HC Delhi (03.11.1955) in Abba Consultants Pvt. Ltd. Vs. Insolvency and Bankruptcy Board of India & Ors. [W.P. (C) 8856/2020 & CM APPL. 28479/2020 (Neutral Citation No. 2023:DHC:8021)] held that;
Under Article 226 of the Constitution of India, this Court cannot substitute its own conclusion to the one arrived at by experts until and unless there is gross miscarriage of justice which strikes at the root of the case.
one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’.
I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the European Economic Community;”
“By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”
Excerpts of the Order;
# 1. The Petitioner has approached this Court seeking a writ of mandamus directing the Respondent No.1 herein (hereinafter referred to as ‘the Board’) to take action against Respondent No.3 (now Respondent No.2) for misconduct in his performance as an Insolvency Resolution Professional in the matter of M/s Sandhya Prakash Limited (hereinafter referred to as the Corporate Debtor). The Petitioner has also prayed for an appropriate writ/order/direction restraining Respondent No.3 (now Respondent No.2) from functioning as a Liquidator of the Corporate Debtor during the pendency of this Writ Petition.
# 2. It is pertinent to mention here that though initially Union of India was arrayed as Respondent No.2 and the Resolution Professional, against whom the present proceedings have been initiated, was arrayed as Respondent No.3, later on Union of India was dropped from the array of parties and the Resolution Professional has now been arrayed as Respondent No.2.
# 3. The facts, in brief, leading to the present Writ Petition are as under:
a. It is stated that the National Company Law Tribunal (hereinafter referred to as ‘the NCLT’) at Ahmadabad initiated Corporate Insolvency Resolution Process (hereinafter referred to as ‘the CIRP’) against the Corporate Debtor.
b. It is stated that right from the beginning Respondent No.2, who had been appointed as the Insolvency Resolution Professional had not been performing its duty diligently and in accordance with the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as ‘the IBC’).
c. It is stated that as mandated by Regulations 6(1) and (2) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (hereinafter referred to as ‘the CIRP Regulations’), the Respondent No.2 failed to publish the public announcement in two widely circulated newspapers within three days of his appointment. It is stated that the Respondent No.2 was appointed as an Interim Resolution Professional on 14.09.2017 and the public announcement was published only on 19.09.2017 in an English online newspaper called Free Press Journal and on 20.09.2017 in a Hindi evening newspaper called Yash Bharat, which both have very less circulation in the concerned area.
d. It is stated that the Petitioner herein, who was the Operational Creditor of the Corporate Debtor, filed its claim on 27.09.2017 before the Respondent No.2. It is stated that the Respondent No.2, in contravention of the provisions of the IBC uploaded the incomplete Information Memorandum (IM) of the Corporate Debtor on its website thereby making it a public document.
e. It is stated that a complaint was filed by the Petitioner herein against Respondent No.2 with the Respondent No.1/Board on 18.03.2019 highlighting the irregularities committed by the Respondent No.2 during the CIRP process of the Corporate Debtor. It is stated that in response to the complaint filed by the Petitioner herein, Respondent No.1 replied stating that prima facie there seems to be some merit in the allegations of the Petitioner herein. However, no action was taken by the Respondent No.1 against Respondent No.2.
f. It is stated that on 05.09.2019 the Petitioner filed an addendum to the complaint already filed by him before the Board.
g. It is stated that since the CIRP process failed, the NCLT passed an order for liquidation of the Corporate Debtor. Thereafter, the Petitioner filed an application under the Right to Information Act, 2005 enquiring about the status of his complaint pending before the Board.
h. It is stated that in response to the RTI Application dated 29.04.2020 filed by the Petitioner, it was informed that the complaint was pending.
i. It is stated that the Petitioner, thereafter, filed the second RTI application on 26.09.2020 inquiring about the status of the complaint. Vide letter dated 16.10.2020, the Petitioner herein was informed that complaint of the Petitioner has been disposed of.
j. The Petitioner has, thereafter, approached this Court with the following prayers:
“(a) issue a writ of mandamus or an appropriate writ directing Respondent No.1 to issue a show cause notice against the Respondent No. 3 and take appropriate action against him;
(b) Issue a writ of mandamus or a writ of any other nature or any other direction / order restraining the Respondent No. 3 from functioning as the Liquidator of the Corporate Debtor during the pendency of these Writ Proceedings and staying the proceedings before the Hon’ble NCLAT during the pendency of the present Writ Proceedings;
(c) Issue a writ of mandamus or a writ of any other nature or any other direction / order staying the proceedings before the Hon’ble NCLAT during the pendency of the present Writ Proceedings;
(d) Issue a writ of mandamus or a writ of any other nature or any other direction/order directing the Respondent No. 1 to remove the Respondent No. 3 from the Liquidation proceedings of the Corporate Debtor; ”
# 4. Notice was issued on 09.11.2020. Replies have been filed by Respondents No.1 & 2.
# 5. Learned Counsel for the Petitioner vehemently contends that Respondent No.2 has not performed his functions as a Resolution Professional. Learned Counsel for the Petitioner also highlights the in-action on the part of the Respondent No.2 in not bringing out the publications as mandated under the CIRP Regulations within the stipulated time. He further points out that the newspapers in which the claims were published did not have wide circulation in the area. He further points out that the list of creditors has not been properly prepared which had its deleterious impact on the resolution process of the Corporate Debtor. He further contends that Respondent No.2 also uploaded incomplete IM. Learned Counsel for the Petitioner also contends that Board has been extremely secretive about the nature and manner in which investigation has been conducted by it on the complaint made by the Petitioner against Respondent No.2. He further states that the Board has not been transparent in respect of the investigation done by it and the result of the investigation.
# 6. Per contra, learned Counsel for Respondent No.1 draws the attention of this Court to the various provisions of the CIRP Regulations and the Insolvency And Bankruptcy Board Of India (Grievance And Complaint Handling Procedure) Regulations, 2017 (hereinafter referred to as ‘the 2017 Regulations’) which have been framed for disposal of grievances and complaints against service providers including Resolution Professionals. He contends that under Regulation 7 of the 2017 Regulations, upon receiving a complaint from any person regarding the nature and manner of performance of a service provider, including a Resolution Professionals, information is sought from both, the complainant and the service provider. The Board investigates into the matter and forms its opinion. If the Board finds that there is no merit in the complaint then the same is closed. However, if the Board is of the opinion that there exists a prima facie case, it may issue a show cause notice under Regulation 11 of the 2017 Regulations or order an investigation under Chapter III of the Insolvency and Bankruptcy Board of India (Inspection and Investigation) Regulations, 2017. He states that in the present case though a preliminary report did find certain irregularities in the manner in which Respondent No.2 has proceeded with the CIRP procedure, however, in the final report barring two issues nothing adverse has been found against Respondent No.2 and the Board has come to the conclusion that no purpose would be achieved in proceeding ahead with the complaint of the Petitioner herein and the complaint was closed.
# 7. Heard the Counsels for the parties and perused the material on record.
# 8. In exercise of the powers conferred under sections 196, 217, read with section 240 of the Insolvency and Bankruptcy Code, 2016, the IBBI has brought out the 2017 Regulations. Regulation 7 of the said Regulations deals with disposal of a complaint and the same reads as under:
“7. Disposal of complaint.
(1) The Board may seek additional information and records from the complainant and information and records from the concerned service provider to form a prima facie view whether the contravention alleged in the complaint is correct.
(2) The complainant and the service provider shall submit the information and records sought under sub-regulation (1) within [seven] days thereof. [Provided that an additional time, not exceeding seven days, may be granted by the Board on request of the service provider.]
(3) [The Board shall investigate the information and records and form an opinion whether there exists a prima facie case within thirty days of the receipt of the complaint .].
(4) The Board shall close the complaint where it is of the opinion under sub-regulation (3) that there does not exist a prima facie case and communicate the same to the complainant.
(5) If the complainant is not satisfied with the decision of the Board under sub-regulation (4), he may request a review of such decision [within thirty days].
(6) The Board shall dispose of the review under sub-regulation (5) within thirty days of the receipt of the request for review by an order with an opinion whether there exists a prima facie case.
(7) Where the Board is of the opinion that there exists a prima facie case, it may issue a show cause notice under regulation 11 of the Insolvency and Bankruptcy Board of India (Inspection and Investigation) Regulations, 2017 or order an investigation under Chapter III of Insolvency and Bankruptcy Board of India (Inspection and Investigation) Regulations, 2017].
(8) Where the Board is of the opinion that the complaint is not frivolous, it shall refund the fee of two thousand five hundred rupees received under sub-regulation (3) of regulation 3″
# 9. This Court vide Order dated 03.02.2023 had directed the Respondent No.1 to file the Interim Report dated 13.01.2020 and the Final Report dated 29.05.2020 to satisfy itself about the nature and manner of investigation carried out by the Board against Respondent No.2. The said reports have been filed.
# 10. This Court has perused the Draft Inspection Report and the Final Inspection Report. A perusal of the Final Inspection Report shows that the Investigating Agency has thoroughly examined the complaint by recording the factual position on each aspect, the legal provisions applicable, the observations made in the Draft Inspection Report, the submissions made by the Insolvency Professional and the final observations, the summary of observations on all the aspects of allegations raised by Petitioner has been tabulated as under: . . . . . . . .
# 11. It is settled law that a High Court, while exercising its jurisdiction under Article 226 of the Constitution of India, only looks into the decision making process and unless it is found that the decision has been arrived at by adopting a process which is contrary to law or by adopting a procedure tailor made to help a particular party, Courts do not normally interfere. No material has been furnished by the Petitioner to substantiate that the Board has acted in a manner to favour Respondent No.2 or to shield the mis-deeds of Respondent No.2, who is Insolvency Resolution Professional. In fact the final report records certain irregularities committed by Respondent No.2 which, this Court is sure, will be taken care of by the Board before appointing Respondent No.2 in further cases as Insolvency Resolution Professional.
# 12. Under Article 226 of the Constitution of India, this Court cannot substitute its own conclusion to the one arrived at by experts until and unless there is gross miscarriage of justice which strikes at the root of the case. A team of experts have considered the case and have arrived at a conclusion and this Court cannot hazard a venture into this domain. It is well settled that the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable.
# 13. Section 196 of the IBC delineates the powers and functions of the Board and the same reads as under:
“Section 196. Powers and functions of Board.
(1) The Board shall, subject to the general direction of the Central Government, perform all or any of the following functions namely:—
(a) register insolvency professional agencies, insolvency professionals and information utilities and renew, withdraw, suspend or cancel such registrations;
[(aa) promote the development of, and regulate, the working and practices of, insolvency professionals, insolvency professional agencies and information utilities and other institutions, in furtherance of the purposes of this Code;]
(b) specify the minimum eligibility requirements for registration of insolvency professional agencies, insolvency professionals and information utilities;
(c) levy fee or other charges 2 [for carrying out the purposes of this Code, including fee for registration and renewal] of insolvency professional agencies, insolvency professionals and information utilities;
(d) specify by regulations standards for the functioning of insolvency professional agencies, insolvency professionals and information utilities;
(e) lay down by regulations the minimum curriculum for the examination of the insolvency professionals for their enrolment as members of the insolvency professional agencies;
(f) carry out inspections and investigations on insolvency professional agencies, insolvency professionals and information utilities and pass such orders as may be required for compliance of the provisions of this Code and the regulations issued hereunder;
(g) monitor the performance of insolvency professional agencies, insolvency professionals and information utilities and pass any directions as may be required for compliance of the provisions of this Code and the regulations issued hereunder;
(h) call for any information and records from the insolvency professional agencies, insolvency professionals and information utilities;
(i) publish such information, data, research studies and other information as may be specified by regulations;
(j) specify by regulations the manner of collecting and storing data by the information utilities and for providing access to such data;
(k) collect and maintain records relating to insolvency and bankruptcy cases and disseminate information relating to such cases;
(l) constitute such committees as may be required including in particular the committees laid down in section 197;
(m) promote transparency and best practices in its governance;
(n) maintain websites and such other universally accessible repositories of electronic information as may be necessary;
(o) enter into memorandum of understanding with any other statutory authorities;
(p) issue necessary guidelines to the insolvency professional agencies, insolvency professionals and information utilities;
(q) specify mechanism for redressal of grievances against insolvency professionals, insolvency professional agencies and information utilities and pass orders relating to complaints filed against the aforesaid for compliance of the provisions of this Code and the regulations issued hereunder;
(r) conduct periodic study, research and audit the functioning and performance of to the insolvency professional agencies, insolvency professionals and information utilities at such intervals as may be specified by the Board;
(s) specify mechanisms for issuing regulations, including the conduct of public consultation processes before notification of any regulations;
(t) make regulations and guidelines on matters relating to insolvency and bankruptcy as may be required under this Code, including mechanism for time bound disposal of the assets of the corporate debtor or debtor; and
(u) perform such other functions as may be prescribed.
(2) The Board may make model bye-laws to be to adopted by insolvency professional agencies which may provide for—
(a) the minimum standards of professional competence of the members of insolvency professional agencies;
(b) the standards for professional and ethical conduct of the members of insolvency professional agencies;
(c) requirements for enrolment of persons as members of insolvency professional agencies which shall be non-discriminatory;”
# 14. Respondent No.1/Board is the authority to regulate the functioning of the Insolvency Professionals and the Board comprises of experts in the field who have been appointed by the Central Government to carry out the functions specified under Part IV of the IBC. It is well settled that Courts do not sit as an Appellate Authority over the decisions taken by the experts.
# 15. The Apex Court in Mansukhlal Vithaldas Chauhan v. State of Gujarat, (1997) 7 SCC 622, has observed as under:
“25. This principle was reiterated in Tata Cellular v. Union of India [(1994) 6 SCC 651 : AIR 1996 SC 11] in which it was, inter alia, laid down that the Court does not sit as a court of appeal but merely reviews the manner in which the decision was made particularly as the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision which itself may be fallible. The Court pointed out that the duty of the Court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?;
2. committed an error of law;
3. committed a breach of the rules of natural justice;
4. reached a decision which no reasonable tribunal would have reached; or
5. abused its powers.
26. In this case, Lord Denning was quoted as saying: (SCC pp. 681-82, para 83)
“Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a judicial decision, or a quasi-judicial decision, or an administrative decision. Sometimes Parliament says its decision is to be final. At other times it says nothing about it. In all these cases the courts will not themselves take the place of the body to whom Parliament has entrusted the decision. The courts will not themselves embark on a rehearing of the matter. See Healey v. Minister of Health [(1955) 1 QB 221 : (1954) 3 All ER 449] .”
27. Lord Denning further observed as under: (p. 682)
“If the decision-making body is influenced by considerations which ought not to influence it; or fails to take into account matters which it ought to take into account, the court will interfere. See Padfield v. Minister of Agriculture, Fisheries and Food [1968 AC 997 : (1968) 1 All ER 694] .” (emphasis supplied)
28. In Sterling Computers Ltd. v. M&N Publications Ltd. [(1993) 1 SCC 445 : AIR 1996 SC 51 : (1993) 1 SCR 81] it was pointed out that while exercising the power of judicial review, the Court is concerned primarily as to whether there has been any infirmity in the decision-making process? In this case, the following passage from Professor Wade’s Administrative Law was relied upon: (SCC p. 457, para 17)
“The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which legislature is presumed to have intended.” (emphasis supplied)
29. It may be pointed out that this principle was also applied by Professor Wade to quasi-judicial bodies and their decisions. Relying upon the decision in R. v. Justices of London [(1895) 1 QB 214] . Professor Wade laid down the principle that where a public authority was given power to determine a matter, mandamus would not lie to compel it to reach some particular decision.
30. A Division Bench of this Court comprising Kuldip Singh and B.P. Jeevan Reddy, JJ. in U.P. Financial Corpn. v. Gem Cap (India) (P) Ltd. [(1993) 2 SCC 299 : AIR 1993 SC 1435 : (1993) 2 SCR 149] observed as under: (SCC pp. 306-07, para 11)
“11. The obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to observe. It is true that the distinction between a quasi-judicial and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak v. Union of India [(1969) 2 SCC 262 : AIR 1970 SC 150] . Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have ‘a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred’. (Lord Diplock in Secy. of State for Education and Science v. Tameside Metropolitan Borough Council [1977 AC 1014 : (1976) 3 All ER 665] AC at p. 1064.) The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene.” (emphasis supplied)
# 16. Similarly, the Apex Court in State of NCT of Delhi v. Sanjeev, (2005) 5 SCC 181, has held as under:
“17. The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.
18. The famous case commonly known as “the Wednesbury case [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1947) 2 All ER 680 : (1948) 1 KB 223 (CA)] ” is treated as the landmark so far as laying down various basic principles relating to judicial review of administrative or statutory direction.
19. Before summarising the substance of the principles laid down therein we shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn.[Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1947) 2 All ER 680 : (1948) 1 KB 223 (CA)] (KB at p. 229 : All ER pp. 682 H-683 A). It reads as follows:
“… It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word ‘unreasonable’ in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority. … In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another.”
Lord Greene also observed (KB p. 230 : All ER p. 683 F-G)
“… it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable. … The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another.” (emphasis supplied)
Therefore, to arrive at a decision on “reasonableness” the court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the court to substitute its view.
20. The principles of judicial review of administrative action were further summarised in 1985 by Lord Diplock in CCSU case [(1984) 3 All ER 935 : 1985 AC 374 : (1984) 3 WLR 1174 (HL)] as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in that case as follows : (All ER p. 950h-j)
“Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the European Economic Community;”
Lord Diplock explained “irrationality” as follows : (All ER p. 951a-b)
“By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”
21. In other words, to characterise a decision of the administrator as “irrational” the court has to hold, on material, that it is a decision “so outrageous” as to be in total defiance of logic or moral standards. Adoption of “proportionality” into administrative law was left for the future.
22. These principles have been noted in the aforesaid terms in Union of India v. G. Ganayutham [(1997) 7 SCC 463 : 1997 SCC (L&S) 1806] . In essence, the test is to see whether there is any infirmity in the decision-making process and not in the decision itself. (See Indian Rly. Construction Co. Ltd. v. Ajay Kumar [(2003) 4 SCC 579 : 2003 SCC (L&S) 528] .)
# 17. As stated above, this Court does not find that the decision making process adopted by the Board or the decision based on the final report is perverse or is contrary to law or against public interest, which would warrant interference from this Court under Article 226 of the Constitution of India. Court while exercising its jurisdiction under Article 226 of the Constitution of India while examining any enquiry report does not go into excruciating detailed facts nor does it substitute its conclusion to the one arrived at by the fact finding body. If the process adopted in the enquiry is fair, reasonable and transparent then the Writ Court does not interfere with the findings to substitute its own conclusion to the one arrived at by the authority simply because another view is possible
# 18. Accordingly, the writ petition is dismissed along with pending applications, if any.
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