Gauhati High Court
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GAHC010111772021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/1239/2021
M/S BOGIDHOLA TEA AND TRADING COMPANY PRIVATE LTD. AND 2 ORS.
A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1913 HAVING
ITS REGISTERED OFFICE AT BOGIDHOLA TEA ESTATE, P.O. LETEKUJAN,
DIST. GOLAGHAT, ASSAM AND ADMINISTRATIVE OFFICE AT 4TH FLOOR
PARAG BHAWAN G.S. ROAD ULUBARI, GUWAHATI-781007 DIST.
KAMURUP (M) REP. BY ITS MANAGER SRI SAILENDRA SINGH
2: PRAVIR KUMAR ROY
S/O LT. S.N. ROY EXECUTIVE DIRECTOR
BOGIDHOLA TEA AND TRADING COMPANY PRIVATE LTD. HAVING ITS
ADMINISTRATIVE OFFICE AT 4TH FLOOR PARAG BHAWAN G.S. ROAD
ULUBARI
GUWAHATI 781007 DIST. KAMRUP (M)
3: PREM KUMARI ROY
W/O LT. S.N. ROY DIRECTOR
BOGIDHOLA TEA AND TRADING COMPANY PRIVATE LTD. HAVING ITS
ADMINISTRATIVE OFFICE AT 4TH FLOOR PARAG BHAWAN G.S. ROAD
ULUBARI
GUWAHATI 781007 DIST. KAMRUP (M
VERSUS
SAJAY KUMAR SINGH AND ANR.
S/O LT. KAMAKHYA KUMAR ROY, PERMANENT R/O. MOHMAIKI GAON,
P.O. BOKAKHAT-785612 DIST.GOLAGHAT, ASSAM
2:ABHAY KUMAR SINGH
S/O LT. TARUN KUMAR ROY
R/O ASSAM COTTAGE
LUKAIAKHERA
LOKNAGAR UNNAO-209801 UTTAR PRADES
Advocate for the Petitioner : MR B KAUSHIK
Page No.# 2/4
Advocate for the Respondent :
Linked Case : CRP(I/O)/41/2021
M/S BOGIDHOLA TEA AND TRADING COMPANY PRIVATE LIMITED AND 2
ORS
A COMPANY INCORPORATED UNDER THE COMPANIES ACT
1913 HAVING ITS REGISTERED OFFICE AT BOGIDHOLA TEA ESTATE
P.O. LETEKUJAN
DIST. GOLAGHAT
ASSAM AND ADMINISTRATIVE OFFICE AT 4TH FLOOR PARAG BHAWAN
G.S. ROAD ULUBARI
GUWAHATI-781007 DIST. KAMURUP (M) REP. BY ITS MANAGER SRI
SAILENDRA SINGH
2: PRAVIR KUMAR ROY
S/O LT. S.N. ROY EXECUTIVE DIRECTOR
BOGIDHOLA TEA AND TRADING COMPANY PRIVATE LTD. HAVING ITS
ADMINISTRATIVE OFFICE AT 4TH FLOOR PARAG BHAWAN G.S. ROAD
ULUBARI
GUWAHATI 781007 DIST. KAMRUP (M)
3: PREM KUMAR ROY
W/O LT. S.N. ROY DIRECTOR
BOGIDHOLA TEA AND TRADING COMPANY PRIVATE LTD. HAVING ITS
ADMINISTRATIVE OFFICE AT 4TH FLOOR PARAG BHAWAN G.S. ROAD
ULUBARI
GUWAHATI 781007 DIST. KAMRUP (M)
VERSUS
SAJAY KUMAR SINGH AND ANR
S/O LT. KAMAKHYA KUMAR ROY PERMANENT R/O MOHMAIKI GAON
P.O. BOKAKHAT-785612 DIST.GOLAGHAT
ASSAM
2:ABHAY KUMAR SINGH
S/O LT. TARUN KUMAR ROY
R/O ASSAM COTTAGE
LUKAIAKHERA
LOKNAGAR UNNAO-209801 UTTAR PRADESH
------------
Advocate for : MR. S HAZARIKA
Advocate for : appearing for SAJAY KUMAR SINGH AND ANR
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BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
23-08-2021
This case which has been filed under Article 227 of the Constitution of
India is against an order passed by the learned National Company Law Tribunal
(NCLT) dated 03.05.2021. It appears that this matter has been listed before a
Single Bench when an order dated 08.04.2021 has also been passed.
The order impugned has been passed by a Division Bench of the Tribunal.
The Hon'ble Supreme Court in the case of L. Chandra Kumar vs. Union
of India reported in (1997) 3 SCC 261 while declaring the "exclusion of
jurisdiction" clause appearing in clause 2(d) of Article 323-A and clause 3(d) of
Article 323-B to the extent the exclude the jurisdictions of the High Court and
the Supreme Court under Article 226 / 227 and 32 of the Constitution of India
as unconstitutional has laid down that such decision can be the subject matter
of scrutiny before a Division Bench of the High Court within whose jurisdiction
the Tribunal concerned falls.
For ready reference, the relevant part of the said Judgment of the Hon'ble
Supreme Court is extracted herein below:-
"99. In view of the reasoning adopted by us, we hold that clause 2(d) of
Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude
the jurisdiction of the High Courts and the Supreme Court under Articles
226/227 and 32 of the Constitution, are unconstitutional. Section 28 of
the Act and the "exclusion of jurisdiction" clauses in all other legislations
enacted under the aegis of Articles 323-A and 323-B would, to the same
extent, be unconstitutional. The jurisdiction conferred upon the High
Courts under Articles 226/227 and upon the Supreme Court under Article
32 of the Constitution is a part of the inviolable basic structure of our
Constitution. While this jurisdiction cannot be ousted, other courts and
Tribunals may perform a supplemental role in discharging the powers
conferred by Articles 226/227 and 32 of the Constitution. The Tribunals
created under Article 323-A and Article 323-B of the Constitution are
possessed of the competence to test the constitutional validity of
statutory provisions and rules. All decisions of these Tribunals will,
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however, be subject to scrutiny before a Division Bench of the High Court
within whose jurisdiction the Tribunal concerned falls. The Tribunals will,
nevertheless, continue to act like courts of first instance in respect of the
areas of law for which they have been constituted. It will not, therefore,
be open for litigants to directly approach the High Courts even in cases
where they question the vires of statutory legislations (except where the
legislation which creates the particular Tribunal is challenged) by
overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the
Act is valid and constitutional and is to be interpreted in the manner we
have indicated."
The National Company Law Tribunal is constituted under Section 408 of
the Companies Act, 2013 and has been defined as the "Adjudicating Authority"
under Section 5(1) of the Insolvency and Bankruptcy Code, 2016.
Taking all the above aspects into consideration, Registry to ascertain as to
whether any case filed against an order of the NCLT is to be placed before the
Hon'ble Division Bench or the Single Bench.
After such verification, the matter may be listed on 24.08.2021.
JUDGE
Comparing Assistant
