Jitender Kumar Jain vs Ec John
2021 Latest Caselaw 12172 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO.3518 OF 2021


       Jitender Kumar Jain                              .... Petitioner

       vs.

       EC John                                          ..... Respondents


       Mr.Amir Arsiwala for the petitioner

       Mr.J.P.Sen Senior Advocate a/w Mr.Nikhil                       Rajani       i/b
       M/s.V.Deshpande and Co. for the respondents



                                 CORAM:    K.K.TATED &
                                           PRITHVIRAJ K. CHAVAN, JJ.

DATED : AUGUST 31, 2021 P.C.

. Heard.

2. By this Writ Petition, under Article 226 and 227 of the Constitution of India, petitioner is seeking writ of prohibition or any other like writ or order directing the Court of Civil Judge, Junior Division, Wada, not to proceed with Regular Civil Suit No.121 of 2019.

3. The learned counsel for the petitioner submits that the respondents filed Regular Civil Suit No121 of 2019 in the court of Civil Judge, Junior Division, Wada for injunction in December,

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2019 with following prayers:

"A) be pleased to grant an order of prohibitory injunction restraining the defendant, its agents, servants or anyone claiming through them or acting on its behalf from disturbing the lawful possession and not to demolish the structures constructed by the Plaintiff over the suit property.

B) Interim relief in terms of prayer clause no. (A) above may be granted.

C) Permanent relief in terms of prayer clause no. (A) above may be granted.

            D)        Cost of the suit.

            E)       be pleased to allow the plaintiff to amend the
            present plaint, if necessary.

            F)      for any other orders may be passed in favour

of the plaintiff as this Hon'ble Court deems fit and proper.

For the act of kindness, the Plaintiff is duty bound and humbly ever prays."

4. The learned counsel for the petitioner submits that bare reading of the title of the Suit shows that same is not maintainable in view of Clause 33(5) of the Insolvency and Bankruptcy Code, 2016. Clause 33(5) of the said Code reads thus:

"(5) Subject to section 52, when a liquidator order has been passed, no suit or other legal proceeding shall be instituted by or against the corporate debtor."

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5. The learned counsel for the petitioner submits that as the Suit itself is not maintainable, they preferred the application before the National Company Law Tribunal for quashing the Civil Suit No.251 of 2019 being Misc. Application No.282 of 2020 in Company Petition (IB) 1055/(MB)/2017. He submits that National Company Law Tribunal, Mumbai Bench, Mumbai by order dated 24.01.2020 allowed the said application and passed following order:

"After hearing the parties concerned in view of the Section 33 (5) of the Code which reads as follows: - "Therefore, any suit that has been instituted seeking to disturbed the proceedings of the Liquidator or provisions of the IBC, 2016 are barred under law."

And hence we hereby quash the civil suit No. 251/2019 on the file of the Civil Court Junior Division, Wada District Palghar, Maharashtra forth with.

We make it very clear that any disturbance to the possession of the Liquidator or any obstruction if at all is caused by the said plaintiff who is Respondent in the present application shall be viewed very seriously by this Bench and liquidator is at liberty to approach the Police station of the concerned jurisdiction to file appropriate complaint as the very same would amount to trespass under Criminal law."

6. The learned counsel for the petitioner submits that being aggrieved by the order dated 24.01.2020, the respondents preferred Company Appeal (AT) (Ins) No.249 of 2020 before

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National Company Law Appellate Tribunal. He submits that National Company Law Appellate Tribunal by its order dated 01.09.2020 also upheld that the Suit as it is filed by the respondents is not maintainable but the Appellate Court observed as under in paragraph 6 and 8.

"6. Even if such bar is there, it is not appropriate for the Adjudicating Authority to quash the concerned suit which is filed in the Civil Court. It would be for the Liquidator to move the concerned Civil Court pointing out the provision of IBC or to move the District Court in the hierarchy for quashing of the Suit concerned.

8. For the above reasons, we partly allow the Appeal. The direction in the Impugned Order quashing the Civil Suit No.251 of 2019 on the file of Civil Court, Junior Division, Wada District Palghar, Maharashtra is set aside. The Liquidator would be at liberty to move Civil Court concerned or move the District Court as may be advised for appropriate relief."

7. The learned counsel for the petitioner submits being aggrieved by the order dated 01.09.2020 passed by National Company Law Appellate Tribunal, they preferred Civil Appeal No(S).3353 of 2020 before the Apex Court. He submits that Apex Court dismissed the said matter. Hence, they preferred the present Writ Petition.

8. The learned counsel for the petitioner submits that the Suit as it is filed by the respondent is not maintainable in view of Clause 33(5) of the Civil Procedure Code, 1907. He submits that if the Suit is not maintainable, then the aggrieved party can

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approach High Court under Article 226 and 227 of the Constitution of India. In support of this contention, the learned counsel for the petitioner relies on judgment of the Apex Court in the matter of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others, 1998(8) SCC 1. He relies on 20 and 21 which reads thus:

"20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.

21. That being so, the High Court was not justified in dismissing the Writ Petition at the initial stage without examining the contention that the show cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the "TRIBUNAL".

9. The learned counsel for the petitioner relies on the judgment of the Apex Court in the matter of Harihar Nath and Others vs. State Bank of India and Others, (2006) 4 SCC 457 . He relies on paragraph 18 of the said judgment which reads thus:

"18. The object of Section 446 of the Act is not to cancel, nullify or abate any claim against the company.

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Its object is to save the company which has been ordered to be wound up, from unnecessary litigation and from multiplicity of proceedings and protect the assets for equitable distribution among its creditors and shareholders. This object is achieved by compelling the creditors and others to come to the court which is winding up the company and prove their claims in the winding up. For this purpose, all suits and proceedings pending against the company are also stayed subject to the discretion of the winding up court to allow such suits and proceedings to proceed. When a winding up order is passed, the effect is that all the affairs pertaining to the company in liquidation, including all suits/proceedings by or against the company, come within the control and supervision of the winding up court. The winding up court has to decide whether it will let the suit/proceeding to continue in the court where it is pending, or it will itself adjudicate the suit/proceeding. Thus, under Section 446 (1), the winding up court only decides about the forum where the suit has to be tried and disposed of. The Limitation Act which prescribes the periods within which a party can approach a court seeking remedies for various causes of action, is not attracted to such applications under Section 446(1) of the Act. However, as elaborate arguments were advanced on this issue, we will deal with it in some more detail."

10. On the basis of these submissions, the learned counsel for the petitioner submits that in the interest of justice, this Hon'ble Court be pleased to direct the Civil Judge, Junior Division, Wada not to proceed with Regular Civil Suit No.121 of 2019 pending the hearing and final disposal of the Petition. He submits that if stay is not granted, irreparable loss will be caused to them.

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11. On the other hand, the learned Senior Counsel for the respondents vehemently opposed the present Writ Petition. He submits that bare reading of the order passed by National Company Law Appellate Tribunal clearly shows that liberty is granted to the petitioner to move before the Civil Judge, Junior Division, Wada for appropriate orders. Instead of filing appropriate application, they preferred Writ Petition before this court. Hence, same is required to be dismissed with costs.

12. We have heard both the sides at length.

13. It is to be noted that in the present proceeding, respondents filed Regular Civil Suit No.121 of 2019 before the Civil Judge, Junior Division, Wada and same is pending for hearing and final disposal on its own merits. When petitioner approached before the National Company Law Tribunal by way of Misc.Application No.282 of 2020 in C.P. (IB) - 1055/(MB)/2017. National Company Law Tribunal passed order dated 24.01.2020 and allowed the same. But that order of NCLT was set aside by National Company Law Appellate Tribunal by order dated 01.09.2020 and granted liberty to the petitioner to move before Civil Court for appropriate relief. Not only that, order dated 01.09.2020 passed by National Company Law Appellate Tribunal was challenged by the petitioner before Apex Court. Apex Court also dismissed Civil Appeal.

14. Authorities relied by the petitioner as stated above are not applicable in the facts and circumstances of the present case. There is a special provision in the Civil Procedure Code, 1908 for

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dismissing the Suit if it is not maintainable in law. Instead of adopting that procedure, petitioner filed present Writ Petition. Therefore, we do not find any reason to grant any interim or ad- interim relief in the present Writ Petition at present. Hence, following order is passed:

a.       Admit.


b.       No interim or ad-interim relief.


c.       Hearing of Writ Petition is expedited.


d.       The learned counsel for the respondent waives service.




(PRITHVIRAJ K. CHAVAN, J.)                       (K.K.TATED, J.)




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