TaxTMI 
TaxTMI 
2021 (3) TMI 126
X X X X Extracts X X X X
X X X X Extracts X X X X
....jee, the learned advocate had appeared on behalf of the petitioner to move it on August 6, 2020. She had demonstrated proof of service, submitted that an earlier similar petition was pending, which would be withdrawn at first opportunity and prayed for interim order. Her submission regarding withdrawal was not recorded but there is recollection of such submission having had been made. The court had directed service of copy of order dated October 6, 2020 since State Bank went unrepresented. Today Mr. Rai, the learned advocate appears on behalf of the bank. 3. Ms. Banerjee submits, her client's challenge to the two impugned orders is that the Tribunal did not have jurisdiction to make it. By the impugned order dated August 19, 2019 the T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....x ARC P. Ltd. [2019] 8 Comp Cas-OL 581 (SC) respectively, the following basics undoubtedly come to the fore : (a) that the Code is a beneficial legislation intended to put the corporate debtor back on its feet and is not a mere money recovery legislation ; (b) that CIRP is not intended to be adversarial to the corporate debtor but is aimed at protecting the interests of the corporate debtor ; (c) that intention of the Code is not to give a new lease of life to debts which are time-barred ; (d) that the period of limitation for an application seeking initiation of CIRP under section 7 of the Code is governed by article 137 of the Limitation Act and is, therefore, three years from the date when right to apply accrues ; (e) that the trigger fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Rai submits, statutory right of appeal is available to the petitioner. That should not be allowed to be bypassed. However, he would first proceed to demonstrate that the Tribunal had jurisdiction and at best it can be said that it came to a wrong decision, but on appeal. 7. He relies on the judgment of Supreme Court in Ittyavira Mathai v. Varkey Varkey reported in AIR 1964 SC 907. A passage from paragraph 8 is extracted and set out below (page 910) : "8. If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well-settled that a court having jurisdiction over the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w went to jurisdiction or whether it was within jurisdiction may still be relevant to best whether a statutory alternative remedy should be allowed to be bypassed or not . . . Therefore in so far as the question of exercise of the power conferred by article 226, despite the availability of a statutory alternative remedy, is concerned, Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 WLR 163 (HL) cannot be relied upon. The distinction between the lack of jurisdiction and the wrongful exercise of the available jurisdiction, should be certainly be taken into account by High Courts, when article 226 is sought to be invoked bypassing a statutory alternative remedy provided by a special statute." 9. He then relies on Deep Industries ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ore the Tribunal, is undisputed. As much was said in Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries P. Ltd. [2020] 222 Comp Cas 115 (SC). Court notices such judgment was made on appeal from an appeal under section 62 of the Code (that is on a statutory appeal to the Supreme Court as provided in the Code). Nevertheless, said court in the judgment said, inter alia, intention of the Code (2016) is not to give a new lease of life to debts, which are time-barred, period of limitation for an application under section 7 of the Code is governed by article 137 in the Limitation Act, that the right to sue accrues on the date when default occurs and if the default had occurred over three years prior to the date of filing of the applicati....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 14. The court is convinced that the mandate of the Limitation Act is for dismissal of, inter alia, an application such as the bank's, on having been brought more than three years after right to sue accrued. The Tribunal, on the facts, lacked jurisdiction to admit it. Therefore, interference is warranted. Here, such interference cannot be prevented by contention of Mr. Rai on reliance of Deep Industries Ltd. v. Oil and Natural Gas Corporation Ltd. [2019] SCC Online SC 1602. Legislative intent regarding amendment to section 115 in Code of Civil Procedure, 1908 had been expressed by the observations in paragraph 25, extracted above. There has been no constitutional amendment in respect of article 227. Furthermore, even if the legislative ....