SEKAR REPORTER

Court News from Madras High Court

THE MATTER OF:Adv. (CA) V. Venkata Sivakumar……AppellantVERSUS

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IN THE SUPREME COURT OF INDIA
(ORDER XVI RULE 4(1) (a)
CIVIL APPELLATE JURISDICTION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CIVIL) No. 2024

IN THE MATTER OF:
Adv. (CA) V. Venkata Sivakumar
……Appellant
VERSUS

Insolvency and Bankruptcy Board of India
And 5 others
…..Respondents
INDEX
SL. No. PARTICULARS Copies Court Fee

  1. Synopsis and List of Dates 1 NA
  2. Impugned Order 1 NA
    3 SLP with Affidavit and Prayer 1
  3. Appendix 1 NA
  4. Annexures Page No. to 1 NA
  5. Advocate Card 1 NA
    Total 5000

DATE: 20-03-2024

ADV. (CA) V. VENKATA SIVAKUMAR
PETITIONER-IN-PERSON

IN THE SUPREME COURT OF INDIA
(ORDER XVI RULE 4(1) (a)
CIVIL APPELLATE JURISDICTION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CIVIL) No. 2024

PAPER BOOK

IA NO. OF 2024

APPLICATION FOR PERMISSION TO
APPEAR AND ARGUE IN PERSON

(FOR INDEX, KINDLY SEE INSIDE)
ADV. (CA) V. VENKATA SIVAKUMAR
PETITIONER – IN – PERSON

INDEX
Sl No. Pariculars of Documents Page No. of part to which it belongs Remarks
Part I
(Contents
of Paper Book) Part II
(Contents
of file alone)
(I) (II) (III) (IV) (V)

  1. Court Fee
  2. Office Report on Limitation A
  3. Listing Performa
  4. Cover Page of Paper Book
  5. Index of Record of Proceeding
  6. Limitation Report prepared by the Registry
  7. Defect List
  8. Note Sheet
  9. Synopsis and List of Dates B-L
  10. Copy of the Impugned Judgment and final order dated 22-01-2024 passed the Hon’ble Division Bench of Hon’ble Madras High Court in W. P.No.16650 of 2020, W P.No.14448 of 2021 & W M P.No.24548 of 2020 1-38
  11. Special Leave Petition with Affidavit. 39 –
  12. APPENDIX-1 Relevant provision of code , citation, jurisprudence & RTI replies sec 204, sec 196(1), Regulation 23A, Jurisprudence of post decisional hearings, Jurisprudence of manifestly arbitrary exercise of power, Failure of I&B code (25laks) lost Parliamentary standing Committee report, RTI, RTI received from IBBI )
  13. ANNEXURE-A/1: True Copies of Performance reports on functioning of IBC, suggestions for improvements from Stakeholders including confirmations through RTI queries, BLRC report on Twin Tyre Architecture
  14. ANNEXURE-A/2: True copy of the Affidavit in WP.11059 & 11062 of 2019
  15. ANNEXUREA-A/3: True copies of the
    Written Submissions and order of the
    Hon’ble Madras High Court in WP. No.
    11059 & 11062 of 2019
  16. ANNEXURE-A/4: True copies of
    the Disciplinary Committee orders in IIIPI & IBBI
  17. ANNEXURE-A/5: True copies of the
    Affidavit in WP.13229 of 2020
  18. ANNEXURE-A/6: True copies of the & Judgments in WP.13229 of 2020
  19. ANNEXURE-A/7: True copies of the
    Affidavit challenging the vires of Sec 204 of the I&B Code
  20. ANNEXURE-A/8: True copies of the
    Affidavit challenging the vires of Regulation 23A.- Anil Trividi Vs. IBBI
  21. ANNEXURE-A/9: True copies of the
    Judgments in WP.16650 of 2020 & WP.14448 of 2021
  22. ANNEXURE-A/10: True copies of the
    Affidavit and Written Submissions
    for Rev.Appl.35 of 2024
  23. ANNEXURE-A/11: True copies of the order of Rev.Appl.35 of 2024
  24. A-12 – Affidavit of WP. 21186 of 2023 & Judgment of WP.21186 of 2023
  25. A- 13: True copies of the Affidavit in WA.218 of 2024 &Written submissions
  26. Grounds of Appeal WA.218 of 2024
  27. A – 15: True copies of the Investigation Report and the Show Cause Notice.
  28. A – 16 : True copies of the Rejoinder filed by IBBI
  29. A – 17 : RTI Reply received
  30. A-18 : Letter correspondence with IBBI
  31. A – 19: Disciplinary Committee report
  32. Publication in the media and on the website
  33. Copy of the Advocate Membership Card

IN THE SUPREME COURT OF INDIA
(ORDER XVI RULE 4(1) (a)
CIVIL APPELLATE JURISDICTION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CIVIL) No. 2024

IN THE MATTER OF:
Adv. (CA) V. Venkata Sivakumar
……Petitioner
VERSUS
Insolvency and Bankruptcy Board of India
And 5 others
…..Respondents
OFFICE REPORT ON LIMITATION

  1. The Petition is/are within time.
  2. The Petition is barred by time and there is delay of days in filing the same against order dated Judgment and final common order dated 22-01-2024 passed by the Hon’ble Division Bench of Hon’ble Madras High Court in W.P. 16650 of 2020, W.P. 14448 of 2021 and W.M.P. 24548 of 2020 and petition for Condonation of days delay has been filed.
  3. There is delay of days in refilling the petition and petition for
    Condonation of day’s delay in refilling has been filed.

BRANCH OFFICER
Place: New Delhi
Dated: 20-03-2024

PROFORMA FOR FIRST LISTING
SECTION

 Central Act: (Title)    Insolvency and Bankruptcy Code

Section: Under Article 136 of Constitution of India

 Central Rule: (Title)   N.A.

 Rule No. (s):   N.A.

 State Act: (Title)  N.A.

 Section:    N.A.

 State Rule: (Title) N.A.

 Rule No.(s):    N.A.

 Impugned Interim order: (Date)  NA

 Impugned Final

Order/Decree: (Date) 22-01-2024

 High Court: (Name)  Hon’ble Madras High Court
    Name of Judges: Hon’ble Mr. Sanjay V. Gangapurwala,

Chief Justice
Hon’ble Mr. Justice
D. Bharatha Chakravarthy
Tribunal/Authority: (Name) Hon’ble Division Bench of
Hon’ble Madras High Court

A-2

  1. Nature of matter: Special Leave Petition
  2. [a] Appellant/Appellant No.1 Adv.(CA)V.Venkata
    Sivakumar
    (b) e-mail ID: arunasri.siva@gmail.com (c) Mobile phone No.: 9444785500
  3. (a) Respondents: IBBI and 5 others
    (b) e-mail ID: rajesh.k10@ibbi.gov.in (c) Mobile phone number: —-
  4. (a) Main Category classification: 18
    (b) Sub classification: 1807
  5. Not to be listed before: N.A.
    6A Similar disposed of matter which citation, if any, and cases details No similar matter is disposed
    Of
    6B. Similar pending matter with case
    Details No similar matter is pending
  6. Criminal Matters:
    (a) Whether accused/convicted has
    surrendered: Yes No.
    (b) FIR No. & Date NA
    (c) Police Station NA
    (d) Sentence Awarded: NA
  7. Land Acquisition Matters: NA
    (a) Date of Section 4 Notification N.A.
    (b) Date of Section 6 notification: N.A.
    (c) Date of Section 17 notification: N.A.
  8. Tax Matters: State the tax effect: N.A.
  9. Special Category (first
    Appellant/appellant only) N.A.
    Senior Citizen 65 years SC/ST Woman/Child
    Disabled √ Legal Aid case √ In custody
  10. Vehicle Number (in case of Motor
    Accident Claim matters): N.A.

Adv. (CA) V. Venkata Sivakumar
Appellant-in-person
arunari.siva@gmail.com
DATE: 20-03-2024

B
SYNOPSIS

  1. INTRODUCTION:
    The present Special Leave Petition is filed against the common final order dated 22-01-2024 (Common Impugned Order) passed by the Hon’ble Division Bench of Hon’ble Madras High Court in Writ Petition No’s 16650 of 2020 and W.P. 14448 of 2021 & W.M.P. No. 24548 of 2020 challenging the vires of Sec 204 of (a) (b) (c) (d) & (e) of I&B Code 2016 & Regulation 23A of the Insolvency and Bankruptcy Board of India (Model Bye-Laws and Governing Board of Insolvency Professional Agencies).
  2. ABOUT THE PETITIONER is a Practicing Advocate, Chartered Accountant and an Insolvency Professional with a standing of 40 years, Renowned teacher trained several thousands of CA and LL.B students, authored several books Strategic Cost Accounting and Strategic Financial Management. Highly appreciated for his efforts (PILs) in bringing reforms to the Legal Education, in the functioning of Insolvency Code and NCLT adjudication mechanism.
  3. ABOUT THE 1ST & 2ND RESPONDENTS – 1st Respondent IBBI (Insolvency Bankruptcy Board of India) a Statutory Body and the 2nd Respondent a Company formed under Section 8 of companies act are the regulators of the petitioner carrying out parallel disciplinary proceedings against the member as empowered under section 196 and 204 of I&B Code of 2016.

A. SECTION 204 AND 196 of I&B Code 2016

(1) 204. An insolvency professional agency shall perform the following functions, namely: —

(a) Grant membership to persons who fulfill all requirements set out in its byelaws on payment of membership fee;

(b) lay down standards of professional conduct for its members;

(c) monitor the performance of its members;

(d) Safeguard the rights, privileges and interests of insolvency professionals who are its members;

(e) suspend or cancel the membership of insolvency professionals who are its members on the grounds set out in it bye-laws;

(2) 196. (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.

(3) Regulation 23A : “The authorization for assignment shall stand suspended upon initiation of disciplinary proceedings by the Agency or by the Board, as the case may be.”

B. The above Provisions in short give rise to a situation where a person alleged of theft will have to undergo trial before to magistrates at a time and wait for both the Judgments which is a situation that was never contemplated in our constitution.

C. Hon’ble Division Bench of Hon’ble Madras High Court in Review Petition 35 of 2024 against the Impugned Order under challenge concurred with the submission of the Petitioner on the errors of law and facts apparent, but since the decision was based on the Coordinated Bench order in WP. 13229 of 2020 the appropriate forum will be this Hon’ble Apex Court— page no.

D. SUMMARY OF THE GROUNDS:
i. Violation of Article 14 Equality Clause, ii. Unreasonable Restriction without any nexus to the objectives of the I& B Code, iii. Scope for malafide exercise of power without Justice creating Tyranny, iv. Manifestly Arbitrary and substantively unreasonable, v. Violation of Soul and Spirit of Our Constitution, vi. Absence of fair procedure as envisaged in Article 21, vii. Violation of Article 20 (2) Double Jeopardy, viii. Malafide of the 1st and 2nd Respondents, ix. Abuse of Disciplinary Jurisdiction

  1. THE PROCEEDINGS BEFORE THE HON’BLE MADRAS HIGH COURT RESULTING IN THE IMPUGNED ORDER IN SHORT

a. The Petitioner earlier filed a Writ Petition No.13229 of 2020 challenging the vires of Regulation 7A of IBBI Regulations, The Hon’ble Madras High Court dismissed the Petition mis-appreciating the issue raised by relying on the ratio settled in Sampath Ganesh Vs. Union of India, Hon’ble Division Bench of Mumbai which has no application for the issue raised and in fact favourable to the Petitioner in the current Petition, W.P. No. 16650 of 2020 under challenge before this Hon’ble Apex Court.

i. Para 185 of Sampath Ganesh vs Union of India – One of the major challenges is on the ground of Double Jeopardy and lack of proper procedure. Is action against the company auditor under S. 140(5) quasi criminal? Discussion in an Advocate us. Bar Council of India (supra) by Hon. 2 Judge Bench of Apex Court shows that their action was being taken for professional misconduct and. punishment was suspension from practice for three years. These proceedings are held quasi criminal in nature and accordingly standards and. procedure relevant in criminal jurisprudence are directed, to be used.

ii. Para XIII of Sampath Ganesh vs Union of India When the 2O13 Act recognizes ICA (Institute of the Chartered Accountants)” as the disciplinary body to regulate the profession of CA and its power to punish erring CA, and then gives power to NFRA to proceed against CA in specified cases as also to punish, it is difficult to hold that very same power can be read in S.140 (5) with NCLT. The Parliament cannot be presumed to have created multiple agencies with same power.

b. The Writ Petition No. 16650 of 2020 and W.P. No. 14448 of 2021 was heard at length and relying on the ratio laid down W.P No.13229 of 2020 this Petition was dismissed.

c. In the meanwhile another member challenged the Constitutional Validity of Regulation 23A Before the Hon’ble Division Bench of Bombay High Court vide W.P. No.13865 of 2024 in V Anil Trivedi vs. IBBI. The Hon’ble Division Bench of Bombay relying on the judgement of Hon’ble Madras High Court in a Writ Petition No.13229 of 2020 & W.P. No. 16650 of 2020 in Venkata Sivakumar Vs. Union of India upheld the Constitutional validity of Regulation 23A of IBBI Regulations.

d. The Petitioner filed a Review Petition before the Hon’ble Madras High Court pointing out the infirmities in the ratio laid down in W.P. No. 13229 of 2020 which was the basis for dismissing the current Writ Petition/ the Impugned order under challenge.

e. The Hon’ble Division Bench after hearing the Petitioner for 90 minutes, orally concurred with the submissions and were in full agreement on the errors of facts and law raised by the Petitioner but opined that since the judgement of Hon’ble Madras High Court in W.P. No.13229 of 2020 is in force the review petition cannot be admitted and the appropriate forum for agitating all the issues will be this Hon’ble Apex Court hence this Petition is being filed for setting aside the Impugned order. The 1st Respondent did not give any reply for the main issues raised.

f. There is no rationale for empowering a Professional agency to discipline the members when IBBI is already carrying out the job.

g. There is no rationale for not giving Appellate powers to IBBI against the orders of the Professional agency.

h. The rationale for immediate suspension on the issue of Show Cause Notice when the hearing is expected to be completed within a short time.

i. The rationale for lack of accountability by way of compensation for wrong and negligent acts of the officials exercising sweeping powers seriously damaging the Professional standing of the members.

j. The rationale for maintaining Disciplinary mechanism at such high cost when the IBBI/ IIIPI are funded out of members fees and subscription.

k. The rationale for not giving any opportunity for members through an elected body in the decision making process, resulting in IBBI which is already managed by executives having no practical experience in managing the companies are making Regulations for reviving the sick companies.

  1. THE PROCEDURE FOR HANDLING COMPLAINTS – Whenever a complaint is received from an aggrieved party against a member.

i. The 1st Respondent (IBBI), empowered under section 196 of I&B Code will forward the complaint to the member for explanation and the same will be processed by the junior officials who will take a prima facie opinion and issue show cause notice (SCN) suspend the member immediately and publish the same on the web site.

ii. The member will be given 15 days time to reply for the SCN and also an opportunity of being heard before passing the final order by the Disciplinary Authority normally presided over by a single member having no legal experience/qualification will decide the matter.

iii. The DC authority will normally convict the member and award Disproportionate punishments in the form of heavy fines and removals from the membership not withstanding will also call media and the senior officials will brief about the punishment periodically the main objective of humiliating the most highly qualified members is to cover up their failures in the effective implementation of the code which resulted in Nation losing Rs. 16 Lakhs Crores.

iv. The IBBI officials by their complete disregard to the ground reality and suggestions of the Petitioners failed to curb serious loop holes which could have prevented such huge losses to the Nation.

a. Till date IBBI has not published the reasons for such huge haircuts taken only by PSU Banks while the Private lenders were able to recover 100% inclusive of Interest and Penalties?

b. How can a Insolvency Professional, in most of the cases being a retired Bank manager or a Lawyer, CS who never had any experience in running the companies be appointed managing 10 to 20 assignments at a time without having any infrastructure only based on quoting lowest fees?

c. The reasons for delays in the Resolution Process, the role of top PSU Bank officials, suspended Board of Directors and serious deficiency in the Hon’ble NCLT adjudicating mechanism which resulted in Hon’ble NCLT President confirming 15 out of 23 adjudicating authorities were found to be indulging corruption.

LIST OF DATES AND EVENTS

DATE EVENTS
28-08-2020 The 2nd Respondent also issued another SCN alleging violation of Regulation 7A and immediately suspending the member and displaying on the website.
31-08-2020 The 1st Respondent issued a SCN alleging violation of
Regulation 7A.
10-09-2020 Appeared before the 1st Respondent through VC hearing
14-09-2020 The Petitioner challenged the vires of Regulation
7A vide WP.No.13229 of 2020-affidavit & ws
26-10-2020 The Petitioner appeared before the DC authority
of the 2nd Respondent
01-12-2020 The 1st Respondent found the Petitioner guilty and
imposed a fine of Rs.10,000/- vide the order No. IIIPI/DC/29/2020-21 dated 01-12-2020
17-12-2020 The 2nd Respondent also found the Petitioner guilty
and confirmed the fine imposed order No.
03-11-2020 The Hon’ble Madras High Court dismissed the WP.No.13229 of 2020 based on in applicable ratio
decided in Sampath Ganesh vs Union of India -judgment
11-12-2020 The Petitioner filed a WP.No.16650 of 2020
challenging the vires of 204(e) & vide WP.No.16650
of 2020 which empowers the Respondents to exercise Disciplinary Jurisdiction multiple times which is ultra
vires to this Constitution – affidavit
28-12-2020 The Petitioner challenged the DC orders of 1st &
2nd Respondents before Hon’ble Madras High Court in WP.No.4458 of 2021 and Interim Stay was granted.
– affidavit & common ws
23-06-2021 The Petitioner filed WP.No.14448 of 2021 challenging the vires of Regulation 23A which empowers both the Respondents to suspend the member at the Prima Facie stage without confirming to the settled jurisprudence of Hon’ble Supreme Court in post decisional hearing matters
22-01-2024 The WP.No.16650 of 2020 & WP.NO.14448 of 2021
and Hon’ble Division Bench vide the order dismissed
the Petitions upholding Constitutional validity relying on the ratio settled in WP.No.13229 of 2020 which is not applicable to the issues raised. – judgment common order
29-01-2024 The Petitioner filed a Rev. Petition No.35 of 2024 and
the Hon’ble Division Bench vide a reasoned – affidavit
20-02-2024 Order dismiss the Review Petition however a Bare
Perusal of order reveal the admission of errors of law
& facts apparent on the face of the order as the
Hon’ble Division Bench was to follow the precedents set
by the Coordinated Bench. – judgment
20-03-2024 Hence the present Special Leave Petition

FORM 28
IN THE SUPREME COURT OF INDIA
(ORDER XVI RULE 4(1) (a)
CIVIL APPELLATE JURISDICTION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CIVIL) No. 2024

(Against the Impugned Judgement and Final order dated 22-01-2024 passed the Hon’ble Division Bench of Hon’ble Madras High Court in W.P. No. 16650 of 2020, W.P. 14448 of 2021 & W.M.P. 24548 of 2020)

BETWEEN : POSITION OF PARTIES
In the High Court In this Court
Adv. (CA) V. Venkata Sivakumar
No: 10/11, Dr. Subbarayan Nagar Main Road
Kodambakkam, Chennai – 600024
Petitioner
Petitioner
AND
Insolvency and Bankruptcy Board of India (IBBI)
Represented by Deputy General Manager
7th Floor, Mayur Bhawan, Shankar Market, Connaught Circus,
New Delhi – 110001
1st Respondent
1st Respondent
Indian Institute of Insolvency Professional of ICAI (IIIPI)
Represented by Mr. Rahul Madan, (MD)
ICAI Bhawan, 8th Floor,
Hostel Block, A-29, Sector-62,
Noida, Uttar Pradesh – 201309
2nd Respondent
2nd Respondent
ICSI Institute of Insolvency Professionals
Rep. By. Dr. Binoy J. Kattadiyil
(MD)
3rd Floor, ICSI House, 22,
Institutional Area, Lodi Colony,
New Delhi – 110003
3rd Respondent
3rd Respondent
Insolvency Professional Agency of Institute of Cost Accountants of
India Rep. By. Dr. S.K. Gupta (CEO)
4th Floor, CMA Bhawan, 3 Institutional Area, Lodhi road,
New Delhi – 110001
4th Respondent
4th Respondent
Dr. M.S. Sahoo
Insolvency and Bankruptcy Code of India
7th Floor, Mayur Bhawan, Shankar Market, Connaught Circus,
New Delhi – 110001
5th Respondent
5th Respondent
The Union of India
Secretary to Government of India,
Ministry of Corporate Affairs
(MCA)
Garage No. 14, “A” Wing
Shastri Bhawan, Rajendra Prasad Road, New Delhi- 110001
6th Respondent
6th Respondent

To
The Hon’ble Chief Justice of India and His Hon’ble Companion Justice of Hon’ble Supreme Court of India.
I. THE SPECIAL LEAVE PETITION OF THE PETITIONER MOST RESPECTFULLY SHOWETH:-

  1. The Petitioner respectfully submits that this present Special Leave Petition is filed against the common final order dated 22-01-2024 (Common Impugned Order) passed by the Hon’ble Division Bench of Hon’ble Madras High Court in Writ Petition No’s 16650 of 2020 and W.P. 14448 of 2021 & W.M.P. No. 24548 of 2020 challenging the vires of Sec 204 of (a) (b) (c) (d) & (e) of I&B Code 2016 & Regulation 23A of the Insolvency and Bankruptcy Board of India (Model Bye-Laws and Governing Board of Insolvency Professional Agencies).
  2. The Petitioner states that no other matter has been filed by him against the Impugned Judgement and final order passed by the Hon’ble Division Bench of Hon’ble Madras High Court in Writ Petition No’s 16650 of 2020 and W.P. 14448 of 2021 & W.M.P. No. 24548 of 2020 challenging the vires of Sec 204 of (a) (b) (c) (d) & (e) of I&B Code 2016 & Regulation 23A of the Insolvency and Bankruptcy Board of India (Model Bye-Laws and Governing Board of Insolvency Professional Agencies).
  3. The Annexure A/1 to A/ produced along with Special Leave Petition are true copies of the pleadings /documents which formed part of the records of the case in the court below against whose order the instant Petition is being filed.

II. QUESTION OF LAW
The following questions arise for consideration,

  1. Whether Section 204 of IBC is:
    (a) violative of Article 14,19, 21 & 20(2) of the Constitution of India, in as much as it provides for disciplinary proceedings by two agencies parallely;
    (b) is manifestly arbitrary and prevents access to effective / time bound justice and
    (c) Is it illegal for confirming unbridled and excessive powers to the agencies?
  2. Whether Regulation 23 A is liable to be struck down as
    a) manifestly arbitrary and substantively unreasonable
    (b) conferring unbridled, excessive power on IPAs and
    (c) for violation of principles of natural justice ?

III. BRIEF FACTS LEADING TO THE PRESENT CIVIL APPEAL ARE AS UNDER

  1. The Petitioner is a Public spirited Person, with the experience gained as a Resolution Professional, handling assignments in conducting workshops for IBBI and Senior Bank Officials after interacting with many experts in the field of Bankruptcy Laws and after obtaining information through RTI, made suggestions for plugging the loop holes in the operation of the code. The IBBI instead of reacting positively took a very hostile stand.
  2. The Petitioner filed a PIL WP. No.11059/11061 of 2019 and the same was allowed by the Hon’ble Madras High Court but IBBI refused to consider the same. (judgment & rejoinder).
  3. After the appointment of Mr. Ravi Mital as the Chairperson in 2023 who is very focused on addressing the loop holes and willing to hear many of the suggestions made by the Petitioner were brought in to force but by then the Nation has lost more than Rs. 16 Lakhs of Crores by way of deep Haircuts. (Letter, Affidavit, order).
  4. The Petitioner submits that IBBI, in 2019 introduced in New Regulation 7A mandating that every Insolvency Professional to apply and hold a license known as Authorization For Assignment (AFA) on an Annual basis, with the main objective of ensuring that the fees is paid by members pay fees in time. (regulations 7a,12a -13229).
  5. The Petitioner applied and his application was kept pending for processing and on 16-07-2020 he was informed that the AFA was rejected because of non-payment of fees, because of the errors in their accounting process which fail to record the payment of the fees.
  6. The Respondents in spite of showing the proof initiated DC proceedings for Violation of Regulation 7A ignoring the pleadings and the material evidence submitted namely, Approval of IBBI and the application of deemed provisions 12A (5). Suspending the Petitioner for whole year and imposed a fine of Rs. 10,000 was imposed.
  7. The Petitioner also challenged the Regulation 7A as Voilative of Equality, Manifestly Arbitrary and excessive legislation having no nexus to the objectives of the code by filing a WP.No.13229 of 2020 and the same was dismissed by relying on the Judgment of Hon’ble Mumbai High Court in Sampath Ganesh vs Union of India which has no application to the issues raised in the Petition.
  8. The Petitioner also challenged the orders of the Disciplinary Committee finding him guilty before Hon’ble Madras High Court vide WP.No.4458 of 2021 and an Interim Stay was granted. (Suspension order, 4458 interim stay) it is pertinent to note another member who admitted to violating the Regulation was acquitted.
  9. The Petitioner finding that the Respondents are punishing many of the members by exercising sweeping powers with a malafide intention in a manifestly arbitrary manner only to cover up their mounting failures so as to escape the accountability for the failure of the code to the Nation filed the WP.NO.16650 of 2020 and WP.No.14448 of 2021 challenging the vires of sec 204 of I & B code and Regulation 23A of IBBI Regulations. (Affidavit, Written Submissions).
  10. The Hon’ble Madras High Court dismissed both the Writ Petitions by relying on the ratio settled in WP.No.13229 of 2020 which is in applicable to the issue on hand.
  11. In the meanwhile another member challenged the Constitutional Validity of Regulation 23A before the Hon’ble Division Bench of Bombay High Court vide WP.No.13865 of 2024 in V. Anil Trivedi Vs IBBI. The Hon’ble Division Bench of Bombay relying on the judgement of Hon’ble Madras High Court in a WP.No.13229 of 2020 and WP. No. 16650 of 2020 in Venkata Sivakumar vs Union of India upheld the Constitutional validity of Regulation 23A of IBBI Regulations.

11.1. The order of the Hon’ble Division Bench of Madras High Court in Rev.P.No.35 of 2024
a. The Petitioner filed a Review Petition before the Hon’ble Madras High Court pointing out the infirmities in the ratio laid down in WP.No.13229 of 2020 and the current Writ Petitions which are under challenge.
b. The Hon’ble Division Bench after hearing the Petitioner for 90 minutes orally concurred and were in full agreement with the errors of facts and law raised by the Petitioner but opined that since the judgement of Hon’ble Madras High Court in WP.No.13229 of 2020 is in force the Review Petition cannot be admitted and the appropriate forum for agitating all the issues will be this Hon’ble Apex Court.

  1. The Petitioner submits another complaint was made against him the 2nd Respondent IIIPI dismissed the complaint but without considering the decision of IIIPI found the Petitioner guilty and issued a show cause notice and immediately suspended the Petitioner and later The DC authority removed the Petitioner for a period 3 years the decision of the DC authority was stayed by the Hon’ble Madras High Court in WP.No.12409 of 2024 which establishes the abuse and misuse of Disciplinary Jurisdiction by the 1st Respondent IBBI.

ANOTHER EXAMPLE OF EXERCISE OF JUDICIAL POWER WITHOUT JUSTICE.
a. A Complaint was made against the Petitioner which was taken up by both the Respondents. The 2nd Respondent completed the proceedings within the mandated 45 days and dismissed the complaint. The 1st Respondent, on the other hand after 300 days without even carrying out any investigation, without following the procedure laid down overruling the restraint order of Hon’ble NCLAT, and settled precedents found the Petitioner guilty and issued SCN suspending him immediately on 03-07-2023.

b. The Petitioner filed a Contempt Petition No. 03 of 2023 against the Officials of the 1st Respondent before the Hon’ble NCLAT for willfully ignoring the Restraint Order even after recording the same and a Writ Petition No. 21186 of 2023 challenging the SCN.

c. The 1st Respondent in their rejoinder made false statements before the before the Hon’ble Single Judge which was relied and the Petition was dismissed.

d. The order was challenged before the Hon’ble Division Bench vide WA.218 of 2024 on the grounds of non appreciation of material evidence and misunderstanding of the Provisions of I&B code.

e. The Hon’ble Division Bench was pleased to pass the following directions which was again misinterpreted and willfully disobeyed by the officials of IBBI during the VC hearing which was also
recorded (ENCLOSED)

f.
g.
h.
i.
j.
f. The Petitioner as directed appeared before the DC Authority of the 1st Respondent comprising of a single member who is an Economist without any legal qualification or Judicial experience was assisted by the same officials who found the petitioner guilty at the prima facie stage and also facing contempt proceedings before Hon’ble NCLAT.

g. The DC Authority after hearing the Petitioner who explained in detail the procedure followed which was also agreed by the DC Authority as in accordance with the regulations, as per the guidelines in the BLRC report, achieving the object of maximum realization to the stakeholders and also as per the Judgment of Hon’ble Supreme Court in Vijay Kumar vs Standard Chartered Bank.

h. The DC Authority further mentioned the condition precedent for not getting an Adverse Order is to withdraw the Contempt Petition which is pending against the Officials who are assisting and reserved the matter on 25.01.2024.

i. However on 08.04.2024 passed an order finding the petitioner guilty and imposed three years suspension and published the suspension order on the website and also informed Hindustan Times and Economic Reporters.

j. The order was stayed by Hon’ble Madras High Court in WP 12409 of 2024 and notice to all the officials was issued for filing Counter.

IV. GROUNDS
Ground 1 – Violation of Article 14 Equality Clause
i The Petitioner’s case is that members of Bar Council and other sister Professional bodies all over India need not to practice the license every year whereas a Insolvency Professional to become a member of the 1st and 2nd respondents is admitted only after a Professional qualification like CA, Law, etc.., have experience more than 10 years, qualify the exam and undergo training are made to seek renewal every year which is mainly for the purpose of ensuring the payment of fees. Thus Insolvency Professional who is similar to PHD is being treated like a B.com

Ground 2 – Unreasonable Restriction without any nexus to the objectives of the I&B Code.
i. The main objective of IBC is to revive the sick companies in a time bound manner to protect the value of the assets from erosion and it is the Insolvency Professional who is tasked with achieving this said objective.
ii. The continuous uncertainty therefore creates lot of mental tension in addition to loss of precious time in prosecuting the multiple litigation initiated by the Respondent.
Ground 3 – Scope for malafide exercise of power without Justice creating Tyranny:
i. The PSU Banks in particulars have lent Thousands of Crores to the sick companies the actual data publish shows that the Nation as lost Rs.25 Lakh Crores. As Taxpayers money by the way of haircuts due to pollution with the promoters.
ii. There is a great scope for removing the Resolution Professional working sincerely in conspiracy with the officials of the 1st and 2nd Respondents.
Ground 4 – Manifestly Arbitrary and substantially unreasonable:
i. Sec 204 and 196 of I&B Code empower the 1st and 2nd Respondents to exercise the Disciplinary Jurisdiction of the Twin Tire architecture. A Bare Perusal of the same in the BLRC report will make a common citizen question the rationality.

ii. The Regulation 23A empowers immediate suspension of a member along with SCN as a result Goodwill and Professional standing of the member will be seriously tarnished with irreparable consequences.

iii. The member who was suspended as a result of issuing SCN notice continuous to be in the same assignment till it completion.

iv. The SCN issued will have to be disposed of within 60 days after giving an opportunity of being heard to the member. But because of the immediate suspension the case becomes a Post Decisional Hearing matter and invariably the decision will be up held by covering up the miscarriage of Justice.
Ground 5 Violation of Soul and Spirit of Our Constitution:
i. The Multiplicity of Disciplinary Proceedings was never contemplated in our Constitution also refer to in Sampath Ganesh VS Union of India. XIII — When the 2O13 Act recognizes ICA (Institute of the Chartered Accountants)” as the disciplinary body to regulate the profession of CA and its power to punish erring CA, and then gives power to NFRA to proceed against CA in specified cases as also to punish, it is difficult to hold that very same power can be read in S.140 (5) with NCLT. The Parliament cannot be presumed to have created multiple agencies with same power.

ii. There is no answer to a situation where in 2nd Respondent dismisses the complaint while the 1st Respondent finds the member guilty.
Ground 6 – Absence of fair procedure as envisaged in Article 21:
i. Violation of Article 21: When a complaint is received it is processed at the first level comprising of Junior Officers many of whom are without legal qualification and experience working on a contract basis. Taking decisions impacting the future of the Professionals without following the fair procedure and always in gross violation of natural justice.

ii. The Officers who carry out the investigation / the due process as laid down are the same persons assisting DC Authority (A Single Member Committee) further the presiding Officer most times is a person without legal qualification / experience and that too a single member committee.

iii. The facts narrated will show that the DC Authority always ensures on protecting the Junior Officials and cover their lapses resulting in total miscarriage of Justice.

iv. The final report of the DC Authority is also being prepared by the same Officials who tend to misinterpret, the facts omit the material evidence and the applicable Laws.
Ground 7 – Violation of Article 20 (2) Double Jeopardy.
i. The DC Proceedings are quasi criminal in nature hence Article 20(2) will apply. A fact that he same alleged offence is adjudicated twice is in Violation of Article 20 (2) as per
a) violative of Article 20(2) of the Constitution of India, in as much as it provides for disciplinary proceedings by two agencies; (b) is manifestly arbitrary and prevents access to justice and (c) is illegal for confirming unbridled and excessive powers to the agencies ?
Ground 8 – Malafide Intension of the 1st and 2nd Respondents.
i. The Respondents are entrusted with the main task of ensuring that the objectives of code are achieved. The data published by them shows that Public Sector Banks alone have taken haircuts amounting to more than Rs. 16 Lakh Crores. While the private lenders have recovered 100 percent of claims with interest.

ii. The timelines in practice are 2 to 3 times above the allowed period 90% of the sick companies went into Liquidation realizing just before 10% of the value however the Respondents till date did not publish any white paper.

iii. The Petitioner since 2018 was pointing out several draw backs that are impacting the performance of the code with suggestions namely,
a. Most of the Resolution Professionals who are retired Bank Managers and others having no infrastructure or experience in reviving the companies handling 10 to 20 assignments at a time by quoting lowest fees.
Ground 9 – Abuse of Disciplinary Jurisdiction:
i. To an RTI reply it was confirmed that the Officials from the middle to the top level of the 1st Respondent which is entrusted with making Regulations had no experience in managing / reviving the sick companies.

ii. As a result the above to avoid the accountability for the miserable failure of the I&B Code the 1st Respondent is focusing only on the Disciplinary Jurisdiction awarding dis proportionate punishments and widely publishing the same in the website and media.

PRAYER:
It is therefore most respectfully prayed that this Hon’ble Court may graciously pleased to
i. Admit and allow the present Special Leave Petition by setting aside the Impugned Judgement and final order dated 22-01-2024 passed by this Hon’ble Division Bench of Hon’ble Madras High Court in W.P. 16650 of 2020, W.P. 14448 of 2021 & W.M.P. 24548 of 2020

ii. Pass any other order or further orders as it may deem fit and proper in the circumstances of the case

ADV.(CA) V.VENKATA SIVAKUMAR
Petitioner-in-Person
Drawn on: 20-03-2024
Filed on: 21-03-2024

IN THE SUPREME COURT OF INDIA
(ORDER XVI RULE 4(1) (a)
CIVIL APPELLATE JURISDICTION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CIVIL) No. 2024

IN THE MATTER OF:
Adv. (CA) V. Venkata Sivakumar
……Appellant
VERSUS

Insolvency and Bankruptcy Board of India
And 5 others
…..Respondents
C E R T I F I C A T E
Certified that the civil appeal is confined only to the pleadings before the court whose order is challenged and the other documents relied upon in those proceedings. No additional facts, documents or grounds have been taken therein or relied upon in the Special Leave Petition. It is further certified that the copies of the documents / annexure attached to the Special Leave Petition are necessary to answer the questions of law raised in the petition or to make out grounds urged in the Special Leave Petition for consideration of this Hon’ble Court. This certificate is given on the basis of the instructions given by the Petitioner/ person authorized by the Petitioner whose affidavit is filed in support of the SLP.
Filed by:

Petitioner in Person
Place: New Delhi
Date: 20-03-2024
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CIVIL) No. OF 2024

[Appeal under Section 62 of the Insolvency and Bankruptcy Code, 2016 arising out of the final order dated 20-12-2022 passed by the Hon’ble National Company Law Appellate Tribunal Chennai Bench in Company Appeal (AT) (Ins) No. 269 of 2022]

WITH PRAYER FOR INTERIM RELIEF

IN THE MATTER OF:
Adv. (CA) V. Venkata Sivakumar
……Petitioner
Versus

Insolvency and Bankruptcy Board of India
And 5 others
…..Respondents
AFFIDAVIT
I, V. Venkata Sivakumar, S/o Late VS Gandhi residing at No.10/11, Dr. Subbarayan Nagar Main Road, Near Samiyarmadam, Kodambakkam, Chennai -24, do hereby solemnly affirm and declare as under:

  1. That I am the Petitioner in the above Special Leave Petition and I am fully conversant with the facts and circumstances of the case and hence competent to swear this affidavit.
  2. I have read and understood the contents of the Special Leave Petition at Pages 39 to 84 and Synopsis and List of Dates at Pages B to L and I say that the contents thereof are true and correct to the best of my knowledge and the legal submissions are based on the advice received from my Counsel which I believe to be true.
  3. That, I have read and understood the contents of Interlocutory Applications and that the contents thereof are true and correct to the best of my knowledge.
  4. That the Annexures filed with the Special Leave Petition are true and correct copies of the originals.
    5.That I have not filed any other Special Leave Petition in this Hon’ble Court against the Impugned Judgment and order.

DEPONENT
VERIFICATION
I, the above named deponent do hereby verify that the contents made in Para Nos. 1 to 5 of the above affidavit are true and correct to the best of my knowledge. Nothing material has been concealed there from.

Verified by me on this 21st day of September 2024.

DEPONENT

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