Jammu & Kashmir High Court - Srinagar Bench
S. A. Gold Ispat Private Ltd vs The J&K Bank Limited And Others on 15 March, 2021
1
Suppl. 2
S.No.239
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
WP(C) No. 361/2020
CM No. 717/2020
S. A. Gold Ispat Private Ltd. ......Petitioner(s)
Through :- Mr. A. M. Dar, Advocate
v/s
The J&K Bank Limited and others ......Respondent(s)
Through :- Mr. Z. A. Shah, Sr. Advocate with
Assisting counsel
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
::: :
ORDER
1. The issue of maintainability of the present petition is in picture and is being
dealt with in the present order.
2. The petitioner-company through the medium of the present writ petition has
challenged the judgment dated 10.01.2020, passed by National Company Law
Tribunal, Chandigarh under Section 7 of Insolvency and Bankruptcy Code, 2016
(hereinafter called the Code). The contesting respondents through advocate have
appeared in the writ petition.
3. Mr. Z. A. Shah, learned Sr. counsel appearing on behalf of the respondents-
bank, has argued that the writ petition is not maintainable as the Code provides
alternative remedy of appeal against the order passed by the Tribunal and which is
impugned in the present writ petition. The failure to exercise the jurisdiction in a
particular manner does not give the petitioner right to approach the High Court in
writ petition even if it is assumed for the sake of arguments that some error has
crept in the order impugned before this court. The learned counsel for the
respondents has also submitted that the writ petitioner has failed to make out
through grounds of the writ petition the exact nature of grievance which they may
have qua the judgment passed by the Tribunal.
4. The learned counsel appearing for the petitioners has submitted that the
Tribunal has committed error on many aspects and go to the root of the case. The
Tribunal lacked the jurisdiction to entertain the petition filed before it and passed
the order which was not within its jurisdiction. In any case, Tribunal failed to
exercise the jurisdiction as per the provisions of the Act which consequently gives
jurisdiction to this court to deal with the order impugned irrespective of the fact
that remedy of appeal is available to the petitioners herein under the Code.
5. The learned counsels of both the sides rely upon the judgments of the
Hon'ble Supreme Court passed in M/S Embassy Property Developments Pvt. Ltd.
Versus State of Karnataka & ors. (Civil Appeal Nos. 9170 of 2019, 9171 of 2019
& 9172 of 2019 decided on 03.12.2019) and Bombay high court passed in WP(L)
titled Kamal K. Singh Vs. Union of India and others (No. 3250 of 2019, decided on
29.11.2019) and have put-forth their respective contentions accordingly.
6. As the court is only to confine itself to the maintainability of the writ
petition it is expedient that the court should not have detailed examination and
determination of the grievance of the petitioner on factual aspects of the matter
while deciding the present issue and therefore the same are not dealt with.
7. The learned counsels for the both sides have banked upon certain
observations of the judgements (supra) in support of their respective contentions.
The above mentioned judgements provide window as to whether the discretion is
to be exercised or not by the High Court in exercise of the powers conferred by
Article 226 of the Constitution of India. The distinction between the lack of the
jurisdiction and the wrongful exercise of the same should be taken into account by
the High Court when Article 226 is sought to be pressed into service as the aspect
of by-passing statutory alternate remedy is to be decided is what is basically
propounded by the Apex court in its judgment (supra). It is suffice to mention
herein that the judgment dealt with the order passed by NCLT in the case under the
Code.
8. The perusal of the writ petition reveals of the petitioner herein challenging
the order of the Tribunal on various grounds. The very challenge to the
proceedings filed by the bank before the Tribunal has been agitated in the writ
petition and in addition to that the violation of the provisions of Section 7 and
Section 10 of the Code stand highlighted in the writ petition. The proceedings
initiated before the civil courts against the bank with regard to the transaction
entertained into between the petitioner herein and the respondent bank and its
impact on the proceedings initiated before the Tribunal are also the issues which go
to the root of the case and require to be decided. As the petition has challenged the
basic proceedings initiated before the Tribunal in the present petition the court is of
the view that the issue has to be addressed by the court.
9. It cannot be disputed in the light of the Judgments (Supra) that the writ
jurisdiction against the order passed by the Tribunal cannot be said to be
completely barred and it depends upon the facts and circumstances of the case as to
whether the writ jurisdiction can be invoked in any given case. As the
pronouncements (Supra) are in the context of the Statute which is subject matter of
the present writ petition, therefore, the court need not refer to the other
authoritative pronouncements under other Statutes where the courts have
entertained the petition under Article 226 of the constitution inspite of the fact that
the Statute provides remedy of appeal.
10. The court is of the view that the present petition is maintainable in view of
the grounds taken and the matter requires consideration by the court. It is made
clear that the court has not otherwise expressed any opinion on the merits of the
case. The petition is also admitted to hearing. The counter be filed by the
respondents-bank by the next date. Put up on 05.5.2021.
(Puneet Gupta)
Judge
Srinagar
15.3.2021
Shammi
SHAMMI KUMAR
2021.03.15 16:54
I attest to the accuracy and
integrity of this document
