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2026 (5) TMI 73
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.... Rajeev JUSTICE SHARAD KUMAR SHARMA MEMBER (JUDICIAL) AND JATINDRANATH SWAIN MEMBER (TECHNICAL) For the Appellants : Mr. NP Vijaykumar, Advocate For the Respondents : Mr. Bijoy P Pulipra, Advocate for R2-R8 Mr. Sankar P Panicker, Advocate for R9 Judgment Per: Justice Sharad Kumar Sharma, Member (Judicial) For deciding the issue of limitation as it involved consideration in the instant Company Appeal, that has been preferred by invoking Section 421 of the Companies Act, 2013, an initial reference to certain dates become relevant: - (i) On 22.10.2024, CP(C/Act)/21/KOB/2020 was decided by the Learned NCLT, Kochi Bench, resulting into passing of an order (which is impugned in the instant company appeal) to the effect that, the dues of the civil contractor, Mr. PT Mathew, amounting to Rs. 3.21 crores, shall be settled expeditiously i.e., by 31.10.2024. Besides, that it also contained a direction that ICA (i.e., an Independent Chartered Accountant) was also to verify and approve the payment and report the disbursement of the amount on or before 01.11.2024. (ii) The Appellant, during the pendency of the CP, had preferred a Writ Petition (C) No.36441/....
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....tion of corporate persons. The very purpose of the enactment will be defeated if the constitutional courts start interfering with the proceedings and orders passed by the NCLT at every stage, more so, when Section 421 of the Companies Act provides an appeal to NCLAT against the order of the NCLT. In the case at hand, the petitioners have preferred appeal against Ext.P11 order. The challenge on the ground that opportunity of hearing was not provided also cannot be countenanced, since sufficient opportunity is seen granted. In fact, even in the judgment passed in Contempt Case No.2967 of 2024, this Court has recorded that the Company Petition along with the Applications was posted for hearing on 30.05.2024, 13.06.2024, 25.06.2024, 30.07.2024 and 29.08.2024. The challenge against Ext.P20 is liable to be rejected also for the reason that, in the Contempt Case, this Court had directed the petitioner to move the Tribunal itself, if they have any grievance about the joint report of the Administrator and Chartered Accountant. As contended by the Counsel for the 10th respondent, the non-production of a copy of the order passed in COC No.2967 of 2024 can only be perceived as an attempt to su....
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....oday. If the appellants approach the Appellate Tribunal within the aforesaid period, the period of limitation prescribed to prefer an appeal to the Appellate Tribunal shall not come in the way of filing the appeal. The learned Appellate Tribunal shall not dismiss the appeal on the ground of delay and proceed to hear the appeal on merits. It is made clear that if the appeal is not filed within the aforesaid period, then the NCLAT may entertain the appeal subject to law of limitation and proceed to decide the appeal as expeditiously as possible. With the aforesaid direction, the writ appeal stands finally disposed of." (xiii) The Appellants' endeavour to further delay the proceedings did not cease at that juncture, when the Division Bench too, had dismissed the writ appeal on 09.06.2025. But rather on 23.06.2025, he filed a Review Petition, being Review Petition No.769/2025. This Review Petition too was dismissed with certain clarifications on 17.07.2025. The relevant observation made by the Division Bench, while dismissing the Review Petition, is extracted hereunder: - "8. In our considered opinion, in paragraph 10 of the impugned judgment, we have in ....
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....e Constitution of India, to regulate the proceedings before the NCLAT, which has an effect touching the merits of the Company Appeal. (ii) As to under what given set of circumstances the benefit of Section 14 of the Limitation Act, 1963, could be invariably extended to the litigants or the party to the proceedings who route their approach before the Appellate Jurisdiction of NCLAT, after exhaustion or resorting to the recourse by approaching the Writ Jurisdictions? We would be dealing with this question exclusively confined to our findings on Section 14 of the Limitation Act, 1963, and as to under what exceptional circumstances the benefit of the same could be extended to the litigants? (iii) What is the intention of the law in respect to the aspect of limitation, in relation to the proceedings before this Appellate Tribunal? 3. Our past exposure and experiences, which we had, while gathering from the proceedings those have been carried before us, in an Appellate Jurisdiction either in exercise of our appellate powers under Section 421 of the Companies Act, 2013, or under Section 61 of the I & B Code, 2016, is that at times we face a very awkward situation wher....
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....he residence of such person is not within those territories.] [(3) Where any party against whom an interim order whether by way of injunction of stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without- (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period or, as the case may be, the expiry of the said next day, stand vacated.] [(4) The pow....
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....of the Constitution of India it specifically confines the exercise of jurisdiction of the Hon'ble High Court under Article 226 of the Constitution of India, restricted to its territorial jurisdiction, in relation to which it exercises its jurisdiction. In exceptional circumstances of the case at hand, the question, which would require consideration and is required to be probed is as to whether, when we are exercising the Appellate Jurisdiction over the NCLT of five states, whether the language used of exercise of territorial jurisdiction as vested with the Hon'ble High Courts under Article 226 of the Constitution of India, could be extended to govern the jurisdiction of NCLAT also which is otherwise territorially located in the state of Tamil Nadu. It is because of the reason that the jurisdiction of the Hon'ble High Court under the special statutes of the Companies Act or for that matter under the I & B Code has been exclusively ousted to be applied, since the statute has specifically carved out a forum for the redressal of the grievances by any person or party aggrieved by an order passed by the NCLT irrespective of the territory of the particular state in which they are located ....
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....pervisory jurisdiction, even if it is covered by any breach of fundamental right even then too this aspect could always be scrutinised by a superior appellate forum, which has been created under the statute and that aspect in itself will not let it open for the aggrieved party to the proceedings before the NCLT, to resort to jurisdiction under Article 226 of the Constitution of India for redressal of the grievances as against the impugned orders or Judgments passed by the Tribunal by invoking the inherent jurisdiction of the Hon'ble High Courts of the different states by alleging that there was a breach of any of the covenants contained under Part 3 of the Constitution of India. 7. We are of the view that, so far as the enforcement of right under Part 3 of the Constitution of India, should be avoided to be approached by invoking Article 226 of the Constitution of India is concerned, first of all, it cannot be invariably attracted as against all the Judgments rendered by the NCLT, and also because, as per our opinion, all the Judgments or Orders of NCLT may not contain within itself an absolute breach of any of the rights contained and protected under Part 3 of the Constitution o....
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....ey will not be falling under the domain of Article 226 of the Constitution of India, which could enable the proceedings to be maintainable before the writ courts, so to be abused by the parties to create as a breach to not to approach the NCLAT or after resorting to the proceedings before the Hon'ble High Courts. 10. The said aspect could also be looked into from the provisions contained under Sub-Article (2) of Article 226 of the Constitution of India. It prescribes a power conferred under Clause (1), which was required to be conferred to issue directions, orders, or writs to any government authorities or any person, also the Hon'ble High Court may also exercise jurisdiction in relation to the territories within, which the cause of action has arisen. The cause of action herein would be, the cause of action acquired on account of there being any blatant fault or breach of the provisions contained or in the proceedings contemplated under the Companies Act, and if the cause of action is being restricted to pave way to approach, for the purposes of invocation of Article 226 of the Constitution of India. The continuance of the cause of action, or the subjects which are subject matte....
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....nces, and it should not normally be resorted to misuse constitutional remedies when there are other legal remedies available, and particularly approach to writ court is in a manner when it maliciously intends to override and somehow intends to create a breach the forum, which has already been provided to the party under the specific law remedy by providing provisions for an Appellate forum under Section 421 of the Companies Act, 2013, or under Section 61 of the I & B Code, 2016. 13. Similarly, under the Constitutional mandate, that is contained under Article 227 of the Constitution of India. Article 227 of the Constitution of India is, rather once again is in an exception to the provisions contained under Article 226 of the Constitution of India, and is independent in its intention and application. If we look into the language that has been used under Article 227 of the Constitution of India, the mandate that has been prescribed therein exclusively, it entails an exercise of jurisdiction by the Hon'ble High Court, in its supervisory jurisdiction over the Courts or the Tribunals which are located throughout the territory of the Hon'ble High Court over, which a particular Hon'ble ....
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....late Jurisdiction, under the aforesaid two provisions of the Act, are directly amenable by an aggrieved person by preferring of an Appeal before the Hon'ble Apex Court under Section 62 of the I & B Code, 2016, and Section 423 of the Companies Act, 2013, if that be the situation where the law does not prescribe that, the Judgment rendered by the NCLAT in the exercise of its Appellate Jurisdiction, is not reserved under law to be scrutinised judicially by the Hon'ble High Court of a particular territory. The Hon'ble High Court will cease to exercise its power of superintendence over the Tribunals, and particularly the Appellate Tribunal, in exercise of its authority as contemplated under Article 227 of the Constitution of India, and in the absence of there being any exclusive right vested with the Hon'ble High Court to exercise its supervisory jurisdiction to bring any of its functions, within the ambit of Article 227 of the Constitution of India, it will be ousting the jurisdiction of Hon'ble High Court to issue any directions where the orders passed by the NCLT are made subject to challenge before the Hon'ble High Court. 16. There could be yet another glaring factor, which is re....
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....ted under Sections 408 & 410 of the Companies Act, 2013. 18. We can look into the controversy from yet another perspective in the light of the Judgment of Hon'ble Apex Court, as rendered in the matters of M/s. Pure Investments Vs M/s. Young Friends and Co. & Ors., as reported in 2022 Livelaw SC 279, wherein the Hon'ble Apex Court has observed that even though in those cases, for example, those arising from the rent control matters, which was subject matter of consideration therein. The Hon'ble Apex Court has observed that even if power conferred under Article 227 was being exercised by the Hon'ble High Court in the exercise of its supervisory jurisdiction over the subordinate court orders, which has rendered judgments in the proceedings under the rent control provisions. The Hon'ble Apex Court has observed that the jurisdiction under Article 227 of the Constitution of India of the Hon'ble High Court is not wide enough to empower the Hon'ble High Court to enter into the scope of scrutinising the evidence or facts, because the Hon'ble High Court should recognise its restrictions over the exercise of its jurisdiction, and not by overstepping the boundary of the supervisory jurisdic....
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....al of the Writ Appeal, holding thereof that, the Appellant has got a remedy of preferring a Company Appeal under Section 421 of the Companies Act, 2013. 21. The argument extended by the Learned Counsel for the Appellant is that he would still be entitled to get the benefit of Section 14 of the Limitation Act, which is extracted hereunder: - "14. Exclusion of time of proceeding bona fide in court without jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such ....
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....ation Act, 1963, is able to satisfy the existence of the conditions, those have been self contained under Section 14 of the Limitation Act, 1963, in itself. Any provision of law where the applicability which depends upon the satisfaction of a certain pre-existing contingency or conditions to be applied only upon satisfying the given prior conditions, it takes the shape of a provision to be directory in nature and not mandatory. Because any person or a party to the proceedings, until or unless he is able to satisfy the court, about the exceptions as it has been carved out and contained under Section 14 of the Limitation Act, 1963, and were available to the Applicant/Appellant, under Section 14 of the Limitation Act, 1963, he will not be amenable to get the benefit under Section 14 of the Limitation Act, 1963, which is a general law governing the aspect of limitation, so far it relates to extension of period, which is particularly in context of the proceedings where time is the essence of proceedings and is originally governed by the aspect of limitation contained under that particular statute. 24. The provisions of Section 14 of the Limitation Act, 1963, contain three wider expre....
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....ceeded to follow recurring non maintainable proceedings before the Hon'ble High Court. The philosophy of "bonafide", has been determined in the matters of Shiv Sarup Gupta Vs Dr Mahesh Chand Gupta as reported in (1999) 6 SCC 222. In the said Judgment para 13, which is relevant is extracted hereunder: - "13. Chambers 20th Century Dictionary defines bona fide to mean "in good faith : genuine". The word "genuine" means "natural : not spurious : real : pure : sincere". In Law Dictionary, Mozley and Whitley define bona fide to mean "good faith, without fraud or deceit". Thus the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bona fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member....
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....ld in itself apparently dispel without a need of explanation that it was an honest action. The very fact in the instant case is that, when the Appellant was already under a judicial proceedings and was made conscious by the Learned Single Judge of the Hon'ble High Court, of the availability of the statutory remedy, to approach before NCLAT, by way of filing of a Company Appeal, at that juncture itself the Appellant ought to have invoked the Appellate forum, forthwith due to the legal bar and object of law, rather than filing of a Writ Appeal, as against the Judgment, which was not deciding a lis and was simpliciter closing the Writ Petition on the ground of the availability of an alternative statutory remedy, the very fact that even thereafter the Appellant continued to file a Writ Appeal and then a review thereafter too, despite knowing the fact that there is an availability of an alternative statutory remedy with him itself shows that, the Appellant was dubious in its intent and was not acting bonafide to accept procedure under law, as it was indicated to Appellant by the Judgment of Single Judge of Hon'ble High Court, and also the observation made therein by disposing of the con....
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.... to be made entitled to avail the benefit of Section 14 of the Limitation Act, 1963, is "good faith", which also almost happens to be a synonym to the expression "bonafide". The expression of good faith, as contained under Sub-Section (2) of Section 14, it only calls for an exercise of due care and diligence and some element of precaution and attention should be depicted from a human conduct, and the meaning of the same could be derived with the corresponding reading of the provision contained under Section 2(h) of the Limitation Act, which prescribes that an action, which is done by due care and precaution could be taken as to be an act done in good faith. Similar was the expression which was given and dealt with by the Hon'ble Apex Court in the matter of Deena Vs Bharat Singh, as reported in (2002) 6 SCC 336. The relevant para 14 of the said Judgment, which is extracted hereunder: - "14. The main factor which would influence the court in extending the benefit of Section 14 to a litigant is whether the prior proceeding had been prosecuted with due diligence and good faith. The party prosecuting the suit in good faith in the court having no jurisdiction is entitled to excl....
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.... before the High Court in good faith; therefore, the appellant cannot derive any benefit of Section 14 of the Act. Before the High Court, it was not disputed that the plaintiff-appellant has prosecuted the other civil proceeding with due diligence. What is disputed is that the plaintiff did not prosecute the civil proceeding in good faith. "Good faith" is defined in the Act as under: "2. (h) 'good faith' - nothing shall be deemed to be done in good faith which is not done with due care and attention;" The aforesaid definition shows that an act done with due care and attention satisfies the test of "good faith". "Due care" means that sufficient care was taken so far as circumstances demanded and there was absence of negligence. In other words, the plaintiff has taken sufficient care which a reasonable man is expected to take in order to avoid any injury. It is not shown here that the plaintiff-appellant has not taken sufficient care in prosecuting the remedy. Where a plaintiff is illiterate and is not acquainted with the procedural law, the only thing that he can do is to consult some lawyer for advice. It is not disputed that the plaintiff-appellant filed the revi....
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....d to be done in good faith without requiring it to be established, by any external processes. The expression of the term "good faith", may vary from case to case and circumstances, depending upon the circumstances and object of statute and also the subject in relation to which is being considered. There could not be any magnitude or yardstick or a device which could be used to test, as to, what would be the elements that would be required to satisfy "good faith", as it will always depend upon the facts and circumstances of the case, which herein, too almost by way of reiteration of the facts already given above, would mean when the Appellant had been intentionally resorting to the judicial proceedings taking advantage of time consumed in it and knowingly, it would mean that the Appellant was not acting in a good faith by drawing the proceedings, rather than orienting to drive the proceedings to derive the benefit of limitation. Thus, the actions of the Appellant will not be falling under the definition of good faith as contained under Section 2(h) of the Limitation Act, 1963. It could also be said that, under the given set of circumstances of the present case, the main test of dete....
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....herwise not reckoned to be available to him in accordance with law. Thus, the recourse to the those proceedings in continuation thereof may not amount to be a proceeding, which could be taken, that it has been taken by the party is bonafide or in good faith, enabling him to extend the benefit of allowing the period of limitation by extension of the equitable benefit available under Section 14 of the Limitation Act, 1963, as all the proceedings drawn subsequent thereto will not be the proceedings, which had been held thereafter in good faith. It needs no further elaborate reference, since there being a settled preposition and that too particularly, from the intention of the litigant that is the Appellant herein, they could be said to be enough understand a bare interpretation of law, and to the remedies that were available to them under law, particularly when the Appellant was made conscious of it by a judicial determination. 34. The expression of due diligence, as given under Section 14 of the Limitation Act, 1963, is available to a party to the proceedings, who is worthful and cautious and has foresight to accept the law, under the facts and circumstances of the case, particula....
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.... by the Hon'ble Apex Court in para 31 in the matter of Consolidated Engineering Enterprises Vs Principal Secretary Irrigation Department & Ors., as reported in (2008) 7 SCC 169. Para 31 of the said Judgment, which is extracted hereunder: - "31. To attract the provisions of Section 14 of the Limitation Act, five conditions enumerated in the earlier part of this judgment have to co-exist [Ed.: See para 21, above.]. There is no manner of doubt that the section deserves to be construed liberally. Due diligence and caution are essential prerequisites for attracting Section 14. Due diligence cannot be measured by any absolute standards. Due diligence is a measure of prudence or activity expected from and ordinarily exercised by a reasonable and prudent person under the particular circumstances. The time during which a court holds up a case while it is discovering that it ought to have been presented in another court, must be excluded, as the delay of the court cannot affect the due diligence of the party. Section 14 requires that the prior proceeding should have been prosecuted in good faith and with due diligence. The definition of good faith as found in Section 2(h) of the Lim....
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....e under law. There is a vast distinction between an "alternative remedy" and a "statutory remedy". In the case of an alternative remedy, there is a choice or possibility for the party to the proceedings to approach before either of the forums available to the litigant, but in the case of the statutory remedy, like the case at hand, where the filing of Company Appeal is mandatorily prescribed under Section 421 of the Companies Act, 2013, the parallel forum of writ jurisdiction is not available, and would be barred under law. If the Appellant himself has chosen to file the Writ Petition, which was not maintainable under law and if later which was dismissed on 24.03.2025 with an observation: - (i) That the Appellant has a remedy of appeal under Section 421 of the Companies Act, 2013. (ii) With an observation that from records it shows that, there was no violation of the Principles of Natural Justice, because of which the Appellant could had put a challenge to the impugned order passed by the NCLT on 22.10.2024, before the Hon'ble High Court. 38. But despite the aforesaid specific observation made by the Hon'ble High Court, in its order of 24.03.2025, the Appellant....
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....he purposes to be falling within the ambit of Section 14 of Limitation Act, 1963, and time consumed therein in perusing review could not at all be taken by the Appellant for the period of limitation to be reckoned from the date when the review is decided; rather, irrespective of the date of decision taken on the review, the limitation has to be determined from the date of the order on the principal proceedings that is either by the Writ Petition by the Single Judge or at least by the decision taken in the Writ Appeal by Hon'ble High Court. Thus, the period mis utilized by the Appellant in between 09.06.2025 to 17.07.2025 when Appellant was perusing review will not be available to the Appellant for the purposes for seeking condonation of delay in the light of the provisions contained under Section 14 of the Limitation Act, 1963, because under either of the circumstances, the proceedings were not carried by the Appellant with due diligence nor the proceedings were bonafide. 41. In that eventuality, under any of the circumstances, if limitation is to be taken, even let us presume, if we stretch it from the date of an order of the Single Judge itself, when the order was rendered, le....
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....ions of the special statute would override the provisions of the general statute. It is also well settled that while determining the effect of a statute overriding the other statute, the purpose and policy underlying the two statutes and the clear intendment conveyed by the language of the relevant provisions therein would be the relevant consideration. This Court in Commissioner of Income Tax, Patiala Vs. Shahzada Nand & Sons15, while stating the fundamental rule of construction, had observed that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the court as to what is just and expedient. 18. One of principles of statutory interpretation relevant for our purpose is contained in the Latin maxim "leges posteriores priores contrarias abrogant" (the later laws shall abrogate earlier contrary laws). Another relevant rule of construction is contained in the maxim "generalia specialibus non derogant" (General laws do not prevail over Special laws). When there is apparent conflict between two statutes, the provisions of a general statute must yield to those of a....
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....or the purposes of extension of the period of limitation, where any proceedings were governed by the general law and not by the special statute. But where a proceedings are governed by a special Act, the conditions to attract Section 14 of Limitation Act, 1963, as contained in it, are to be mandatorily satisfied. Even if that aspect is taken into consideration, the question that falls for consideration in the instant Appeal is as to whether at all Section 14 of the Limitation Act, in the given set of circumstances would be applicable. We are of the view that, for the reasons to satisfy the provision contained under Section 14 of the Limitation Act to be attracted. The language of the provision in itself prescribes that anybody who seeks the shelter of Section 14 of the Limitation Act, will have to establish its bonafide. Secondly, that he has acted in due diligence and thirdly, the procedural acts were in good faith. The act complaint hereof, in this case, we are of the view that it would not be a bonafide act, on the part of the Appellant for the reason, being that, according to our consideration, when the Writ Petition was considered and decided by an order of 24.03.2025. As we h....
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.... canvassed that since the Division Bench of the Hon'ble High Court of Kerala, in its Judgment of 09.06.2025, had condoned the delay, giving liberty to the Appellant to approach the Appellate Tribunal, observing thereof that this Appellate Tribunal shall not dismiss the Company Appeal on the ground of delay and would proceed to hear the Company Appeal on merits. We are of the view that, such a type of direction could not have been given by the Division Bench of Hon'ble High Court of Kerala nor would be finding too on the Appellate Tribunal (for the reasons to follow), once the Single Judge, in the Contempt Proceedings and even in the Writ Petition, where the Hon'ble High Court has accepted the fact of "non-maintainability" of Writ Petition, as against the order of the NCLT. Non-maintainability of the proceedings before the Hon'ble High Court, as not being a forum under law, in itself will restrict the jurisdiction of the Hon'ble High Court to pass any order of condoning the delay itself and granting an exemption of limitation, as any such direction would be falling outside the domain and jurisdiction of the Adjudicatory powers vested with the Hon'ble High Court particularly in exerc....
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....f the averments in the plaint, the application for interim relief and the written objection thereto, as well as the relevant law that is cited in support of the objection, would be a part of the court's reasoning of a prima facie case having been set up for interim relief, that the balance of convenience is in favour of the grant and non-grant would cause irreparable harm and prejudice. It would be inappropriate for a court to abstain from recording its prima facie satisfaction on the question of maintainability, yet, proceed to grant protection pro tem on the assumption that the question of maintainability has to be decided as a preliminary issue under Rule 2 of Order XIV, CPC. That could amount to an improper exercise of power. If the court is of the opinion at the stage of hearing the application for interim relief that the suit is barred by law or is otherwise not maintainable, it cannot dismiss it without framing a preliminary issue after the written statement is filed but can most certainly assign such opinion for refusing interim relief. However, if an extraordinary situation arises where it could take time to decide the point of maintainability of the suit and nongrant of p....
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....red the S.L.P. and the same was rejected by the Apex Court and only thereafter the applicant though of filing the present review application." 49. The issue, as to which would be the platform that would be available to consider the extension of benefit under Section 14 of the Limitation Act; whether it could be granted by the Court, which decides the proceedings to be not maintainable before it! or it was required to be considered by the court, which has been determined to be the forum, where the proceedings ought to have been drawn! There had been a consistent view that, if the particular court, for example, herein, the Hon'ble High Court, in the Writ Petition decides the proceedings were not maintainable before it, the time that is spent in pursuing the proceedings before the Writ Courts or a wrong forum, if at all it was required to be considered to be condoned in the light of the provisions contained under Section 14 of the Limitation Act, that could have been condoned or excluded from limitation only by the principal court, where actually the proceedings are maintainable, under law and ought to be drawn, and not by the court which was holding the proceedings to be not maint....
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....esented. Courts of law do not attempt to fetter the discretion of other courts or tribunals. The District Judge was, therefore, not well advised to express the opinion that a fraud had been played on the courts. The proper thing would have been to leave the question open and to simply order that the plaint shall be returned for presentation to a competent court. ..."" 51. In the said ratio, it had clearly laid down in the case of return of a plaint by a court for its presentation before the appropriate court, the benefit of Section 14 of the Limitation Act cannot be granted by the court returning the plaint to be presented before the proper court, it can be raised before whom the proceedings are directed to be presented, as the aspect of Section 14 of the Limitation Act, was not to be decided by the court which was not holding jurisdiction, and was directing the return of the proceedings to be decided by the appropriate court. 52. Almost a similar question arose for consideration before us in another case, as to, what would be the legal and judicial status of the Appellate Tribunals, those which had been created under the Companies Act. Our Judgments passed in the exercise of....
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....er:- "Jurisdiction and powers of NCLT 30. NCLT and NCLAT are constituted, not under the IBC. 2016 but under Sections 408 and 410 of the Companies Act, 2013. Without specifically defining the powers and functions of the NCLT, Section 408 of the Companies Act, 2013 simply states that the Central Government shall constitute a National Company Law Tribunal, to exercise and discharge such powers and functions as are or may be, conferred on it by or under the Companies Act or any other law for the time being in force. Insofar as NCLAT is concerned, Section 410 of the Companies Act merely states that the Central Government shall constitute an Appellate Tribunal for hearing appeals against the Orders of the Tribunal. The matters that fall within the jurisdiction of the NCLT, under the Companies Act, 2013, lie scattered all over the Companies Act. Therefore, Sections 420 and 424 of the Companies Act, 2013 indicate in broad terms, merely the procedure to be followed by the NCLT and NCLAT before passing orders. However, there are no separate provisions in the Companies Act, exclusively dealing with the jurisdiction and powers of NCLT." Thus, the aforesaid Judgment m....
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....nate remedy was available to it, it was approaching the High Court since the issue with regard to functioning of NCLT also fell for consideration. The proceedings before the High Court were hotly contested and by an elaborate judgment, the High Court dismissed [Kotak Investment Advisors Ltd. v. Krishna Chamadia, 2020 SCC OnLine Bom 197] the writ petition relegating the petitioner therein i.e. KIAL to an alternate remedy available in law. It is thus apparently clear, that KIAL was bona fide prosecuting a remedy before the High Court in good faith and with due diligence. In a given case, the High Court could have exercised jurisdiction under Article 226 of the Constitution inasmuch as, the grievance was regarding procedure followed by NCLT to be in breach of principles of natural justice. That would come within the limited area earmarked by this Court for exercise of extraordinary jurisdiction under Article 226 despite availability of an alternate remedy." 55. The Hon'ble Apex Court in the matter of Embassy Property Developments Private Limited Vs State of Karnataka, (2020) 13 SCC 308, had also dealt with the issue as to whether the Hon'ble High Court ought to interfere under Arti....
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....e NCLT, even if the question of maintainability was not the question raised, that whether the NCLT had its jurisdiction to deal with the issue! In that eventuality, too any orders, which has been passed by the Learned NCLT in a proceeding, which were otherwise maintainable or even not maintainable before it, that would be only amenable to an Appellate Jurisdiction under the appellate provisions of the Companies Act, i.e., before the NCLAT and not by way of a filing of a Writ Petition. 57. If we scrutinise the Judgment of Kalpraj Dharamshi in its para 57 & 59, the Hon'ble Apex Court, which is extracted hereunder: - "57. Therefore, the crucial question, that arises for consideration, is as to whether the provisions of Section 14 of the Limitation Act or the principles laid down therein would be available to KIAL for exclusion of the period during which it was prosecuting the writ petition before the Division Bench of the Bombay High Court. 59. The conditions that are required to be fulfilled for invoking the provisions of Section 14 of the Limitation Act have been succinctly spelt out in various judgments of this Court including the one in Consolidated Engg. Ente....
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....hed in the instant Company Appeal. (ii) We feel that, the aspect of condonation of delay, falls to be an aspect which entails consideration of the merits of the Appeal too and if the aspect of condonation of delay falls to be the merit consideration of the Appeal, that could not have been condoned or could have been considered to be condoned by extension of benefit under Section 14 of the Limitation Act on the directions of the Hon'ble High Court, which had held that the proceedings before it were barred by statutory alternative remedy. (iii) We conclude that, once the Hon'ble High Court has observed that the proceedings before it are not maintainable due to the availability of the statutory remedy, at that moment itself, the Hon'ble High Court ceases its power to pass any orders dealing with the aspect of delay, which engages consideration of the merits of the Appeal. (iv) Since in the instant case, the Appellant had been consistently engaging himself in multifarious proceedings before the Hon'ble High Court itself, when the Writ Petition was already determined to be not maintainable. The conduct of the Appellant cannot be said to be bonafide and in good....