TaxTMI 
TaxTMI 
2019 (3) TMI 1688
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....ss [for short "CIRP"] by Respondent No.2 against Respondent No.3. The Petitioner has also claimed interim stay to these orders. The Petitioner has further challenged the constitutional validity of section 231 of the Insolvency and Bankruptcy Code, 2006 [for short "IB Code"]. 3. The brief facts giving rise to the present petition are as follow : . The Petitioner is a shareholder of Respondent No. 3. MCX sold to Respondent No.2 total 4,42,00,000 shares of MCX-SX under share purchase agreement dated 20th August 2009 for the sale consideration of Rs. 159.12 crore. On the very same day, Respondent No.3 who is not party to the said share purchase agreement, issued separate letter of undertaking in favour of Respondent No.2. As per this letter of undertaking, Respondent No.3 or its appointee and nominee had an obligation to offer to purchase at any time during the agreed period all the shares purchased by Respondent No. 2 under the said share purchase agreement. Respondent No.2 on 3rd August 2012 called upon Respondent No.3 to purchase 2,71,65,000 equity shares in MCX-SX. However, Respondent No.3 raised various disputes and did not purchase the said shares of MCX-SX by paying ....
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....ection 231 of the IB Code, no civil Court shall have jurisdiction in respect of any matter in which the adjudicating authority is empowered by, or under, this IB Code to pass any order. However, in the second part of the said section, no injunction shall be granted by "any Court" or other authority in respect of any action taken or to be taken in pursuance of any order passed by such adjudicating authority under IB Code. Mr. Nankani submitted that the words "any Court" appearing in the second part of section 231 of the IB Code cannot be construed to include High Court or Supreme Court and this Constitutional Court can grant injunction in appropriate cases. Mr. Nankani submitted that unless the said provision is read down to save it from unconstitutionality, the same is violative of basic structure of constitution. Mr. Nankani further submitted that the orders of NCLT and NCLAT are non est and, therefore, this Court, can exercise jurisdiction under Article 226 of the Constitution of India. He further submitted that despite availability of an alternative efficacious remedy, the writ petition under Article 226 of the Constitution of India is maintainable. In support of his submission,....
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....r in exercise of jurisdiction and powers conferred by the Constitution vide Articles 32 and 226 upon the Constitutional Courts. Section 231 of the IB Code reads as follows : "231. Bar of jurisdiction - No civil Court shall have jurisdiction in respect of any matter in which the Adjudicating Authority or the Board is empowered by, or under, this Code to pass any order and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any order passed by such Adjudicating Authority or the Board under this Code." . In our prima facie opinion, the words "any Court" cannot be construed to include High Court or Supreme Court. Hence, the Constitutional Court can grant injunction in appropriate cases. If the words " any Court" is construed to include Constitutional Court, then, the same would be in violation of the basic structure of the Constitution. In this regard, reference can be made to the decision of the Constitutional Bench in L. Chandra Kumar verus Union of India and ors. (1997) 3 SCC 261 and especially observations made in paragraph 99 which reads as follows: "99. In view of the reasoning ....
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...., the Apex Court reiterated that High Court should refrain from entertaining the petition under Article 226 of the Constitution, if effective alternative remedy is availability to aggrieved person. Similar principle is laid down by the Apex Court in Cicily Kallarackal (supra), Satyawati Tondon (supra) and Anil Hoble (supra). . Mr. Nankani, learned senior counsel for the petitioner, submitted that the Hon'ble Supreme Court time and again held that the alternative remedy is not absolute bar in exercise of writ jurisdiction and has laid down various exceptions to the Rule of alternative remedy. The decision relied by him is already referred above. . The Constitutional Bench in Calcutta Discount Co. Ltd. (supra) while allowing the appeal against dismissal of application by the High Court under Article 226 of the Constitution, was pleased to observe as under : "1. This appeal is against an appellate decision of a Bench of the Calcutta High Court by which in reversal of the order made by the trial Judge the Bench rejected the present appellant's application under Article 226 of the Constitution. 6. To confer jurisdiction under this section to issue notice ....
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....a period of 8 years; and where he has reason to believe that an under assessment has resulted from other causes he shall have jurisdiction to start proceedings for re-assessment within 4 years. Both the conditions, (i) the Income-tax Officer having reason to believe that there has been under assessment and (ii) his having reason to believe that such under assessment has resulted from nondisclosure of material facts, must co-exist before the Income-tax Officer has jurisdiction to start proceedings after the expiry of 4 years. The argument that the Court ought not to investigate the existence of one of these conditions, viz., that the Income-tax Officer has reason to believe that under assessment has resulted from non-disclosure of material facts cannot therefore be ,accepted." . In Whirlpool Corporate (supra), it was held that the bar of alternative remedy would not operate at least in 3 contingencies viz.(i) where the writ petition has been filed for enforcement of any of the Fundamental Rights; (ii) where there is violation of the principle of natural justice or (iii) where the order or proceedings are wholly without jurisdiction or the vires of an act is challenged. . A fou....
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.... specific prayer that the said Notification dated 21st January 2006 was ultra vires or otherwise illegal but, as indicated hereinbefore, a specific ground in that behalf had been taken in respect thereof. 13. Even otherwise, in our opinion, the question as towhether the said Notification could have a retrospective effect or retro-active operation being a jurisdictional fact, should have been determined by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India as it is well known that when an order of a statutory authority is questioned on the ground that the same suffers from lack of jurisdiction, alternative remedy may not be a bar. [See: Whirpool Corpn. v. Registrar of Trade Marks and Mumtaz Post Graduate Degree College v. Vice Chancellor.) 14. For the reasons aforementioned, we are of the opinionthat it is a fit case where the High Court should have entertained the writ petition. The impugned order is set aside accordingly and the appeal is allowed. The appellant may be permitted to amend the prayer portion of the writ petition." . The Hon'ble Apex Court in CIT and ors. Versus Chhabil Dass Agarwal (supra) altho....
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....all these cases have dismissed the writ petitions preferred by the appellant/assessee herein challenging the issuance of notice under Section 148 of the Income Tax Act, 1961 and the reasons which were recorded by the Assessing Officer for reopening the assessment. These writ petitions are dismissed by the High Courts as not maintainable. The aforesaid view taken is contrary to the law laid down by this Court in Calcutta Discount Co. Ltd. v. CIT. We, thus, set aside the impugned judgments and remit the cases to the respective High Courts to decide the writ petitions on merits. 3.... 4. We are conscious of the fact that the High Court has referredto the judgment of this Court in CIT v. Chhabil Dass Agarwal. We find that the principle laid down in the said case does not apply to these cases. 5. During the pendency of these appeals, stay of reassessmentwas granted, which shall continue till the disposal of the writ petitions before the High Courts. 6. The appeals are allowed in the aforesaid terms." 9. From the above precedents at least following exceptions can be carved out which warrants exercise of writ jurisdiction, despite there being efficacious alte....
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...., 2018, one page addendum-cum-corrigendum order was issued, which reads as follows : ADDENDUM-CUM-CORRIGENDUM ORDER 1.In the Order delivered on 28.08.2018 in CP 919/I&BC/NCLT/MB/MAH/2017 under section 7 of Insolvency and Bankruptcy Code titled as :- "IL & FS Financial Services Ltd.: Petitioner/Financial Creditor V/s. La-Fin Financial Services Pvt. Ltd.: Respondent/Corporate Debtor" Inadvertently Coram printed as "Hon'ble M. K. Shrawat, Member(Judicial)" Instead of ;- "Hon'ble M. K. Shrawat, Member(Judicial) Hon'ble Bhaskara Pantula Mohan, Member(Judicial)". 2. Said Order placed before the other Respected Member Hon'bleBhaskara Pantula Mohan, who has expressed his agreement with the verdict pronounced. A remark on the last page No.20 of the Order is made under his signature as below:- "I agree and hereby give my consent". 3. Consequently this Addendum-cum-Corrigendum is signed by both theMembers to be made part and parcel of the Order dated 28.08.2018 (supra). Henceforth to be read as amended. Sd/- Sd/- Bhaskara Pantula Mohan M. K. Shrawat Member (Judicial) Member (Judicial) ....
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....ed, the way in which it is to be authenticated the signing and the sealing, all the rules designed to secure certainty about its content and matter - can be cured; but not the hard core, namely the formal intimation of the decision and its contents formally declared in a judicial way in open court. The exact way in which this is done does not matter. In some courts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving notice to the parties and laying the draft on the table for a given number of days for inspection. 11. An important point therefore arises. It is evident thatthe decision which is so pronounced or intimated must be a declaration of the mind of the court as it is at the time of pronouncement. We lay no stress on the mode or manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open court. But, however, it is done it must be an expression of the mind of the court at the time of delivery. We say this because that is the first judicial act touching the judgment which the court performs after the hearing. Everything else....
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.... ..... It is only part of a process of reaching a finalconclusion; also there is no formal public declaration of the Judges' mind in open court and consequently there is no "judgment' which can be acted upon. 16. Our conclusion is that the judgment which Kidwai, J.purported to deliver on 5th January, 1953, was not a valid judgment because the other member of the Bench died before it could be delivered." This judgment is followed by Hon'ble Shri Justice Vazifdar (Bombay High Court) in the matter of Shri Mishrimal Jethmal Oswal versus Municipal Council of Lonavala and ors. (Order dated 20th December, 2005 passed in PIL No.10 of 2005) wherein it was held that the proposition of law laid down in case of Surendra Singh (supra) applies equally to civil cases. 11. Further Chapter XI Rule 1(i) of the Appellate Side Rules, 1960, is also relevant in this regard which reads as follows : '1. When judgment to be taken as ready. - (i) Where Judgment has been reserved in a case heard by a Division or Special Bench consisting of two or more Judges, and all of them are not available for sitting together at one place, such judgment may be pronounced by any of ....
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....onstitution so as to prevent miscarriage of justice and/or to correct and/or to meet out justice. 13. Prima facie we find merit in the contention of the petitioner that winding up petition filed by the respondent only on 21st October, 2016 was time barred as it was filed after more than 3 years from the date of cause of action as claimed by the respondent No.2 in a suit filed earlier. We, however, prima facie find that such winding-up petition which itself was time barred and hence, non-est will not revive merely because it is transferred to the adjudicating authority. In this regard, reference can be made to the recent decision of the Apex Court in B. K. Educational Services Private Limited versus Parag Gupta and Associates AIR 2018 SC 5601. The Apex Court in Paragraphs 23 and 27 held as follows : "23. ....It is thus clear that the expression "default" bears the same meaning in Sections 7 and 8 of the Code, making it clear that the corporate insolvency resolution process against a corporate debtor can only be initiated either by a financial or operational creditor in relation to debts which have not become time-barred. 27. It is thus clear that since the Limit....