TaxTMI 
TaxTMI 
TaxTMI 
2024 (2) TMI 1619
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....e applicant-Corporate Debtor. The seal and signature are forged and fabricated. The said document does not belong to the applicant or its authorized signatories. Therefore, the applicant sought for a direction to respondent for producing the original of alleged ledger statement dated 14.04.2017, impose penalty under Section 65(1) of the Insolvency and Bankruptcy Code for malicious initiation and dismiss the company petition for malicious initiation. 4. To the above said application, the respondent-operational creditor filed reply alleging that the alleged ledger statement was provided by the applicant-Corporate Debtor itself and there is no requirement of providing its authenticity and further stated that 3 out of 5 purchase order issued by the applicant bear the same stamp of 'Ramky Group' which is claimed to be forged, and that the alleged ledger statement was not served on them with demand notice as the same is an additional document affirming outstanding dues. 5. The learned Tribunal after considering the rival submissions, closed the Interlocutory Application on the ground that it is not maintainable. Aggrieved by the same, the applicant filed this Civil Revision Petitio....
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....le, in view of the provisions of Section 34 of the Act of 1996. In State of Maharastra and others v. Greatship (India) Limited [(2022) SCC Online SC 1262] the Honourable Supreme Court observed as under: "The Court while exercising its jurisdiction under Article 226 is duty - bound to consider whether: a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved b) the petition reveals all material facts c) the petitioner has any alternative or effective remedy for the resolution of the dispute. d) person invoking the jurisdiction is guilty of unexplained delay and latches e) ex facie barred by any laws of limitation f) grant of relief is against public policy or barred by any valid law; and host of other factors." It was further observed by the Apex Court at paragraph No. 17 of the Judgment as under: "In view of the above and in facts and circumstances of the case, the High Court has seriously erred in entertaining the writ petition against the assessment order. The High Court ought to have relegated the writ petitioner - assessee ....
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....t is raised involves a pure question of law and even if the matter is referred to the Chancellor under Section 68 of the Act it is bound to be agitated in the court by the party aggrieved by the order of the Chancellor, we are of the view that this was not a case where the High Court should have non-suited the appellant on the ground of availability of an alternative remedy." 13. The learned counsel for the revision petitioner further relied upon a decision in Durga Enterprises (P) Limited and another v. Principal Secretary, Government of U.P. and others [(2004) 13 Supreme Court Cases 665] wherein the Apex Court observed that the High Court having entertained the writ petition, in which pleadings were also complete, ought to have decided the case on merits instead of relegating the parties to a civil suit. In Popcorn Entertainment and another v. City Industrial Development Corporation and another [(2007) 9 Supreme Court Cases 593] the Apex Court observed as under: "We have given our careful consideration to the rival submissions made by the respective counsel appearing on either side. In our opinion, the High Court has committed a grave mistake by relegating the appella....
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.... them afterwards to change front and give the go by altogether to the conception of the rights of parties entertained by them till then. According to him, there was manifest injustice to his client in allowing them to do so and this was the reason which impelled the High Court to make the order which is the subject-matter of challenge in this appeal." 16. In State of Rajasthan and others v. Lord Northbrook and others [MANU/SC/1180/2019 (CA No. 6677 of 2019 decided on 28.08.2019)] the Honourable Supreme Court held as under: "51. Under Article 226 of the Constitution of India, the High Court having regard to the facts of the case has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions; one of which is an effective and efficacious remedy available. When efficacious alternative remedy is available, the High Court would not normally exercise the jurisdiction. However, alternative remedy will not be a bar at least in three instances:- (i) where writ petition is filed for enforcement of any of the fundamental rights; (ii) where there is a violation of the fundamental right or prin....
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....e saving the power of judicial review of legislative action vested in the High Courts under Article 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter." 19. There is no dispute that there is alternative statutory remedy available to the revision petitioner under Section 61 of the Insolvency and Bankruptcy Code, 2016 as rightly contended by the learned counsel for the respondent. But it is pertinent to note that the plea of maintainability of a case has to be taken at the earliest possible time. However, the present Civil Revision Petition was filed in the year 2020 and subsequently interim stay was granted. As observed by the Division Bench of this Court in M/s. Regency Diaper Industries Limited case (supra) once case is admitted and stay is granted, after a long lapse of time, the parties should not be relegated to avail of the alternative remedy. In M/s. Godrej Sara lee Limited v. The Excise and Taxation Officer - Cum - Assessing authority and others [2023 Live L....
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....ry, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the high courts, 6 writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper. 20. It is to be observed that the questions that are involved in the case on hand are based on facts as well as law. Thus, this Court is of the....
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....ctions 465, 417 and 420 of the Indian Penal Code. 25. The learned counsel for the revision petitioner contended that the learned Tribunal passed the impugned order holding that it is beyond its jurisdiction to adjudicate the issue of forged document i.e., ledger statement dated 14.04.2017 relying on the decision of the NCLAT in Shelendra Kumar Sharma v. DSC Limited [Company Appeal (AT) (Insolvency) No. 1459 of 2019 decided on 16.12.2019] wherein it was observed that so far as the question as to whether the documents are forged or not is concerned, it cannot be determined by the Adjudicating Authority (National Company Law Tribunal) or this Appellate Tribunal and therefore, the Adjudicating Authority rightly not deliberated on such issue. The learned counsel for the respondent relied upon a decision of the Honourable Supreme Court in Radha Export (India) Private Limited v. K.P. Jayaram and another [(2020) 10 SCC 538], wherein it was observed that disputes as to whether the signatures of the respondents are forged or whether records have been fabricated can be adjudicated upon evidence including forensic evidence in a regular suit and not in proceedings under Section 7 IBC. ....
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....ion in the claim between the demand notice and the amount claimed in the petition. Here, the applicant/corporate debtor is challenging the discounts said to have been allowed by it. The contention of the applicant/corporate debtor is that the discount was allowed between 1% and 2% and it does not exceed beyond 2% at any time. Whereas, in some of the invoices filed by the respondent/operational creditor discount went up to 4%. 9. When a serious ground is raised by the applicant/corporate debtor about the veracity of the invoices and pointed out the undisputed fact that a criminal case was filed against the respondent/operational creditor, it has become necessary to direct the respondent/operational creditor to produce the original invoices for which claim is raised to enable the adjudicating authority to decide the dispute. The original invoices are in the custody of the respondent/operational creditor. There will not be difficulty for the operational creditor to produce the originals for inspection by the Tribunal as well as by the parties concerned for a just decision of the issue involved. It is, therefore, necessary to direct the respondent/operational creditor to produ....