Registrar of the NCLT cannot decide upon applicability of notification increasing the IBC threshold in cases: Delhi High Court
The Registrar of the NCLT being in the administrative capacity cannot decide on the jurisdiction of NCLT in hearing a case based on the pecuniary threshold. The issue has arisen after the 24th March 2020, Notification in which the pecuniary threshold under the Insolvency &amp; Bankruptcy Code, 2016, was increased from Rs. 1 Lakh to Rs. 1 crore. The Delhi High Court presided over by J. P.M. Singh, laid down this ratio in the case of Skilltech Services Pvt. Ltd. Vs. Registrar, NCLT, New Delhi &amp; Anr., [W.P. (C) 474/2021]. The Petitioner in this case had filed a petition under this court stating that he had filed a Section 9 petition under IBC, before the appropriate bench of the NCLT. It was the petitioner’s grievance that the Registrar of the NCLT did not list the matter before the appropriate bench on the ground that the threshold of the pecuniary jurisdiction of the NCLT had been increased from Rs. 1 lakh to Rs. 1 crore. The Counsel for the Petitioner submitted that the appropriate NCLT bench has the power and jurisdiction under the IBC to decide upon the pecuniary threshold of a case and the same could not be decided by the Registrar. Further reference was made to the NCLT Kochi order where it was stated that if disputes had arisen prior to the outbreak of the Covid-19 pandemic, the notification would not apply as this would not be made applicable retrospectively. The Court carefully analyzed the submissions made by the parties and was of the opinion that it was for the appropriate bench of the NCLT to judicially determine the issue and decide whether notice was liable to be issued in the matter or not. The Court stated that, “This court is of the opinion that the question as to whether the NCLT has jurisdiction to entertain a particular case or not cannot be determined by the Registrar in the administrative capacity. The Registrar would have to place the matter before the appropriate bench of the NCLT, for the said question to be judicially determined. The appropriate bench of the NCLT would have to then, take a considered view as to whether notice is liable to be issued in the matter or not.”
 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 13th January 2021. W.P.(C) 474 2021 & CM APPL. 1227 2021 SKILLSTECH SERVICES PRIVATE LIMITED ..... Petitioner Through: Mr. Swaroop George Advocate M 9871144284) REGISTRAR NATIONAL COMPANY LAW TRIBUNAL NEW Respondents DELHI & ANR. Through: Mr. Harish Vaidyanathan Shankar CGSC with Mr. Akash Meena Ms. Kinjal Shrivastava & Mr. Varun Kishore Advocates. JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.This hearing has been done by video conferencing. The present petition has been filed by the Petitioner seeking listing of its petition under Section 9 of the Insolvency and Bankruptcy Code 2016 before the appropriate bench of the National Company Law Tribunal hereinafter “NCLT”). The case of the Petitioner is that the Registrar of the NCLT has failed to even list the Petitioner’s matter before the appropriate bench of NCLT on the ground that the threshold of the pecuniary jurisdiction of the NCLT has now been amended by a notification dated 24th November 2020 from Rs.1 lakh to Rs.1 crore. 4. Mr. George ld. counsel for the Petitioner submits that the question as to whether the NCLT has the pecuniary jurisdiction or not cannot be decided by the Registrar of the NCLT but in fact the same ought to be looked into and W.P.(C) 474 2021 Page 1 of 3 determined by an appropriate bench of the NCLT after appreciating the fact situation involved. Reliance is placed upon the view of the NCLT Kochi in IA No. 175 KOB 2020 in IBA 34 KOB 2020 titled M s Tharakan Web Innovations Pvt. Ltd. v. Cyriac Njavally wherein the Tribunal has held that if disputes had arisen prior to the outbreak of the pandemic the said notification may not apply as the notification cannot be made applicable retrospectively. 5. Mr. Harish Vaidyanathan ld. Counsel appearing for the Respondent submits that the said judgment of the NCLT Kochi Bench has been stayed by the Kerala High Court. This court is of the opinion that the question as to whether the NCLT has jurisdiction to entertain a particular case or not cannot be determined by the Registrar in the administrative capacity. The Registrar would have to place the matter before the appropriate bench of the NCLT for the said question to be judicially determined. The appropriate bench of the NCLT would have to then take a considered view as to whether notice is liable to be issued in the matter or not. The question as to whether the notification dated 24th March 2020 applies to a particular petition that has been filed prior to the said notification or not is also a question to be determined by the Bench of the NCLT and not by the Registrar of the Tribunal. Accordingly it is directed that the petition under section 9 of the IBC moved by the Petitioner before the NCLT shall be placed by the Registrar NCLT before an appropriate bench for proceeding further in accordance with law. The listing of the petition is directed to be done within a period of ten days from today. Advance intimation of listing of the said matter shall be given to the W.P.(C) 474 2021 Page 2 of 3 Petitioner’s counsel by the Registrar. 10. The present petition and all pending applications are disposed of in the above terms. JANUARY 13 2021 PRATHIBA M. SINGH JUDGE W.P.(C) 474 2021 Page 3 of 3 