A copy of the report is submitted by the Registrar General in a sealed cover in pursuance of the orders dated 29.11.2011 and 1.12.2011. The sealed cover is directed to be opened by the Shirastedar of the Court in the Court today. During the hearing of the application, the said report is taken into account. It appears that under the covering letter dated 18.9.2011, the Registrar General had forwarded four lists described as,
(a) List of shortlisted candidates for senior standing counsel/senior arguing counsels.
(b) List of shortlisted candidates for additional standing counsel.
(c) List of shortlisted candidates for panel advocate/counsels.
(d) List of shortlisted candidates for drafting counsel/counsels.
1.1 The first list contains names of 5 advocates, the second list contains names of 14 advocates, the third list contains names of 13 advocates and the fourth list contains names of 9 advocates.
2. In the report, the Registrar General has also observed that:-
"5. After careful scrutiny and due deliberations, the committee recommends as under:-
- While going through the scheme, it is found that following counsels are contemplated to be included into the different panels:
a) Panel of Senior Standing Counsel
b) Panel of Additional Standing Counsel
c) Advocate on record in the Supreme Court of India
d) Panel Advocate
e) Drafting Counsel/Additional Drafting Counsel.
f) Special Arguing Counsel
- However, in so far as eligibility of counsel is concerned, the provision is made in Clause VII of the scheme.
- It is observed that except the designations of Senior Arguing Counsels (Senior Standing Counsels), Additional Standing Counsels, Panel Counsels (Panel Advocates) and Drafting Counsels, there is no correlation between other Panels, contemplated in Clause III & VII and therefore the committee has decided to take into consideration the designations contemplated in Clause III, who can be correlated with Clause VII with their qualifications. Such clause is quoted hereunder for ready reference.
i. The advocate should be registered with the Board Counsel of Gujarat and should be in active practice in Gujarat for the period as noted below against the position.
[A] Senior Standing Counsel Not less than 15 years [B] Standing Counsel Not less than 10 years [C] Addl.
Standing Counsel Not less than 7 years [D] Panel Counsel Not less than 5 years [E] Drafting Counsel Not less than 3 years [F] Counsels for title search Not less than 3 years ii. The applicants would be required to furnish details of their income in the last two years.
iii. The applicants would require to furnish recommendations of two practicing advocates having at least 15 years of practice.
iv. The applicants should furnish the areas in which they have been practicing and the courts they are attending.
- As can be seen from Clause III of the Scheme, the only designations which can be correlated with their qualifications in Clause VII, are as under:
1. Senior Standing Counsels (Senior Arguing Counsels)
2. Additional Standing Counsels
3. Panel Advocate (Panel Counsels)
4. Drafting Counsels And therefore the Committee has deemed it appropriate to deal with the above categories only.
- It can also be seen that the only guidelines which can assist the Committee for short listing the proposed panelist as directed by Hon'ble Court are those contained in Clause VII of the Scheme and therefore the Committee has deemed it appropriate to take into considering such guidelines under different panels as annexed herewith as ANNEXURE "A" to this report, which also includes the applicants who have applied for multiple panels.
- It is however respectfully submitted that in absence of any further guidelines in the scheme, the official liquidator may seek any further directions from the Hon'ble Court as to how a further short listing, if necessary, be done by the Committee and the Committee shall comply with any directions in this regard that may be issued by the Hon'ble Court."
2.1 It appears that it was on the basis of the said remarks contained in para-5 of the report that the above referred lists were prepared by the Registrar General.
3. Mr.
Chaturvedi, the Official Liquidator, has submitted that after the Registrar General's report was received (in sealed cover), it was placed before the Company Court (Hon'ble Mr. Justice A.S.Dave) and subsequently, the issue was discussed with Hon'ble the Chief Justice.
3.1 The OL has also submitted that certain other names of other advocates were also taken into consideration at the relevant time by the learned Company Court during the discussion which ensued with the Hon'ble the Chief Justice at the relevant point of time and the response from the said advocates was also invited and considered by the learned Company Court during the said discussion.
4. In view of the said submission, this Court called for details in response to which a list containing names of 6 learned advocates, has been made available to this Court. The said list is received and considered. However, on perusal of the record, it is noticed that the details regarding the said advocates who appear to have given their consent, are not available on record.
At this stage, it is necessary and relevant to note that the OL has claimed that in pursuance of the earlier orders, the OL had submitted draft scheme for the sanction by the Court. The OL has further submitted that after considering the said draft scheme, the learned Company Court [Coram: Hon'ble Mr. Justice Jayant Patel] has passed an order dated 25.8.2009 wherein the Court, in para-3 to 7 of the order, has observed that:-
"3. Thereafter, this Court, in its order dated 9.7.2009 in Company Application No.424 of 2008 at paragraph 8, observed as under:-
"8. However, before parting with, it deserves to be recorded that normally when any professional is engaged, may be a lawyer or a Chartered Accountant or a Valuer or any other professional, as the case may be, the OL may be required to pre-determine the fees before assigning the work so that at a later stage, there may not be dispute on the aspects of quantum of fees. If the professional has accepted the brief having known that he is to be paid a particular amount towards fees, it may not generate the feeling to the professional that he is not paid the amount for the work he has discharged. Therefore, the OL shall examine the matter in light of the observations and while preparing the schedule of fees for the respective professionals, the OL may take into consideration the fees, if any, prescribed by the Central Government, the Institution concerned, or any other statutory bodies, who normally engage such professionals. Thereafter, the OL shall also examine his record, wherein the quantum of the fees to similar professionals or such professionals have been so sanctioned by this Court. It also deserves to be recorded that normally the panel should be prepared for acceptance of the work at a pre-determined fees, excluding the service tax, if any, and such panel should be revised at least at the interval of every three years, so as to make room for new entrants of the profession as well as to have a better and wider choice. The OL shall also, if possible, consider the details available of the practice followed by the office of the OL or by other High Courts in other States. The OL shall examine the aforesaid aspects and shall come out with appropriate report within four weeks from today."
4. It appears that thereafter, the OL has filed reports for preparation of the scheme for fixing of fees of various professionals like Valuers, Chartered Accountants, Advocates, and other professionals, who may be required to be engaged by the OL from time to time in furtherance to discharge of his duties in liquidation proceedings under the supervision of this Court.
5. The present report is one of such reports for approval of the scheme for engagement of Advocates by the OL. After the report was submitted, the matter was considered by the Court and the OL had put up certain suggestions for making amendments in the scheme, so as to effectively ensure that the Counsel/Advocate, who is engaged, sufficiently provides work assigned to him/her by the OL. Thereafter, ultimately vide report dated 24.8.2009, the OL has submitted the final scheme seeking approval of this Court.
6. Perusal of the scheme shows that the modalities for engagement and preparation of the panel are, in any case, subject to the approval of this Court and, therefore, the same can be permitted. The schedule of fees of the Advocates as suggested, keeping in view the quantum of work and with a view to see that the Court functioning also becomes smooth, can be permitted, save and except retainership for advocate on record for Supreme Court, since the same is not required, keeping in view the number of matters being filed or pending. Hence, not sanctioned for the same. The OL may file separate report for approval of the engagement of any advocate in the Supreme Court as and when such litigation is filed against the OL or is to be filed by the OL. However, it is observed that at that time, the normal fees would be at par with the fees fixed by the Central Government for such advocate/counsel, as the case may be, for Supreme Court matters.
7. Further, in Clause IX after (A) and (B), there will be following substitutions of the terms of engagement than the prescribed in the draft scheme as under:-
(1) The aforesaid additional professional fees shall be payable if the number of disposal of the cases during the month for which the fee is claimed, in any case, should not be less than 50% in a month for additional professional fees claimed. To say in other words, if the Counsel/Advocate has appeared on any day in the cases, more than five cases, where effective hearing has taken place, he/she would be entitled to additional professional fees only if during that month the number of disposal of the cases, which were assigned to him/her exceeds half number of the working days of that month and not otherwise.
(2) The drafting Counsel/additional drafting Counsel will be required to draft at least thrice the number of working days in a month. To say in other words, the drafting Counsel will have to undertake the work of drafting of at least three drafting on every working day or total drafting in a month will have to be three times the working days in such a month."
5. This Court has been given to understand that the panel which was last approved by the Court was as per the order dated 9.5.2007 passed in OLR No.87 of 2007. It is also submitted by the OL that the tenure of the panel fixed by the said order was for 2 years. Therefore, according to the OL, the tenure came to an end w.e.f. May/June 2009. However, at the relevant time, any other report for extension / renewal of the period for reconstituting the panel was not filed by the office of OL and it is now by present order, the OL has requested the Court to pass appropriate orders permitting the OL to constitute the panel of advocate.
Thereafter, the OL has now taken out present report dated 31.3.2011 which is registered as OLR No.43 of 2011 wherein the OL has requested for directions to prepare the panel containing names of the advocates in accordance with the scheme approved (with modification) by the Court vide order dated 25.8.2009 passed in OLR No.93 of 2009.
6. In present report dated 31.3.2011, the OL has stated, inter alia, that :-
"2. The approved scheme for engagement of advocates provides for a mechanism for inviting applications from the eligible advocates for their empanelment and selection process by a selection committee to be constituted for the purpose as per the approved scheme for engagement of advocates. Accordingly, a selection committee was constituted and applications from interested advocates were invited. The so received applications were placed before the selection committee constituted under aforesaid order dated 25.8.2009. After scrutiny of the applications received, the selection committee has shortlisted the eligible advocates to be placed in the following four categories.:-
1. Senior Standing Counsels (Senior Arguing Counsels)
2. Additional Standing Counsels.
3. Panel Advocates (Panel Counsels)
4. Drafting Counsels.
The list of shortlisted advocates to be placed in the aforesaid four panels and the report dated 17.3.2011 of the selection committee together with letter dated 18.3.2011 of Shri G.R.Udhwani, I/c. Registrar General, Chairman of the Selection Committee, is submitted with this report for consideration of this Hon'ble High Court.
3. In this connection, it is respectfully submitted that looking to the workload, no. of companies in liquidation and proceedings before this Hon'ble Court and other courts, it seems that the no. of advocates to be placed in the following four panels to assist the Official Liquidator would be required as under:-
1. Senior Standing Counsels (Senior Arguing Counsels) 2 Advocates
2. Additional Standing Counsels 2 Advocates
3. Panel Advocates (Panel Counsels) 4 Advocates
4. Drafting Counsels 3 Advocates The aforesaid facts, circumstances and developments are submitted before this Hon'ble High Court for consideration."
7. In background of the aforesaid facts, the OL has prayed by present report that:-
"4. This Hon'ble High Court may be pleased to permit the Official Liquidator to constitute aforesaid four panels of advocates by placing such advocates out of the list of shortlisted advocates as may be considered appropriate by this Hon'ble High Court to assist the Official Liquidator on the terms and conditions as per the scheme for engagement of advocates approved by this Hon'ble High Court vide orders dated 25.8.2009 passed in Official Liquidator's Report no.93 of 2009."
7.1 In support of the said prayer, the OL has stated, inter alia, that:-
"2. The approved scheme for engagement of advocates provides for a mechanism for inviting applications from the eligible advocates for their empanelment and selection process by a selection committee to be constituted for the purpose as per the approved scheme for engagement of advocates. Accordingly, a selection committee was constituted and applications from interested advocates were invited. The so received applications were placed before the selection committee constituted under aforesaid order dated 25.8.2009. After scrutiny of the applications received, the selection committee has shortlisted the eligible advocates to be placed in the following four categories,:-
1. Senior Standing Counsels (Senior Arguing Counsels)
2. Additional Standing Counsels.
3. Panel Advocates (Panel Counsels)
4. Drafting Counsels The list of shortlisted advocates to be placed in the aforesaid four panels and the report dated 17.3.2011 of the selection committee together with letter dated 18.3.2011 of Shri G.R.Udhwani, I/c. Registrar General, Chairman of the Selection Committee, is submitted with this report for consideration of this Hon'ble High Court.
3. In this connection, it is respectfully submitted that looking to the workload, no. of companies in liquidation and proceedings before this Hon'ble Court and other courts, it seems that the no. of advocates to be placed in the following four panels to assist the Official Liquidator would be required as under:-
1. Senior Standing Counsels (Senior Arguing Counsels) 2 Advocates.
2. Additional Standing Counsels 2 Advocates.
3. Panel Advocates (Panel Counsels) 4 Advocates.
aforesaid facts, circumstances and developments are submitted before this Hon'ble High Court for consideration."
7.2 The OL has subsequently, filed another report dated 16.2.2012. In the said report, the OL has claimed that under order dated 9.5.2007 passed in OLR No.87 of 2007, the Court has permitted the OL to prepare a panel containing names of advocates by empaneling 5 advocates whose names were mentioned in the order and are reproduced by the OL in para-4 of the report dated 16.2.2012. The Court also fixed the professional fees to be paid to the advocates so empaneled in the said report dated 16.2.2012. The OL has also claimed that after the above mentioned order dated 9.5.2007 permitting the OL to prepare the panel containing names of 5 advocates, one of the empaneled advocates i.e. Mr. Mrugesh Jani has tendered resignation. According to the oral submission of the OL, at the time of hearing, the Court is also informed that subsequently, another advocate who was empaneled under order dated 9.5.2007 i.e. Nitin Mehta has not been appearing in the matters on behalf of OL. In response to the query, OL submitted that he has not informed this aspect to the Court and has not requested the Court to issue appropriate directions to take necessary steps in this regard. It has also been given to understand by OL that without seeking Court's permission, the office of OL has, on its own, stop making payment of professional fees to the learned advocate Mr. Nitin Mehta as he has not appeared on behalf of OL and has also not tendered resignation. This is one more instance wherein the Court has noticed that since long time, the OL has started taking actions in the matter without taking permission of the Court or without seeking necessary and appropriate directions from the Court. Thus, according to the OL, as of now, there are names of only 3 advocates in the panel maintained by the OL and that therefore also, need to revise the panel and constitute the complete panel as per the scheme approved under order dated 25.8.2009 has arisen.
8. According to the submission of OL, the life/tenure of the panel selected/confirmed by the Court has come to an end w.e.f. May/June 2009.
However, for want of any report from the office of OL, any orders either constituting fresh panel or extending the period of existing panel or reviewing or revising the existing panel have not been passed and therefore, OL has taken out present report.
The OL also made reference of the report made by the Registrar of Companies and the discussion on that count at the relevant time by the learned Company Court with the Hon'ble the Chief Justice.
8.1 It is informed to this Court by the OL that besides the names in the list prepared by the Registrar General, on the basis of the decision of the Selection Committee constituted in accordance with the Scheme approved with modification by the Court vide order dated 25.8.2009 passed in OLR No.93 of 2009, the Hon'ble Single Judge taking up the company matters and the Hon'ble the Chief Justice, after certain deliberations and having inquired about the willingness of other advocates, have drawn a list of advocates who may be empaneled in the panel to be constituted in view of OL's request in present report for the period mentioned in the Rules. The list so drawn has been made available to this Court. Since the relevant details, such as total number of years of practice, etc. of the said advocates are not available on record or along with the said list, it is considered appropriate to forward the above mentioned list in a closed cover to the Registrar General, who may call for the similar details (as were called for from other learned Advocates) of the advocates in the above mentioned list and the said compilation may be placed before the Selection Committee in accordance with the Scheme approved with modification by the Court vide order dated 25.8.2009 passed in OLR No.93 of 2009 and then, the suggestion and decision of the Selection Committee may be placed on record for appropriate orders.
The said list is placed in a closed cover and it is handed over to the Court Master (Shirastedar) to personally place it in the hands of the Registrar General along with a copy of this order.
8.2 In furtherance of the above directions, the OL is also directed to undertake the required/prescribed procedure to invite the response from the advocates for empaneling for representing the office of OL before different Tribunals, Courts and other fora e.g. DRT, Civil Court, Labour Court, Railway Claims Tribunal and such other Tribunals/Courts.
8.3 For such purposes, the OL shall follow the procedure prescribed under the scheme and call for the names of the advocates interested for empanelment and place the details before the constituted committee under the Scheme and thereafter place the suggestions and recommendations of the committee before the Court for further orders.
With the aforesaid observations and directions, present Official Liquidator Report No.43 of 2011 stands disposed of.
(K.M.Thaker, J.) kdc Top