Justice Rakesh Kumar’s resignation from NCLAT may lead to some delays in competition cases, but situation will be remedied soon, say lawyers

NCLAT judicial member Rakesh Kumar has resigned

Experts have noted that while the precipitate resignation of Rakesh Kumar, a former judge of the Andhra Pradesh High Court, from the National Company Law Appellate Tribunal (NCLAT) may cause short-term delays in disposal of antitrust cases, the appellate tribunal will not be significantly affected.

Udayan Jain, a lawyer who regularly appears before the NCLAT, said, “It is likely that some final hearing matters may face delays on account of the workload being shared by existing benches but we should soon tide over that hurdle."

The Supreme Court was informed on October 30 that Kumar, a judicial member of the NCLAT, had tendered his resignation after the apex court initiated contempt proceedings against technical member Alok Srivastava and him. The apex court had found that Kumar and Srivastava had defied its order and passed a judgment despite being asked not to do so. While Srivastava tendered an unconditional apology to the Supreme Court, Kumar chose to resign.

Competition cases were heard by a separate tribunal called the Competition Appellate Tribunal (COMPAT) up to 2017, when COMPAT was merged into NCLAT. As a result, NCLAT now hears cases pertaining to the Insolvency and Bankruptcy Code (IBC), 2016, the Companies Act, 2013, and the Competition Act, 2002.

NCLAT benches usually comprise two persons, a judicial member and a technical member. The judicial member is usually a retired judge, while the technical member is usually a retired bureaucrat who has worked with the finance or law ministry.

Notably, Kumar’s bench was hearing many old competition law cases, some of which date back to 2017 and 2018. The bench was also hearing some cases that were transferred from COMPAT to NCLAT during the transition. Kumar’s bench in NCLAT was dubbed as the competition law bench as appeals against CCI orders would automatically go before this bench.

While Aslam Ahmed, a partner at leading law firm Singhania and Co, said Kumar’s resignation would increase the time for disposal of cases till the time the new vacancy caused by his resignation is filled, a section of lawyers felt that this might not be the situation as pending cases could be allotted to another bench.

Abhinay Sharma, managing partner at ASL Partners, a Delhi-based law firm, said, “Usually, the part-heard matters are supposed to be heard by a bench that has been hearing those matters. However, matters that are ripe for final hearing but are yet to be taken up for hearing may get heard by another bench. As such, the matters will not be stuck for long.”

Many lawyers have opined that they have complete faith NCLAT’s chairperson, Justice (retd) Ashok Bhushan, to remedy this situation at the earliest.

“The chairperson will take swift action to reassign the roster of cases and manage the affairs of NCLAT adequately. Notwithstanding the resignation of the judicial member, it is hoped that the pendency will be managed well, although there may be a few hiccups,” said Suvigya Awasthy, partner at PSL Advocates & Solicitors

Jain noted that Bhushan has already moved swiftly by allocating cases from Kumar’s court to another bench, adding, “I hope the government would also act promptly and appoint a judicial member to take over the load from existing benches.”