Karnataka High Court

Arun Kumar M vs The National Company Law Tribunal on 11 March, 2022

Bench: S.G.Pandit

                               1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 11TH DAY OF MARCH 2022

                          BEFORE

           THE HON'BLE MR.JUSTICE S.G.PANDIT

        WRIT PETITION NO.23544 OF 2021(GM-RES)


BETWEEN:

Arun Kumar M.,
Son of Marisonappa,
Aged about 46 years,
Residing at No.100,
4th Main, Amarjyothi Layout,
R.T.Nagar,
Bengaluru-560 032.
                                          ... Petitioner

(By Sri. Akshkay J Simha, Advocate for
Sri. G. Sridhar, Advocate)

AND:

1.     The National Company Law
       Tribunal,
       Bengaluru Bench,
       Represented by its Registrar,
       Raheja Tower,
       12th Floor, M.G. Road,
       Bengaluru-560 001.

2.     Arun Shelters Private Limited,
       Represented by its Resolution,
       Professional,
       Ms. Sripriya Kumar,
                                2


      No.299, 6th Cross,
      1st Block, R.T. Nagar,
      Near BDA Complex,
      Bengaluru-560 032.

3.    Kotak Mahindra Bank,
      Having its Registered office at,
      NO.27, BKC, Bandra (E),
      Mumbai-400051.

4.    Sripriya Kumar,
      Resolution Professional of
      Arun Shelters Private Limited,
      224A(New 346/1),
      Next to National Public School,
      Avvai Shkanmugam Salai,
      Gopalapuram,
      Chennai-600 086.
                                             ...Respondents

(By Sri. Dhyan Chinnappa, Senior Counsel along with
Sri, V.J. Achalananda, Advocate for C/R3:
R1 and R4 are served)

      This writ petition is filed under articles 226 and 227
of the Constitution of India Praying to       set aside the
impugned order dated: 29.06.2020 passed by the R1 on
I.A.No.187 and 195/2020 Annexure-F and direct the R4 to
reconstitute the committee of creditors of the R2 and
reinitiate CIRP in accordance with law and etc.


      This writ petition, coming on for orders, this day, the
Court made the following:
                                3


                           ORDER

The petitioner is before this Court under Articles

226 and 227 of the Constitution of India praying to set

aside the order dated 29.06.2020 passed on IA Nos.187

and 195/2020 in CP (IB) 305/BB/2019 vide Annexure-

F and for a direction to respondent No.4 to reconstitute

the Committee of Creditors of respondent No.2 and

reinitiate Corporate Insolvency Resolution Process (for

short 'the CIRP') in accordance with law.

2. When this writ petition was listed for preliminary

hearing on 20.12.2021, this Court passed the following

interim order:

"Office objections over ruled.

The proceedings before the NCLT shall go on, short of making any final order therein.

This benefit petitioner will be having, subject to paying Rs.10 crores to the respondent No.3 -bank within a period of four weeks, as under:

(I) 50% within two weeks;

(II) another 50% within next two weeks; failing which, not only interim order stands rescinded, writ petition may run the risk of being rejected".

3. Challenging the above interim order, the

respondent - Bank was in appeal in W.A.No.1/2022.

The Division Bench of this Court by judgment dated

04.02.2022 disposed of the writ appeal requesting the

learned Single Judge to decide the maintainability of the

writ petition before proceeding any further.

4. Today, the matter is listed for orders on IA

No.1/2022 for extension of time. The writ petition is

taken up with the consent of the learned counsel

appearing for the parties on the question of

maintainability.

5. The petitioner is a suspended Director of the 2nd

respondent-Arun Sheltors Private Limited (for short 'the

Company'), which is engaged in the business of

Construction of Real Estate Projects. The 2nd

respondent initially had obtained financial assistance to

an extent of Rs.20.00 Crores from the Corporation

Bank. Subsequently the said loan was assigned to the

3rd respondent-Kotak Mahindra Bank (for short 'the

Bank'). The 2nd respondent-Company committed

default in repayment of the dues. At the instance of

respondent No.3-Bank, the 1st respondent-Adjudicating

Authority passed orders under the provisions of the

Insolvency and Bankruptcy Code, 2017 (for short 'the

Code') initiating CIRP.

6. Further it is stated that Committee of Creditors

was constituted consisting of 3 members apart from

Resolution Professional. At the third meeting of the

creditors, the Resolution Professional reconstituted the

Committee to admit all the creditors of 2nd respondent

including M/s.Kenstream Ventures and

M/s. Purvankara Limited in its meeting on 02.05.2020.

The 3rd respondent-Bank aggrieved by the

reconstitution of Committee of Creditors filed

I.A.No.187/2020 and I.A.No.195/2020 in C.P. (IB)

No.305/BB-2019 challenging the reconstitution of

Committee of Creditors. The 1st respondent under the

impugned order allowed the applications and set aside

the reconstitution of the Committee of Creditors, which

orders are under challenge in this writ petition.

7. The creditors i.e., M/s. Kenstar Ventures and

M/s. Purvankara Limited by virtue of the impugned

order were out of Committee of Creditors, filed

I.A.No.58/2021 and 59/2021 before the National

Company Law Tribunal (for short 'the NCLT') to

suspend the order dated 29.06.2020 setting aside the

reconstitution of Committee of Creditors. The

applications were dismissed by the 1st respondent by

order dated 19.03.2021, against which the above two

creditors filed appeals in Appeal Nos.237/2021 and

241/2021 before the NCLAT, which is pending

consideration.

8. Heard the learned counsel for the petitioner and

Sri Dhyan Chinnappa, learned Senior Counsel for the

3rd respondent-Bank. Perused the writ petition papers.

9. Learned counsel for the petitioner would submit

that the impugned order passed by the 1st respondent-

NCLT is not in conformity with the provisions of the

Code and is consequently prejudicial to the petitioner

and other stake holders of the 2nd respondent-Company.

The 1st respondent while passing the impugned order

ignored partially, the provisions of Section 21(2) of the

Code, which requires the Committee of Creditors to

comprise of all financial creditors of the Corporate

Debtor. It is his submission that Resolution

Professional had rightly included all the creditors viz.,

M/s. Kenstar Ventures as well as M/s. Purvankara

Limited., but however, under the impugned order at the

instance of 3rd respondent-Bank reconstituted the

Committee, keeping out the above stated two creditors,

which would be prejudicial to the interest of the

petitioner.

10. Learned counsel for the petitioner would submit

that writ petition under Article 226 of the Constitution

of India would be maintainable, whenever impugned

order is passed in violation of principles of natural

justice when the order is passed without jurisdiction;

when the order is also passed ignoring the provision of

the Statute or when the orders of an authority is

contrary to the provisions. It is his submission that the

1st respondent-NCLT has ignored the provisions of

Section 21(2) of the Act and proceeded to reconstitute

the Committee of Creditors. Hence he submits that writ

petition would be maintainable. He places reliance on

the decision of the Hon'ble Apex Court in support of his

contention in SHALINI SHYAM SHETTY AND ANOTHER

VS. RAJENDRA SHANKAR PATIL, reported in 2010 (8)

SCC 329.

11. Sri Dhyan Chinnappa, learned Senior Counsel for

3rd respondent-Bank submits that the impugned order

is passed by the 1st respondent-NCLT on 29.06.2020

and the writ petition is filed before this Court only on

17.12.2021 i.e., more than 1 ½ years from the date of

passing the impugned order. It is submitted that the

petitioner had an alternate remedy of appeal to be filed

before the National Company Law Appellate Tribunal

(for short 'the NCLAT') under Section 61 of the Code.

In terms of Section 61 of the Code any person aggrieved

by the order of the Adjudicating Authority may prefer an

appeal to the Appellate Tribunal within 30 days and the

Appellate Authority may allow the appeal after the

expiry of the said period of 30 days, if it is satisfied that

there was sufficient cause for not filing the appeal, but

such period shall not exceed 15 days. Therefore, he

submits that having failed to utilize the opportunity of

filing an appeal, the petitioner in an after thought is

before this Court under Article 226 of the Constitution

of India. He would submit that writ petition filed after

more than a year from the date of expiry of limitation

period, the writ petition would not be maintainable.

Learned Senior Counsel would submit that the statute

prescribes limitation and also fixes the time for

condonation of delay; if the writ petition is entertained,

it would amount to extending the period of limitation

prescribed under the statute, which is not permissible.

Reliance is placed on the decision of the Hon'ble Apex

Court in ASSISTANT COMMISSIONER (CITY) LTU,

KAKINADA AND OTHERS Vs. GLAXO SMITH KLINE

CONSUMER HEALTH CARE LIMITED reported in AIR

2020 SC 2819. Learned Senior Counsel would draw

attention of this Court to paragraphs 11, 12, and 13 of

the judgment and submit that the Hon'ble Apex Court

has observed that in matters like this nature, the Apex

Court itself has no power even under Article 142 of the

Constitution of India to condone the delay, therefore,

the High Courts under Article 226 of the Constitution of

India would not be in a position to condone the delay.

Thus it is his submission that when the Statute would

not permit filing of appeal after a certain period, if the

present writ petition is entertained, it would amount to

extending the statutory limitation. Moreover, he

submits that the present writ petition is filed only after

the creditors approached the Appellate Tribunal, when

their application challenging the re-constitution of the

Committee of creditors was dismissed. Thus he prays

for dismissal of the writ petition.

12. On hearing the learned counsel for the parties and

on perusal of the writ petition papers the only point for

consideration would be as to 'Whether a writ under

Article 226 would be maintainable on expiry of

limitation prescribed under the Code for statutory

appeal?'

The answer to the above point would be in the negative

and in the facts of the case, the writ petition would not

be maintainable.

The order under challenge in the present writ

petition is the order passed by the NCLT dated

29.06.2020 on I.A.Nos.187 and 195/2020 in C.P.(IB)

No.305/BB/2019 setting aside the order of

reconstitution of Committee of creditors.

13. Chapter VI of the Code provides Adjudicating

Authority for corporate persons. Section 60 of the Code

provides NCLT as Adjudicating Authority in relation to

insolvency resolution and liquidation for corporate

persons including corporate debtors and personal

guarantors thereof. Section 61 of the Code provides for

appeals and appellate authority which reads as follows:-

"61. Appeals and Appellate Authority.- (1) Notwithstanding anything to the contrary contained under the Companies Act, 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this part may prefer

an appeal to the National Company Law Appellate Tribunal.

(2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal:

Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days.

(3) An appeal against an order approving a resolution plan under section 31 may be filed on the following grounds, namely:--

(i) the approved resolution plan is in contravention of the provisions of any law for the time being in force;

(ii) there has been material irregularity in exercise of the powers by the resolution professional during the corporate insolvency resolution period;

(iii) the debts owed to operational creditors of the corporate debtor have not been provided for in the resolution plan in the manner specified by the Board;

(iv) the insolvency resolution process costs have not been provided for repayment in priority to all other debts; or

(v) the resolution plan does not comply with any other criteria specified by the Board.

(4) An appeal against a liquidation order passed under section 33 may be filed on grounds of material irregularity or fraud committed in relation to such a liquidation order."

A perusal of the above provision makes it clear that any

person aggrieved by order of the Adjudicating Authority

may prefer an appeal to the NCLAT within 30 days and

the Appellate Tribunal could permit filing of appeal after

the said period of 30 days on being satisfied with

sufficient cause for not filing the appeal not exceeding

15 days. In other words, maximum of 45 days is

provided for any person aggrieved by order of the

Adjudicating Authority to file appeal before the

Appellate Tribunal. The Code would not provide for

provision to condone the delay in filing the appeal before

the Appellate Tribunal beyond 15 days.

14. Admittedly the petitioner has not availed or

utilized the appeal remedy provided under Section 61 of

the Code against the order impugned in the writ

petition. Having not availed the appeal remedy the

petitioner is before this Court after more than one and

half years from the date of the impugned order. The

impugned order is dated 29.06.2020, whereas the

present writ petition is filed before this Court on

17.12.2021. There is no explanation as to the delay in

filing the writ petition. Moreover, the petitioner is before

this Court with an averment that the petitioner has no

alternative efficacious remedy, which is not correct and

it amounts to suppression of fact of having alternate

remedy under the Code. It is not that the writ petition

would not be maintainable against the order passed by

the NCLT, but the question is having not availed the

alternate remedy of appeal, whether writ petition could

be filed long after lapse of limitation prescribed under

the Code.

15. Normally when a statute provides for alternate

remedy, writ petition under Article 226 of the

Constitution of India would not be entertained unless

one makes out extraordinary ground to entertain the

writ petition. The Hon'ble Apex Court in catena of

decisions has made it clear that when a statute provides

for alternate remedy, the remedy provided under the

statute must be availed. The Hon'ble Apex Court in

TITAGHUR PAPER MILLS CO.LIMITED AND ANOTHER VS.

STATE OF ORISSA AND OTHERS reported in (1983) 2

SCC 433 at paragraph 11, has held as follows :-

"11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the act, and then ask for a case to be stated upon a question of law

for the opinion of the High Court under Section 24 of the Act, the Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the act and not be a petition under Article 226 of the Constitution. It is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage:

There are three classes of cases in which a liability may be established founded upon statute.... But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it... the remedy provided by the statute must be followed, and it is not competent to the party to purse the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.

The rule laid down in this passage was approved by the House of Lords in Neville v.

London Express Newspapers Ltd. and has been reaffirmed by the Privy Council in Attorney- General of Trinidad and Tobago v. Gordon Grant

& Co.Ltd. and Secretary of State v. Mask & Co. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."

16. Identical question as to whether the High Court in

exercise of its writ jurisdiction under Article 226 of the

Constitution of India ought to entertain a challenge to

the assessment order on the sole ground that the

statutory remedy of appeal against that order stood

foreclosed by the law of limitation, fell for consideration

in ASSISTANT COMMISSIONER supra. In the said case

the Assistant Commissioner passed final assessment

order on 21.06.2017 and order was served on the

assessee on 22.06.2017. The assessee failed to avail the

remedy of appeal within the statutory period. After

depositing certain demanded amount, the assessee filed

application highlighting the error in raising the demand

on incorrect turnover, which came to be rejected vide

order dated 11.05.2018. Aggrieved by the said decision

assessee filed appeal before the Appellate Deputy

Commissioner, which came to be rejected on

17.08.2018. Thereafter, the assessee filed appeal

against the final assessment order dated 21.06.2017.

The said appeal was dismissed being barred by

limitation. The assessee filed writ petition and after

hearing, the writ petition came to be allowed and the

order passed by the Assistant Commissioner dated

21.06.2017 was quashed. Aggrieved by the said order

of the Division Bench, the Revenue/State filed appeal

before the Supreme Court contending that the assessee

having failed to avail the statutory remedy of appeal

within the prescribed time, the High Court ought not to

have entertained the writ petition. In the above said

circumstances, the Hon'ble Apex Court at paragraphs

11, 12, 14, 15 has held as follows :-

"11. In the backdrop of these facts, the central question is: whether the High Court ought to have entertained the writ petition filed by the

respondent? As regards the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law (see Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad now Zila parishad, muzaffaranagar and also Nivedita Sharma v.

Cellular Operators Association of India and Ors.). In Thansingh Nathmal and Ors. v. Superintendent of Taxed, Dhubri and Ors., the Constitution Bench of this Court made it amply clear that although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self-imposed restraint and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person. In paragraph 7, the Court observed thus :-

"7. Against the order of the Commissioner an order for reference could have been claimed if the

appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles.

But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self- imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which

without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up." (emphasis supplied).

We may usefully refer to the exposition of this Court in Titaghur Paper Mills Co. Ltd. & Anr. Vs. State of Orissa & Ors. 11, wherein it is observed that where a right or liability is created by a statute, which gives a special remedy for

enforcing it, the remedy provided by that statute must only be availed of. In paragraph 11, the Court observed thus: -

"11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CBNS 336, 356] in the following passage:

There are three classes of cases in which a liability may be established founded upon statute. . . . But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class.

The form given by the statute must be adopted and adhered to.

The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. (1919 AC 368) and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. (1935 AC 532) and Secretary of State v. Mask & Co. (AIR 1940 PC

105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."

(emphasis supplied)

In the subsequent decision in Mafatlal Industries Ltd. & Ors. vs. Union of India & Ors., this Court went on to observe that an Act cannot bar and curtail remedy under Article 226 or 32 of the Constitution. The Court, however, added a word of caution and expounded that the constitutional Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. To put it differently, the fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pass orders which can

be settled only through a mechanism prescribed by the statute.

12. Indubitably, the powers of the High Court under Article 226 of the Constitution are wide, but certainly not wider than the plenary powers bestowed on this Court under Article 142 of the Constitution. Article 142 is a conglomeration and repository of the entire judicial powers under the Constitution, to do complete justice to the parties. Even while exercising that power, this Court is required to bear in mind the legislative intent and not to render the statutory provision otiose. In a recent decision of a three Judge Bench of this Court in Oil and Natural Gas Corporation Limited vs. Gujarat Energy Transmission Corporation Limited & Ors. the statutory appeal filed before this Court was barred by 71 days and the maximum time limit for condoning the delay in terms of Section 125 of the Electricity Act, 2003 was only 60 days. In other words, the appeal was presented beyond the condonable period of 60 days. As a result, this Court could not have condoned the delay of 71 days. Notably, while admitting the appeal, the Court had condoned the delay in filing the appeal. However, at the final hearing of the appeal, an objection regarding

appeal being barred by limitation was allowed to be raised being a jurisdictional issue and while dealing with the said objection, the Court referred to the decisions in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur & Ors., Commissioner of Customs and Central Excise vs. Hongo India Private Limited & Anr., Chhattisgarh State Electricity Board vs. Central Electricity Regulatory Commission & Ors. and Suryachakra Power Corporation Limited vs. Electricity Department represented by its Superintending Engineer, Port Blair & Ors. and concluded that Section 5 of the Limitation Act, 1963 cannot be invoked by the Court for maintaining an appeal beyond maximum prescribed period in Section 125 of the Electricity Act.

14. A priori, we have no hesitation in taking the view that what this Court cannot do in exercise of its plenary powers under Article 142 of the Constitution, it is unfathomable as to how the High Court can take a different approach in the matter in reference to Article 226 of the Constitution. The principle underlying the rejection of such argument by this Court would

apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution.

15. We may now revert to the Full Bench decision of the Andhra Pradesh High Court in Electronics Corporation of India Ltd.(supra), which had adopted the view taken by the Full Bench of the Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. v. Union of India & Ors. and also of the Karnataka High Court in Phoenix Plasts Company vs. Commissioner of Central Excise (Appeal-I), Bangalore. The logic applied in these decisions proceeds on fallacious premise. For, these decisions are premised on the logic that provision such as Section 31 of the 1995 Act, cannot curtail the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. This approach is faulty. It is not a matter of taking away the jurisdiction of the High Court. In a given case, the assessee may approach the High Court before the statutory period of appeal expires to challenge the assessment order by way of writ petition on the ground that the same is without jurisdiction or passed in excess of jurisdiction by overstepping or crossing the limits of jurisdiction including in flagrant disregard of law and rules of procedure or in violation of principles of natural justice,

where no procedure is specified. The High Court may accede to such a challenge and can also non-suit the petitioner on the ground that alternative efficacious remedy is available and that be invoked by the writ petitioner. However, if the writ petitioner choses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed under Section 31 of the 2005 Act, the High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party as a matter of course. Doing so would be in the teeth of the principle underlying the dictum of a three - Judge Bench of this Court in Oil and Natural Gas Corporation Limited (supra). In other words, the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose."

The ratio laid down in the above decision would be

squarely applicable to the case on hand. The Hon'ble

Apex Court has made it clear that what the Supreme

Court cannot do, in exercise of its plenary powers under

Article 142 of the Constitution of India, the High Court

under Article 226 of the Constitution of India would not

be in a position to exercise its jurisdiction in a situation

like in the present case. The Hon'ble Apex Court in

CHATTISGARH STATE ELECTRICITY BOARD Vs.

CENTRAL ELECTRICITY REGULATORY COMMISSION AND

OTHERS reported in (2010) 5 SCC 23 while considering

similar fact situation arising from Section 125 of the

Electricity Act, wherein limitation of 60 days is

prescribed for filing appeal and if not filed within 60

days, could allow it to be filed within a further period

not exceeding 60 days, if sufficient cause is shown for

such delay. At paragraphs 25 and 26 it is held as

follows :-

"25. Section 125 lays down that any person aggrieved by any decision or order of the Tribunal can file an appeal to this Court within 60 days from the date of communication of the decision or order of the Tribunal. Proviso to Section 125 empowers this Court to entertain an appeal filed

within a further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within the initial period of 60 days. This shows that the period of limitation prescribed for filing appeals under Sections 111(2) and 125 is substantially different from the period prescribed under the Limitation Act for filing suits etc. The use of the expression `within a further period of not exceeding 60 days' in Proviso to Section 125 makes it clear that the outer limit for filing an appeal is 120 days. There is no provision in the Act under which this Court can entertain an appeal filed against the decision or order of the Tribunal after more than 120 days.

26. The object underlying establishment of a special adjudicatory forum i.e., the Tribunal to deal with the grievance of any person who may be aggrieved by an order of an adjudicating officer or by an appropriate commission with a provision for further appeal to this Court and prescription of special limitation for filing appeals under Sections 111 and 125 is to ensure that disputes emanating from the operation and implementation of different provisions of the Electricity Act are expeditiously decided by an expert body and no court, except this Court, may

entertain challenge to the decision or order of the Tribunal. The exclusion of the jurisdiction of the civil courts (Section 145) qua an order made by an adjudicating officer is also a pointer in that direction".

17. In the instant case, as stated above the impugned

order was passed on 29.06.2020 whereas the present

writ petition is presented on 17.12.2021. The creditors

i.e., M/s. Kenstream Ventures and M/s. Purvankara

Limited had filed I.A.Nos.58 and 59 of 2021 before the

1st respondent-NCLT against the order rejecting their

request to reconstitute the committee of creditors.

Against which order, the creditors named above filed

Appeals bearing Nos.237 and 241 of 2021 before the

NCLAT. Only thereafter as an after thought, the

petitioner is before this Court in this writ petition under

Article 226 of the Constitution of India.