) has expressed his agreement subsequently with the purported judgment/order already delivered and pronounced on 28th August, 2018.

It is well recognized and fundamental judicial procedure that if the judgment has to be pronounced by any one of the two or more judges, who heard the case, it will be pronounced only after the transcript of the judgment has/have been initialled by all the judges who have heard the case. Thus prima facie one page corrigendum issued upon pointing out the gross illegality would not cure the non-est purported judgment/order dated 28th August, 2018. The manner in which the matter has been dealt by the adjudicating authority would shock the conscience of the Court. The High Court is required to exercise its extraordinary jurisdiction under Article 226 of the Constitution so as to prevent miscarriage of justice and/or to correct and/or to meet out justice.

Judgement link : https://bombayhighcourt.nic.in/generatenewauth.php?auth=cGF0aD0uL2RhdGEvb3JpZ2luYWwvMjAxOS8mZm5hbWU9V1AzNTIxOTA0MDMxOS5wZGYmc21mbGFnPU4mcmp1ZGRhdGU9JnVwbG9hZGR0PTAxLzA0LzIwMTkmc3Bhc3NwaHJhc2U9MjAwNDE5MjAyNDU3