“If one does not come before the Court or Tribunal with clean hands his claim deserves to be rejected”, says NCLAT; imposes a cost of Rs 1 lakh on the Appellant for appearing through counsel personifying to be an advocate

NCLAT

   

National Company Law Appellate Tribunal, New Delhi: The Bench of Rakesh Kumar, J., Judicial Member, and Dr. Ashok Kumar Mishra, Technical Member, while dismissing a company appeal, imposed a cost of Rs 1 lakh on the appellant for not disclosing his status, to avoid court fees and appearing before the Bench through a third party, who pretended to be an advocate.

Factual Background

The Appellant had filed Information Application under Section 19 (1) (a) of the Competition Act, 2002 before the Competition Commission of India (CCI) against 37 different government agencies. The Appellant alleged in the Information Application that Respondent, National Accreditation Board for Testing and Calibration Laboratories (NABL) had formed various exclusive supply agreements in violation of Section 3(4)(b) of the Competition Act, 2002 with the remaining 36 respondents where no other accreditation service other than that of NABL was allowed.

On 24-02-2022, the CCI passed an order under Section 26(2) of the Competition Act, 2002, and was of the view that there was no contravention of the provisions of Section 3 and 4 of the Competition Act. Aggrieved with the order passed, the Appellant filed the Company Appeal under Section 53B against the order given by the CCI. The Company Appeal was taken up for hearing on 01-06-2022.

Observation, Analysis, and Decision

While hearing the Appeal, the Bench suspected the status of the Appellant and thereof directed his counsel to submit a detailed affidavit verifying the status of his client. After the Affidavit was submitted, the Bench observed that the appellant evaded the applicable court by not mentioning before either the CCI or the Bench that he was a proprietor of an accreditation agency.

Further, the Bench observed that not only the Appellant as well as his acting Counsel, Sumit Jain, misled the court as he was neither a lawyer nor a Chartered Accountant, Company Secretary, or Cost Accountant.

At this juncture, the Bench referred to the provisions under Section 35 and Section 53(s) of the Competition Act and was of the view that a party cannot be represented by any third person who is not included in either of the aforesaid statutory provisions. Therefore, the Bench held that Mr. Sumit Jain had not only unauthorisedly represented the Appellant but impersonated himself to be counsel for the Appellant.

Hence, the Bench opined that neither the Appellant was competent, nor the Company Appeal was competent to be taken note of.

Thereby, the Bench dismissed the Company Appeal on the grounds of non-maintainability and said, “To preserve sanctity of the court proceeding and confidence of the public in the system, simply dismissal of this Appeal may not serve the purpose. Further to prevent recurrence of such activity, while dismissing the appeal it is appropriate to impose cost on the appellant.” Hence, imposed a cost of Rs.1 lakh on the appellant.

Further, the Bench directed CCI to remain vigilant while entertaining Information applications.

[Dushyant v. CCI, COMPETITION APPEAL (AT) NO. 27 OF 2022, decided on 29-07-2022]


Advocates who appeared in this case :

Sumit Jain, Advocate, for the Appellant;

Shama Nargis, Dy. Director, Law, CCI, and Krishan Kumar, Nital Pal, Swikritmala Dubey, Arun Kumar, and Prema Priyadarshini, Advocates, for the Respondent.

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