TaxTMI 
TaxTMI 
2022 (6) TMI 926
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....r Inbaraj and the Deputy Registrar, National Company Law Tribunal, Chennai Bench] filed under Article 227 of the Constitution as not maintainable, followed the following judgments:- (i) (2020) 13 Supreme Court Cases 308 [Embassy Property Developments Private Limited Vs. State of Karnataka and others] wherein the Hon'ble Supreme Court held as follows: "... 10. In the backdrop of the facts narrated and in the light of the rival contentions extracted above, the first question that arises for consideration is as to whether the High Court ought to interfere, under Articles 226/227 of the Constitution, with an order [Vasudevan v. State of Karnataka] passed by NCLT in a proceeding under the IBC, 2016, despite the availability of a statutory alternative remedy of appeal to NCLAT. 11. It is beyond any pale of doubt that the IBC, 2016 is a complete code in itself. As observed by this Court in Innoventive Industries Ltd. v. ICICI Bank [Innoventive Industries Ltd. v. ICICI Bank, (2018) 1 SCC 407 : (2018) 1 SCC (Civ) 356 : AIR 2017 SC 4084] it is an exhaustive code on the subject-matter of insolvency in relation to corporate entities and others. It is also true....
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....r powers in excess of their statutory limits. But in view of the use of the expression "any person" in Article 226, courts recognised that the jurisdiction of the High Court extended even over private individuals, provided the nature of the duties performed by such private individuals, are public in nature. Therefore, the remedies provided under Article 226 are public law remedies, which stand in contrast to the remedies available in private law. As observed by this Court in Nilabati Behera v. State of Orissa [Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 : 1993 SCC (Cri.) 527] public law proceedings serve a different purpose than private law proceedings. 15. One of the well-recognised exceptions to the self-imposed restraint of the High Courts, in cases where a statutory alternative remedy of appeal is available, is the lack of jurisdiction on the part of the statutory/quasi-judicial authority, against whose order a judicial review is sought. Traditionally, English courts maintained a distinction between cases where a statutory/quasi-judicial authority exercised a jurisdiction not vested in it in law and cases where there was a wrongful exercise of the available ju....
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....istinction was gone with Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)], but another was born with Racal, In re [Racal Communications Ltd., In re, 1981 AC 374 : (1980) 3 WLR 181 (HL)]. This could be seen from the after-effects of Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)]. [Anisminic, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL) had its own quota of problems. Prof. Wade, as pointed out in R. v. Lord President of the Privy Council, ex p Page, 1993 AC 682 : (1992) 3 WLR 1112 (HL), seems to have opined that the true effect of Anisminic was still in doubt. People like Sir John Laws, quoted by Prof. Paul Craig, and which was extracted in the decision in R. (Privacy International) v. Investigatory Powers Tribunal, 2019 UKSC 22 : (2019) 2 WLR 1219, seems to have opined that once the distinction between jurisdictional and non-jurisdictional errors was discarded, there was no longer any need for the ultra vires principle and that ultra vires is, in truth, a fig leaf which has enabled the courts to intervene in decisions without an assertion of judicial power which too nakedly confr....
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....IFFCO Ltd. v. Bhadra Products [IFFCO Ltd. v. Bhadra Products, (2018) 2 SCC 534 : (2018) 2 SCC (Civ) 208], quite independent of Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)] and its followers. 19. Though the decision in Official Trustee [Official Trustee v. Sachindra Nath Chatterjee, (1969) 3 SCR 92 : AIR 1969 SC 823] preceded Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)] and can proudly be claimed as the Indian precursor to an English legal landmark, several subsequent decisions of this Court considered Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)] alone to have provided the breakthrough. In Mafatlal Industries Ltd. v. Union of India [Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536], Paripoornan, J. provided the list of Indian cases which cited Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)] with approval. They are: (1) Union of India v. Tarachand Gupta & Bros. [Union of India v. Tarachand Gupta & Bros., (1971) 1 SCC 486], ....
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.... there exists such a distinction between (i) cases where the jurisdiction of a superior court is questioned on the basis of ouster clauses and (ii) cases where the exercise of jurisdiction by a superior court is questioned on the ground of availability of alternative remedy, was recognised even in Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)], when Lord Reid referred to the decision in Smith v. East Elloe Rural District Council [Smith v. East Elloe Rural District Council, 1956 AC 736 : (1956) 2 WLR 888 (HL)] as posing some difficulty. As a result, the Court of Appeal held in R. v. Secy. of State for the Environment, ex p Ostler [R. v. Secy. of State for the Environment, ex p Ostler, 1977 QB 122 : (1976) 3 WLR 288 (CA)] that the availability of a statutory right to challenge within a specified time-limit, among other points, provided a sufficient basis for distinguishing Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)]. This was taken note of by the UK Supreme Court in Regina (Privacy International) [R. (Privacy International) v. Investigatory Powers Tribunal, 2019 UKSC 22 ....
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....te." (ii) In an unreported judgment of the Division Bench of the Kerala High Court dated 09.09.2020 made in W.A. No. 1083 of 2020 [Sulochana Gupta Vs. RBG Enterprises Private Limited] it has been held as follows: "... 48. Issues raised for consideration in this appeal are:- 1. On the facts and circumstances of the case, when an order of the NCLT is challenged, writ petition has to be filed under Article 226 or 227 of the Constitution of India. 2. Whether a writ petition filed under Article 226 of the Constitution of India is maintainable, when an alternate remedy is available. 3. Whether a writ petition is maintainable under Article 226 of the Constitution, when a party pursues multiple remedies. 4. Whether a writ petition is maintainable under Article 226 of the Constitution, in a dispute between private parties. 5. Whether a relief available under Article 226 of the Constitution, when the respondents/writ petitioners are guilty of suppression of crucial material. 6. Whether NCLT should be made a party, in a petition filed under Articles 226 or 227 of the Constitution, as the case may be. 7. ....
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....s passed by the State, authority or instrumentality of the State, can be challenged by way of a writ petition under Article 226 of the Constitution of India, as they do not fall under the ambit of superintendence and control, in exercise of Article 227 of the Constitution of India. 119. Difference between the exercise of powers under Articles 226 and 227 of the Constitution of India has been explained in the foregoing paragraphs. Thus, in the case on hand, when none of the parties, State or authority or instrumentality of the State, or any private body, discharging public functions, have been arrayed as respondents, when the writ petition has been filed under Article 226 of the Constitution of India, having regard to the roster followed in listing the cases, writ court ought to have directed the respondents/writ petitioners to make necessary amendments, to the provisions under which the writ petition ought to have been filed, or in the alternative, directed that the writ petition be placed before the concerned court, dealing with the challenges made to the orders passed by Courts, or Tribunals, as the case may be. Admittedly, the order impugned in the writ petition (Exhibi....
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.... on the courts at Aligarh. When the High Court of Calcutta exercised its writ jurisdiction over the matter, this Court held: "2. We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction. The contracts in question were executed at Aligarh, the construction work was to be carried out at Aligarh, even the contracts provided that in the event of dispute the Aligarh Court alone will have jurisdiction. The arbitrator was from Aligarh and was to function there. Merely because the respondent was a Calcutta-based firm, the High Court of Calcutta seems to have exercised jurisdiction where it had none by adopting a queer line of reasoning. We are constrained to say that this is a case of abuse of jurisdiction and we feel that the respondent deliberately moved the Calcutta High Court ignoring the fact that no part of the cause of action had arisen within the jurisdiction of that Court. It clearly shows that the litigation filed in the Calcutta High Court was thoroughly unsustainable." 24. The court examined the facts holistically, noting that the contract was executed and to be perform....
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....ing considered afresh. No costs." ... 126. On the facts and circumstances of the case, the issues raised for consideration are answered in favour of the appellants. In the result, this Writ Appeal is allowed. Impugned judgment in W.P.(C) No. 14341 of 2020 dated 22.07.2020 is set aside. ... 121. Applying the above said decision to the case on hand, we are of the view that the writ court, while entertaining the writ petition, has not considered or examined the facts holistically. 122. Giving due consideration to the decisions on jurisdiction, we are of the view that there is an error in exercising the jurisdiction under Article 226 of the Constitution of India." (iii) (2021) 225 Comp. Cas 442 (Mad) [Hero Exports Vs. K. Vasudevan, Resolution Professional and others], wherein the Division Bench of this Court held as follows: "... 12. Learned counsel also placed reliance upon the judgment reported in [2019] 17 Scale 37 : [2020] 9 Comp. Case-OL 609 (SC) (Embassy Property Developments P. Ltd., Vs. State of Karnataka). 13. This Court has carefully considered the arguments advanced by the learned counsel for th....
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....nd 227 of the Constitution of India. 18. The Hon'ble Apex Court, in paragraph No. 24 has observed that (page 628 of 9 Comp. Case-OL) ''the distinction between lack of jurisdiction and wrongful exercise of available jurisdiction should 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.' In paragraph No. 30 of the said judgment, the Hon'ble Apex Court of India had dealt with the jurisdiction and the powers of National Company Law Tribunal. There cannot be any difficulty in accepting the proposition laid down by the Apex Court in the above cited decision for the reason that it is also a well settled position of law. 19. The revision petitioner, under the guise of filing a revision, under Article 227 of the Constitution of India, wants this Court to issue a positive direction to National Company Law Tribunal, Chennai Bench, to exercise its inherent power in a particular manner. In the considered opinion of the Court, it cannot issue a positive direction to National Company Law Tribunal, Chennai Bench, as to how it should exercise its inhere....
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.... 4.1. Mr. AR.L. Sundaresan, learned senior counsel appearing for the petitioner submitted that in spite of the provisions of Section 61 of the Insolvency and Bankruptcy Code, 2016, this Court can entertain the Civil Revision Petition filed under Article 227 of the Constitution. Further, the learned Senior Counsel submitted that the jurisdiction of the High Courts under Article 226/227 cannot be wholly excluded and that the decisions of the Tribunal will be subject to the jurisdiction of the High Courts under Articles 226/227. 4.2. The learned Senior Counsel appearing for the appellant, in support of his contention, has relied upon a judgment reported in (2021) 10 Supreme Court Cases 401 [Kalpraj Dharamshi & anr. v. Kotak Investment Advisors Ltd. And anr.] wherein the Hon'ble Supreme Court held as follows: "... 97. In the present case, the facts are totally contrary. KIAL had approached the High Court of Bombay making a specific grievance, that NCLT had adopted a procedure which was in breach of the principles of natural justice. It is specifically mentioned in the writ petition, that though an alternate remedy was available to it, it was approaching the Hi....