Solicitor General Sh. Tushar Mehta Exposes Multiple Illegalities in the Order Passed by NCLT Bench of Retd. Justice Sushil Kochey
Strictures passed by the NCLAT are of such severity that the former Member may face prosecution under Sections 257 and 258 of the Bharatiya Nyaya Sanhita and may be directed to pay compensation to the wrongly convicted officers and may face removal from the post
Bar Association Demands Withdrawal of Senior Advocate Designation, Permanent Prohibition from Practice Across Maharashtra, and Cancellation of Certificate of Practice Against Sr. Adv. Darius Khambatta — Proofs of Repeated Pattern of Misleading Courts in Contempt Proceedings given.
The National Company Law Appellate Tribunal bench headed by Hon’ble Justice Ashok Bhushan has set aside, with strictures, an unlawful contempt conviction order passed by the NCLT Mumbai Bench-I presided over by retd. Justice Sushil Mahadeorao Kochey and Sh. Prabhat Kumar — after the Solicitor General of India Sh. Tushar Mehta placed before the appellate bench a comprehensive and damning exposition of the multiple illegalities embedded in the order.
Sixteen advocates — namely, Mr. Vijay Kurle, Mr. Ishwarlal Agarwal, Mr. Partho Sarkar, Mr. Abhishek N. Mishra, Ms. Anushka Sonawane, Mr. Devkrishna Bhambri, Mr. Shivam Gupta, Mr. Vikas Pawar, Ms. Nicky Pokar, Ms. Meena Thakur, Ms. Priyanka Sharma, Ms. Sonal Manchekar, Mr. Sagar Ugle, Ms. Nikita Kinjara, and Mr. Jayendra Manchekar — have already approached the Five-Judge Bench by way of a petition seeking initiation of appropriate proceedings, including prosecution and such other consequential action, against Advocate Mr. Darius Khambata
I. The Proceedings Before the NCLT
Jyoti Structures Limited, the Corporate Debtor undergoing resolution under the Insolvency and Bankruptcy Code, 2016, filed Contempt Application No. 41 of 2025 before the NCLT Mumbai Bench-I alleging non-compliance with the Tribunal’s earlier order dated 20.08.2024 directing the lender banks to release rolled-over Bank Guarantee and Letter of Credit limits without fresh appraisal. The contempt application was directed against ICICI Bank Limited, State Bank of India, Bank of India, Canara Bank, Indian Bank, and Union Bank of India.
Sr. Adv. Darius Khambatta appeared for the Applicant Corporate Debtor before the NCLT. Relying substantially upon his submissions, the NCLT Mumbai Bench-I, presided over by retd. Justice Sushil Mahadeorao Kochey (Member — Judicial) and Sh. Prabhat Kumar (Member — Technical), passed an order dated 16.02.2026 holding the respondent banks guilty of wilful disobedience and directing them to release the rolled-over BG limits within one month, failing which their officers would be subject to one day of simple imprisonment in civil prison.
The order suffered from a foundational and fatal illegality that went to the very jurisdiction of the Tribunal to punish for contempt: not a single individual was named as a contemnor. No specific officer of any bank was identified. No individual was named, charged, served, or heard. The sentence of civil imprisonment was directed against an institution — the banks — without identifying the natural person against whom that sentence was to be executed. This is an illegality that the Supreme Court of India had categorically prohibited decades ago in Union of India v. Satish Chandra Sharma, (1980) 2 SCC 144, where it was held that punishment for contempt must be directed against a specifically identified individual and cannot be pronounced against an unnamed or unidentified person. The NCLT bench passed this order in complete disregard of that binding precedent.
II. The Appeal Before the NCLAT — Solicitor General Exposes the Illegalities
Aggrieved by the unlawful order, the lender banks preferred an appeal before the Principal Bench of the National Company Law Appellate Tribunal, New Delhi, which was heard by the bench headed by Hon’ble Justice Ashok Bhushan and Hon’ble Mr. Barun Mitra.
The Solicitor General of India Sh. Tushar Mehta appeared for the appellant lender banks. Sr. Adv. Darius Khambatta appeared for the respondent Corporate Debtor before the NCLAT — and once again advanced arguments in defence of the NCLT order, relying upon positions that had already been overruled and that were therefore no longer good law. The NCLAT rejected those arguments. The Solicitor General, on the basis of binding precedents, exposed the multiple layers of illegality in the NCLT order — including the complete non-observance of the mandatory procedure prescribed by law for contempt proceedings and the absence of any specific charge framed against any identified individual before the sentence of imprisonment was passed.
By order dated 26.05.2026, the NCLAT set aside the NCLT order dated 16.02.2026 in its entirety.
III. The NCLAT’s Principal Findings
The NCLAT recorded the following principal findings, which constitute a categorical indictment of the manner in which the NCLT exercised its contempt jurisdiction:
Finding I — Mandatory Procedure Abandoned: The Adjudicating Authority gave a complete go-by to the procedural requirements mandatorily applicable to contempt proceedings — particularly so when a sentence of one day’s imprisonment had been imposed, rendering the proceedings quasi-criminal in character. The impugned order subjecting the Appellants to contempt and consequential civil imprisonment suffered from fundamental impropriety since punishment arising from contempt is required to be directed against identified individuals who are found to have wilfully and deliberately disobeyed court directions. In the present case, the respondents in the contempt application had not identified specific individuals by name as alleged contemnors, nor had they made express and specific charges of violation of court directions against them. Since the contempt jurisdiction had not been exercised in accordance with the procedure prescribed by law, the impugned order could not be sustained.
Finding II — No Notice, No Charge, No Hearing: The court exercising contempt jurisdiction must serve a formal, personal show-cause notice on the person charged with contempt. That notice must be accompanied by the precise and explicit charges framed against that person so that he knows exactly what he is required to defend. A simple or generic notice is not sufficient. The person charged must be given a fair opportunity to file an affidavit in reply and to present his defence before any final determination is made on whether the purported conduct is contemptuous. None of these requirements were followed in the proceedings before the NCLT.
IV. Legal Consequences for the NCLT Bench
The setting aside of the order with the findings recorded above gives rise to the following legal consequences for retd. Justice Sushil Mahadeorao Kochey and Sh. Prabhat Kumar:
Criminal Liability under the Bharatiya Nyaya Sanhita, 2023: The NCLT Members are prima facie accused of passing an order contrary to law and committing a person to imprisonment without jurisdiction. This constitutes an offence punishable under Sections 257 and 258 of the Bharatiya Nyaya Sanhita, 2023, which provide for punishment of up to seven years’ imprisonment for a judicial officer who passes an order of commitment or trial that he knows to be contrary to law and by which injury is caused to any person.
Liability to Pay Compensation to Bank and its Officers who suffered torture due to of Unlawful Conviction: As laid down in Ramesh Maharaj v. The Attorney General, (1978) 2 WLR 902; Walmik Bobde v. State of Maharashtra, 2001 ALL MR (Cri) 1731; and S. Nambi Narayanan v. Siby Mathews & Ors., (2018) 10 SCC 804 — the State is liable to pay compensation to the victims of an unlawful contempt conviction imposed without framing of specific charges and in violation of the fundamental rights guaranteed under Article 21 of the Constitution. Further, as held in Directions in the Matter of Demolition of Structures, In re, (2025) 5 SCC 1; Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787; and Shiv Sagar Tiwari v. Union of India, (1996) 6 SCC 558 — the State, having paid such compensation, shall be entitled to recover the same from the concerned judicial officers whose unlawful conduct caused the injury. Alternatively, the writ court may, in appropriate cases, directly direct the concerned judges to pay compensation to the victim, as was done in McLeod v. St. Aubyn, [1899] AC 549.
Liability for Civil Contempt: As held in Re : M. P. Divedi (1996) 4 SCC 152 ; New Delhi Municipal Council v. M/s Prominent Hotels Ltd., 2015 SCC OnLine Del 11910; Official Liquidator v. Dayanand, (2008) 10 SCC 1; and Priya Gupta v. Ministry of Health & Family Welfare, (2013) 11 SCC 404 — a judicial officer who passes orders in deliberate disregard of binding precedents of the Supreme Court is himself guilty of civil contempt under Sections 2(b) and 12 of the Contempt of Courts Act, 1971, for undermining the majesty and dignity of the Supreme Court whose binding precedents he has ignored.
Disciplinary Action for Judicial Dishonesty: As held in Smt. Prabha Sharma v. Sunil Goyal & Ors., (2017) 11 SCC 77 and Muzaffar Husain v. State, 2022 SCC OnLine SC 567 — passing orders showing undue favour to one party and corresponding disfavour to another, and the refusal to follow binding precedents of the Supreme Court, constitutes judicial dishonesty warranting disciplinary action against the judicial officer concerned.
Liability of a judicial Officer for Legal Malice in Acting Contrary to Binding Law and Causing Violation of Fundamental Rights
It is a settled principle of law that every judicial officer is bound to know the law, apply it correctly, and ensure that each order passed by him remains consistent with the binding precedents of the Hon’ble Supreme Court. A judicial officer cannot seek shelter under ignorance of law or under the non-citation of binding precedents by counsel. Knowledge of binding law is imputed to every judicial officer as an absolute legal duty — it is not contingent upon argument, reminder, or assistance from the parties before him. A Judge is bound to know the law. He is bound to apply the correct law. He is duty-bound to verify and satisfy himself that no order passed by him contradicts or departs from any binding precedent. Where he fails in this duty and the consequence is the violation of a citizen’s fundamental rights, the law does not permit him to plead ignorance as an answer.
The Hon’ble Supreme Court, in Sama Aruna v. State of Telangana, (2018) 12 SCC 150, and Re: M.P. Dwivedi, (1996) 4 SCC 152, has recognised and affirmed that orders passed in deliberate or wilful disregard of binding law, resulting in the violation of fundamental rights and causing injury to a citizen, attract the doctrine of Legal Malice.
The legal position that emerges from the aforesaid authorities is clear and unambiguous:
A Judge who passes orders in violation of the fundamental rights of a citizen, and thereby causes injury to a party, is guilty of legal malice and is not entitled to take the defence of ignorance of binding precedents of the Supreme Court. Knowledge of binding precedents is imputed to every judicial officer as a matter of law. The absence of actual knowledge is neither a defence nor a mitigating circumstance, and does not extinguish liability arising from such an order.
In State Bank of Travancore V/s. Mathew K.C., (2018) 3 SCC 85, it is ruled as under:-
“15. It is the solemn duty of the court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled.”
In New India Assurance Company Limited vs. Dolly Satish Gandhi & Anr. 2026 INSC 498, it is ruled that;
“ The Court itself has an independent tri-fold duty, to apply correct law even if the counsel does not cite the same, ensure consistency with precedent, and avoid per incuriam decisions.”
In the case of Som Mittal v. Govt. of Karnataka, (2008) 3 SCC 574 it is ruled as under;
“ 12. When this Court renders judgments, it does so with great care and responsibility. The law declared by this Court is binding on all courts. All authorities in the territory of India are required to act in aid of it. Any interpretation of a law or a judgment, by this Court, is a law declared by this Court.
The wider the power, more onerous is the responsibility to ensure that nothing is stated or directed in excess of what is required or relevant for the case, and to ensure that the Court’s orders and decisions do not create any doubt or confusion in regard to a legal position in the minds of any authority or citizen, and also to ensure that they do not conflict with any other decision or existing law. ”
V. The Role of Sr. Adv. Darius Khambatta
The unlawful order of the NCLT was passed substantially on the basis of submissions advanced by Sr. Adv. Darius Khambatta before the Tribunal. When the matter went in appeal, Sr. Adv. Khambatta again appeared before the NCLAT and again advanced arguments in defence of a contempt order that had been obtained without naming any contemnor, without framing any charge, and without following the mandatory procedure — arguments that relied upon positions already overruled and that the NCLAT rejected in their entirety. The Solicitor General of India was required to intervene and place the correct legal position before the appellate bench for the illegality to be exposed and corrected.
Indian Lawyers and Human Rights Activists Association (ILHRAA) and Junior Advocates and Law Students Association of India (JALSAI) Formally Demand Withdrawal of Senior Advocate Designation, Permanent Prohibition from Practice Across Maharashtra, and Cancellation of Certificate of Practice Against Sr. Adv. Darius Khambatta — Document Grossest Professional Misconduct and Systematic Dishonesty Across Multiple Contempt Proceedings
The Indian Lawyers and Human Rights Activists Association (ILHRAA) and the Junior Advocates and Law Students Association of India (JALSAI) have formally placed on record a documented indictment of Sr. Adv. Darius Khambatta that goes well beyond the unlawful contempt conviction obtained before the NCLT Mumbai and subsequently set aside by the NCLAT with strictures. Both organisations have independently catalogued a pattern of professional conduct that they characterise — on the basis of documented instances across multiple proceedings in multiple forums — as the grossest professional misconduct and deliberate dishonesty by a Senior Advocate in the discharge of his duties as an officer of the court.
The documentation placed before the Chief Justice and the Bar Council by ILHRAA and JALSAI establishes the following recurring pattern: Sr. Adv. Darius Khambatta has, across multiple contempt proceedings before courts and tribunals in Maharashtra and before the NCLAT, systematically advanced arguments by placing reliance on judgments that had been expressly overruled or declared per incuriam by larger benches of the Supreme Court — while simultaneously and deliberately withholding from the court the binding precedents of the Supreme Court that were directly on point, that were known to him as a Senior Advocate of long standing, and that were fatal to the contempt applications he was advancing on behalf of his clients. The consequence of this practice, replicated across proceedings and across forums, has been that courts and tribunals have been maintained in a state of artificial and deliberately induced ignorance of the law — and have, in that state of ignorance, passed coercive orders of contempt carrying the threat of imprisonment against parties who would have been fully protected had the correct and complete legal position been honestly placed before the bench.
ILHRAA and JALSAI have submitted that this pattern of conduct satisfies every ingredient of the grossest professional misconduct known to the law governing advocates. It is not referable to error. It is not referable to oversight. It is not referable to a misreading of authorities in good faith. A Senior Advocate of decades of standing, practising at the highest levels of the profession, does not accidentally omit a binding precedent of the Supreme Court in a contempt proceeding. He does not inadvertently cite a judgment that has been expressly overruled by a Constitution Bench. He does not persist in relying upon an overruled authority after its overruling has been brought to his notice on the record of the proceedings — as happened before the Five-Judge Bench of the Bombay High Court, where the overruling of the judgments he was citing was explicitly pointed out to him by Adv. Nilesh Ojha in the course of the hearing, and where he continued regardless. When this practice recurs — across cases, across courts, across forums, always in the context of contempt proceedings where the stakes for the opposing party are liberty itself — it is not explainable as carelessness. It is explainable only as a deliberate professional strategy: the knowing suppression of the law from a court that is being invited to exercise its most coercive jurisdiction against identified or, as in the NCLT matter, entirely unidentified persons.
ILHRAA and JALSAI have further submitted that the consequences of this strategy have fallen not only upon the parties against whom unlawful contempt orders have been obtained, but upon the very courts and judicial officers that have placed blind reliance upon his submissions. The NCLT bench of retd. Justice Sushil Mahadeorao Kochey and Sh. Prabhat Kumar, having relied upon his arguments, passed an order that the NCLAT has set aside with strictures — an order that has exposed those Members to prima facie criminal liability under Sections 257 and 258 of the Bharatiya Nyaya Sanhita, to liability to pay compensation to the victims of an unlawful conviction rendered without naming a contemnor, without framing a charge, and without following the mandatory procedure prescribed by law, and to findings of judicial dishonesty, legal malice, and civil contempt under the binding precedents of the Supreme Court. The bench that trusted him has paid a price that no judicial officer should be required to pay as a consequence of placing reliance upon the submissions of a Senior Advocate who owed it the truth and withheld it.
On the basis of this documented and comprehensive indictment, ILHRAA and JALSAI have formally addressed the Chief Justice of the Bombay High Court and the Bar Council of Maharashtra with the following demands, pressed with urgency:
First — the immediate and unconditional withdrawal of the Senior Advocate designation conferred upon Darius Khambatta. The designation of Senior Advocate is a constitutional recognition of the highest standard of integrity, competence, and candour that an advocate owes to the court. It is granted on the premise that its holder will assist the court honestly in identifying the correct state of the law — a duty that is most absolute and most sacred when the court is being invited to exercise the contempt jurisdiction and a person’s liberty is at stake. An advocate who has made a forensic practice of violating that duty — in precisely those proceedings where it matters most — has falsified the very premise upon which his designation rests. The designation must be withdrawn without delay.
Second — permanent prohibition from appearance and practice in all courts and tribunals across the State of Maharashtra. ILHRAA and JALSAI have submitted that the documented misconduct is not confined to any single court, any single tribunal, or any single proceeding. It is a pattern that has manifested across forums and across years. A prohibition confined to any single court or category of proceeding would be inadequate to the breadth of the misconduct it is intended to address. The prohibition must be co-extensive with the pattern — encompassing every court and every tribunal in Maharashtra — so that no future bench in this State is placed at risk of being misled by an advocate whose history of misleading courts is now a matter of documented public record.
Third — cancellation of the Certificate of Practice. ILHRAA and JALSAI have submitted that where the documented misconduct goes to the integrity of the advocate’s most fundamental relationship with the court — where it consists not of a single lapse or an isolated error but of a habitual, calculated, and recurring practice of keeping courts ignorant of binding law in order to obtain coercive orders against parties — the appropriate institutional response is not suspension, not restriction, and not a warning. It is cancellation. The Certificate of Practice is issued on the solemn premise that its holder will conduct himself with honesty and candour before every court he appears in. Where that premise has been systematically and repeatedly falsified — where the holder of the certificate has demonstrated across multiple proceedings that he regards the duty of candour as subordinate to the objective of obtaining the order his client seeks — the certificate that rests upon that falsified premise cannot stand.
ILHRAA and JALSAI have made clear in their formal representations that these demands are not punitive in isolation and are not motivated by any animus toward any individual. They are institutional and protective — protective of every court in Maharashtra that is entitled to rely upon the honesty of the Senior Advocate appearing before it; protective of every party in every proceeding who faces the coercive jurisdiction of the contempt power and who is entitled to assume that the advocate on the other side will not keep the court ignorant of the law that would have protected him; protective of every junior advocate and law student who looks to the Senior Advocate as a model of the standard to which the profession aspires; and protective of the administration of justice itself, which cannot survive — and does not deserve to survive — if those entrusted with its operation are permitted to exploit it with impunity.
The Chief Justice and the Bar Council are called upon to act. The documentation is before them. The pattern is established. The consequences for the courts that trusted him are on record. The demand of ILHRAA and JALSAI is clear, it is grounded in law, and it admits of no further deferral.
The Duty of Senior Advocates as Laid Down by the Supreme Court in a Catena of Decisions — and How Sr. Adv. Darius Khambatta Has Made a Habit of Breaching Every One of Them
I. The Supreme Court’s Settled Mandate — What Senior Advocates Owe the Court- [ Lal Bahadur Gautam Vs. State (2019) 6 SCC 441, State of Orissa Vs. Nalinikanta Muduli (2004) 7 SCC 19, Kusha Duruka v. State of Odisha, (2024) 4 SCC 432, ; E.S. Reddi Vs. Chief Secretary, Government of A.P. (1987) 3 SCC 258, Heena Nikhil Dharia Vs. Kokilaben Kirtikumar Nayak and Ors. 2016 SCC OnLine Bom 9859, Badhuvan Kunhi v. K.M. Abdulla, MANU/KE/0828/2016;, Hindustan Organic Chemicals Ltd. v. ICI India Ltd., 2017 SCC OnLine Born 74, the law laid down in Yatin Narendra Oza v. Suo Motu High Court of Gujarat, 2026 INSC 470, R. Muthukrishnan v. Registrar General, High Court of Madras, (2019) 16 SCC 407, R.K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106, Court on its own motion v. State and Ors 2009 CRI. L. J. 677, Yatin Narendra Oza Vs High Court of Gujarat, 2021 SCC OnLine SC 1004]
The Supreme Court of India, in a long and consistent line of decisions, has imposed upon advocates — and with particular force upon Senior Advocates, by reason of the elevated designation they carry and the heightened trust the court places in them — a set of non-negotiable duties that go to the very integrity of the adversarial system. These duties, as distilled from the catena of Supreme Court decisions on the subject, mandate the following without exception:
First, an advocate — and most particularly a Senior Advocate — must never withhold from the court a binding precedent that is directly relevant to the matter before it, even if that precedent operates against the interests of his own client. The duty of candour to the court is superior to the duty of advocacy for the client. Where these duties conflict, candour prevails.
Second, an advocate must never cite before a court a judgment that has been overruled, declared per incuriam, or superseded by a larger bench — and must never advance arguments that are contrary to binding precedents of the Supreme Court. This prohibition applies whether the misleading of the court is deliberate or accidental. The standard is objective: a Senior Advocate of long standing is imputed with knowledge of the state of the law, and the defence of inadvertence is not available to him.
Third, where an overruling or a contrary precedent is brought to the advocate’s notice — whether by the court, by opposing counsel, or by any other person — the advocate’s duty to correct his submissions and withdraw the overruled authority becomes immediate and absolute. Persistence in relying upon an overruled judgment after its overruling has been pointed out to him is not a professional lapse. It is professional dishonesty.
These duties are not the creation of judicial sentiment. They are the foundation upon which the adversarial system rests — the premise that every court can rely upon the officers who appear before it to assist it honestly in identifying the law, and that no officer will exploit the court’s trust in him to keep it ignorant of authorities that would have changed the outcome.
That the Hon’ble Supreme Court in R.K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106, R. Muthukrishnan v. Registrar General, High Court of Madras, (2019) 16 SCC 407, Yatin Narendra Oza v. Suo Motu High Court of Gujarat, 2026 INSC 470, and Yatin Narendra Oza v. High Court of Gujarat, 2021 SCC OnLine SC 1004, has repeatedly emphasised that members of the Bar are duty bound to preserve the dignity, authority, and majesty of Courts and that conduct tending to interfere with administration of justice or lower the authority of constitutional courts may warrant serious constitutional, disciplinary, and contempt consequences. The designation of senior counsels was also withdrawn for dishonest conduct like that of Mr. Daurius Khambata.
That the Hon’ble Supreme Court of India in R. Muthukrishnan v. High Court of Madras, (2019) 16 SCC 407, has in the clearest and most unequivocal terms laid down the legal consequences that must visit an advocate who resorts to distorted pleadings, fabricated allegations, to misled the courts. The Hon’ble Court held that an advocate who makes distorted pleadings and engages in corruption and collusion in defaming a Judge commits the most sinister and damaging act that can be done to the entire legal system, and that such a person is “deadwood” who deserves to be chopped off — that is, removed permanently from the noble profession of advocacy by cancellation of his licence to practise and sanad.
It is ruled as under;
“ 27. It is said by Alexander Cockburn that “the weapon of the advocate is the sword of a soldier, not the dagger of the assassin”. It is the ethical duty of lawyers not to expect any favour from a Judge. He must rely on the precedents, read them carefully and avoid corruption and collusion of any kind, not to make false pleadings and avoid twisting of facts. In a profession, everything cannot be said to be fair even in the struggle for survival. The ethical standard is uncompromisable. Honesty, dedication and hard work is the only source towards perfection. An advocate’s conduct is supposed to be exemplary. In case an advocate …. involves himself in misconduct, that is the most sinister and damaging act which can be done to the entire legal system. Such a person is definitely deadwood and deserves to be chopped off.”
In the case of Roma Ahuja Vs The State And Anr, 2026 INSC 336 it is ruled as under;
“8. As disclosure of honest and full facts before the Court is part of the fair conduct on the part of lawyers, respecting the binding precedence of the judgments and conceding its applicability in a case is also a duty in fairness to be discharged by the advocates in conducting their case. They are part of the system of administration of justice and are not expected to breach the rules of the game to argue against settled principles or contrary to well settled law, just for the sake of doing it. Giving up an argument where a point of law is already decided is a professional virtue. It is part of ethics in professional conduct before the Court.
8.1 As the courts are bound by the law of precedent and to follow the law laid down in the binding judgment of the Constitution Bench, the lawyers are also expected to respect the strong-operated precedent emanating from a judgment holding the field unless exceptional grounds exist to distinguish the decision are available. Merely for the purpose of demonstrating the argumentative skill, the Criminal Appeals @ SLP(Crl) No.9971-9972/2025 Page 27 of 29 lawyers ought not to eat up the valuable public time of the court by making the submissions, which are worthless against binding precedent.”
In New India Assurance Company Limited vs. Dolly Satish Gandhi & Anr. 2026 INSC 498, it is ruled as under;
“14. When considering these issues, the roles both the Bar and the Bench must be addressed. Counsel appearing in Court to plead the case of a particular party making all effort possible, while balancing ethics and their duty towards the Court, to secure a victory for their clients. It is this duty towards the Court which requires them to bring to the Court’s notice judgments both that aid their case and also those that do not. It is here that the counsel’s awareness of law and grasp on facts are their greatest assets, enabling them to distinguish judgments that may seemingly be against them and still secure a favourable order. This duty is all the more important in the present day because all the Courts are polyvocal. Tens of orders and judgments are pronounced every day across a range of issues and so, the Court before which they are appearing may not be aware of the latest pronouncement. They must disclose the same to the Court ensuring consistency. …. So, in essence, both the Bar and the Bench are responsible for minimising the problems that arise in the face of inconsistent judicial opinion. They are both constituents of the justice delivery system, and all actions must be guided by a sense of service to the system, further facilitating reduction of pendency.”
II. Sr. Adv. Darius Khambatta — A Documented and Habitual Pattern of Breach
The Bar Association’s complaint against Sr. Adv. Darius Khambatta is not founded upon a single instance of professional misjudgment. It is founded upon a documented, repeated, and habitual pattern of conduct that has persisted across multiple proceedings in multiple courts — a pattern in which every one of the duties enumerated above has been breached, and breached not once but systematically, with the consequence that the courts and tribunals which have placed blind reliance upon his submissions have faced the setting aside of their orders, appellate criticism, and in the present instance, exposure to consequences of the gravest personal and legal severity.
The NCLT episode is the most recent and the most serious instance of this pattern — an unlawful contempt conviction passed against unnamed persons without charge or procedure, obtained on his submissions, defended by him before the NCLAT on arguments that had already been overruled, and ultimately set aside by the NCLAT after the Solicitor General of India was required to intervene and restore the correct legal position. The NCLT bench that placed blind reliance on his submissions now faces the prospect of criminal prosecution under Sections 257 and 258 of the Bharatiya Nyaya Sanhita, liability to pay compensation to the victims of an unlawful conviction, and findings of judicial dishonesty and legal malice under the binding precedents of the Supreme Court.
But the NCLT episode does not stand alone.
III. Daurius Khambata’s Similar Misconduct Before The Five-Judge Bench of the Bombay High Court — Reliance on Overruled Judgments Even After Being Explicitly Told They Were Overruled
The most egregious documented instance of Sr. Adv. Darius Khambatta’s dishonesty before a court is his conduct before the Five-Judge Bench of the Bombay High Court in a contempt matter — where he placed reliance upon Pritam Pal v. High Court of Madhya Pradesh, 1992 (1) SCALE 416 and C.K. Daphtary v. O.P. Gupta, (1971) 1 SCC 626 — both of which had been expressly overruled, declared per incuriam, and rendered entirely without authority by larger benches of the Supreme Court in the cases of Bal Thackeray v. Harish Pimpalkhute, (2005) 1 SCC 254; P.N. Duda v. P. Shiv Shankar, (1988) 3 SCC 167, para 39 Biman Basu v. Kallol Guha Thakurta, (2010) 8 SCC 673, para 23
The overruling of the judgments upon which Sr. Adv. Darius Khambatta was relying was expressly brought to his notice by Adv. Nilesh Ojha in the course of the proceedings before the Five-Judge Bench. The correct position was placed before him. The overruling authorities were identified. He was informed, explicitly and on the record, that the judgments he was citing were no longer good law.
He continued regardless.
He persisted in placing reliance upon overruled judgments before a Five-Judge Bench of the Bombay High Court after being told, in the course of those very proceedings, that those judgments had been overruled. This is not negligence. This is not inadvertence. This is not a misreading of the law. This is the deliberate misleading of a constitutional court by a Senior Advocate who had been told the truth and chose to continue advancing a falsehood. There is no other characterisation of this conduct that is consistent with the facts.
IV. The Pattern — What It Establishes
Taken together — the NCLT contempt conviction obtained on misleading submissions and defended before the NCLAT on overruled arguments; the conduct before the Five-Judge Bench of the Bombay High Court in persisting with overruled judgments after being explicitly corrected; and the multiple other instances documented by the Bar Association across contempt proceedings in various forums — the pattern establishes the following:
Sr. Adv. Darius Khambatta has made the misleading of courts in contempt proceedings a forensic strategy. He withholds binding precedents that are fatal to the contempt applications he advances. He relies upon overruled and per incuriam judgments as though they remain good law. He persists in this practice even after the overruling is brought to his notice on the record. The courts that trust him and rely upon his submissions without independent verification have their orders set aside, face appellate criticism, and in the present instance face criminal liability, compensation liability, and findings of judicial dishonesty.
The Senior Advocate designation exists because the court places an elevated trust in the advocate who holds it. That trust is the foundation of the designation’s value — to the court, to the profession, and to the litigant on the other side who is entitled to assume that the Senior Advocate across from him will not keep the court ignorant of the law. Sr. Adv. Darius Khambatta has systematically exploited that trust to obtain coercive orders of contempt against parties by keeping courts in a state of deliberate ignorance of the binding law that would have protected those parties.
The Bar Association’s demands — withdrawal of Senior Advocate designation, permanent prohibition from practice across Maharashtra, and cancellation of Certificate of Practice — are not disproportionate to this conduct. They are, if anything, the minimum response that the integrity of the profession and the protection of the courts that have been misled require. The Chief Justice and the Bar Council are called upon to act — not as a matter of professional discipline in the abstract, but as a matter of protecting every court in Maharashtra from an officer who has demonstrated, repeatedly and on the record, that he cannot be trusted to tell it the truth.
It is a matter of record that as many as sixteen advocates — namely, Mr. Vijay Kurle, Mr. Ishwarlal Agarwal, Mr. Partho Sarkar, Mr. Abhishek N. Mishra, Ms. Anushka Sonawane, Mr. Devkrishna Bhambri, Mr. Shivam Gupta, Mr. Vikas Pawar, Ms. Nicky Pokar, Ms. Meena Thakur, Ms. Priyanka Sharma, Ms. Sonal Manchekar, Mr. Sagar Ugle, Ms. Nikita Kinjara, and Mr. Jayendra Manchekar — have already approached the Five-Judge Bench by way of a petition seeking initiation of appropriate proceedings, including prosecution and such other consequential action as may be deemed fit, against Senior Advocate Mr. Darius Khambata and others.
The petition specifically asserts the grossest professional misconduct on the part of Senior Advocate Mr. Darius Khambata, alleging that he deliberately misled the Court by suppressing material facts and binding precedents. The petition further seeks imposition of substantial and exemplary costs upon him for his attempt to obtain judicial orders through misrepresentation.
The said matter remains pending and is presently under consideration before the Five-Judge Bench.
