P.Jayagovind vs Bijoy Prabhakaran Pulipra
2021 Latest Caselaw 5320 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

              THE HONOURABLE MR.JUSTICE N.NAGARESH

   MONDAY, THE 15TH DAY OF FEBRUARY 2021/26TH MAGHA,1942

                    WP(C).No.1962 OF 2021(U)

PETITIONER:

              P.JAYAGOVIND, AGED 57, S/O. GOPINATH,
              C-061, DLF NEW TOWN HEIGHTS,
              SEAPORT AIRPORT ROAD, OPP. KOCHI DOORDARSHAN,
              KAKKANAD, COCHIN-682 030.

              BY ADVS.
              SRI.DINESH R.SHENOY
              SRI.EBIN MATHEW
              SRI.P.ROHIT PREMANANDAN SHENOY

RESPONDENTS:

     1        BIJOY PRABHAKARAN PULIPRA
              (RESOLUTION PROFESSIONAL)
              JBP & ASSOCIATES, ARTIS HOUSE,
              GROUND FLOOR TC-11/789(1),
              PLAMOODU-NALANDA JUNCTION ROAD,
              NANTHANCODE, KOWDIAR P.O., KERALA-695 003.

     2        THE PVS MEMORIAL HOSPITAL PVT. LTD.,
              KALOOR, KOCHI-682 017.

ADDL. 3       P.V.MINI, AGED 57 YEARS,
              D/O.P.V.CHANDRAN, RESIDING AT A-21,
              TRITVAM, CHATIYATH ROAD,
              ERNAKULAM - 682 018.

              (ADDL.R3 IS IMPLEADED, SUBJECT TO THE DECISION
              ON THE MAINTAINABILITY OF THE WRIT PETITION AS
              PER ORDER DATED 5/2/21 IN I.A.1/2021 IN
              WP(C)1962/2021.)

              R1-R2 BY ADV. SRI.GEORGE POONTHOTTAM (SR.)
              R1-R2 BY ADV. SRI.P.JINISH PAUL
              ADDL.R3 BY ADV. SRI.MILLU DANDAPANI

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.1962/2021
                                :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 15th day of February, 2021

The petitioner was an employee of the 2nd

respondent-Company. The National Company Law Tribunal

(NCLT) commenced Corporate Insolvency Resolution Process

of the Company. The 1 st respondent was appointed as

Resolution Professional. The 1st respondent issued

notification inviting claims. The petitioner submitted a claim

for `3,09,45,200/- as operational creditor.

2. The 1st respondent published a final list of creditors

on 20.10.2020. The petitioner was not given any notice or

heard in person before publishing the final list. The 1 st

respondent rejected the claim of the petitioner holding that his

claim is "excess claim". The petitioner thereupon approached

the NCLT filing MA No.177/KOB/2020 under Section 60(5) of

the Insolvency and Bankruptcy Code, 2016. On 14.12.2020,

as per Ext.P3, the NCLT directed the petitioner to submit WP(C) No.1962/2021

documents sought for by the 1st respondent within two weeks.

The Resolution Professional was directed to explore all

possibilities to settle the claim of the petitioner. The NCLT

directed the Resolution Professional to give a reply to the

petitioner before finalisation of the resolution plan.

3. It is the case of the petitioner that the petitioner

submitted requisite materials on 28.12.2020, before the expiry

of two weeks period granted by the Tribunal. The said letter of

the petitioner was supported by necessary documents.

However, the 1st respondent issued Ext.P5 rejecting the

petitioner's application on the very next day. Thereafter, the

petitioner filed Ext.P9 Miscellaneous Application before the

NCLT on 05.01.2021 seeking to set aside Ext.P5. Diary

number was given to the Miscellaneous Application filed by

the petitioner. However, in spite of passage of 18 days, the

NCLT did not number Ext.P9 Miscellaneous Application. In

the meanwhile, the petitioner noted that proceedings were

pending before the NCLT for approval of the resolution plan

submitted by the 1st respondent.

WP(C) No.1962/2021

4. The petitioner submits that his counsel contacted

the registry of NCLT sending an e-mail seeking permission to

link up with the video conferencing by the NCLT in order to

prosecute Ext.P9 Miscellaneous Application. But, the e-mail

was not responded to. The petitioner's counsel again, on

18.01.2021, contacted the registry of NCLT over phone to get

the link to appear and make submissions on behalf of the

petitioner. The request was, however, not considered by the

Registry of the NCLT.

5. Since in spite of the several attempts, the petitioner

could not get a posting of his Ext.P9 Miscellaneous

Application, the petitioner approached this Court filing this writ

petition seeking to direct the NCLT, Kochi Bench, to take up

and hear Ext.P9 Miscellaneous Application and to keep in

abeyance all further proceedings in IA(IBC)/13/2021 till the

disposal of Ext.P9 Miscellaneous Application.

6. When this writ petition came up for admission, this

Court passed an interim order on 25.01.2021 directing the

NCLT, Kochi Bench to consider Ext.P9 MA before passing WP(C) No.1962/2021

orders in IA(IBC)/13/2021 in TIBA/II/KOB/2019 and

IBA/28/KOB/2019 which stands posted on 28.01.2021.

7. The 1st respondent-Resolution Professional

appeared and defended the writ petition. The 1st respondent

stated that NCLT passed order on 16.10.2019 to commence

Corporate Insolvency Resolution Process (CIRP). A meeting

of the Committee of Creditors was conducted after obtaining

permission from NCLT. As regards the claim of the petitioner,

the 1st respondent submitted that the petitioner's claim was for

₹3,09,45,200/-. After verifying his claims based on records, it

was not admitted and the decision was published in the

website of the Resolution Professional. The 1st respondent

contended that if the petitioner has any grievance, he has to

agitate it before the NCLT or NCLAT. This Court has no

jurisdiction to entertain this writ petition when the proceedings

are pending before the NCLT.

8. The learned counsel for the 1 st respondent

submitted that the Insolvency and Bankruptcy Code, 2016

being a complete Code in itself, it does not provide for any WP(C) No.1962/2021

room for challenging the orders of NCLT, otherwise than in a

manner prescribed by the Code itself. The learned counsel

for the 1st respondent further urged that only if the case falls

under the category of inherent lack of jurisdiction of NCLT, this

Court can intervene in the matter under Article 226 of the

Constitution of India.

9. The learned counsel for the 1 st respondent

submitted that in deference to the interim orders passed by

this Court, the NCLT may consider the Miscellaneous

Application filed by the petitioner. Even if the NCLT considers

the Miscellaneous Application filed by the petitioner in

deference to the directions of this Court, that will be illegal and

improper. Therefore, the interim order passed by this Court is

liable to be revoked and this writ petition is liable to be

dismissed relegating the petitioner to NCLAT.

10. Relying on the judgment of the Apex Court in

Embassy Property Developments Pvt. Ltd. v. State of

Karnataka and others [2019 (17) SCALE 37], the learned

Senior Counsel appearing for the 1st respondent contended WP(C) No.1962/2021

that one of the well recognized exceptions to the self-imposed

restraint of the High Courts, in cases where a statutory

alternative remedy of appeal is available, is the lack of

jurisdiction on the part of the statutory/quasi-judicial authority,

against whose order a judicial review is sought. Therefore, as

regards exercise of powers under Article 226 of the

Constitution of India despite availability of alternative remedy,

the law is well settled. The writ petition is therefore liable to be

dismissed.

11. The learned counsel for the 1 st respondent further

relied on the judgment of this Court in W.A. No.1083 of 2020

and argued that existence of a jurisdictional fact is sine qua

non or condition precedent to the assumption of jurisdiction by

a Court. If the jurisdictional fact does not exist, the Court or

Tribunal cannot act. In the case on hand, the matter is

pending before the NCLT which is the competent forum.

There exists no factual foundation for this Court to exercise

jurisdiction under Article 226 of the Constitution of India. In

the circumstances, this writ petition is liable to be dismissed WP(C) No.1962/2021

vacating the interim order already passed.

12. The additional 3rd respondent, who got herself

impleaded in the writ petition, contended that if any order is

passed by this Court against the petitioner, taking away his

remedy, such an order is likely to affect her also since she has

already filed a Miscellaneous Application before the NCLT

seeking to recall the resolution plan. The NCLT has to

consider the Miscellaneous Application filed by the 3rd

respondent also before the finalisation of the proceedings.

13. I have heard the learned counsel for the petitioner,

learned Senior Counsel appearing for the 1 st respondent-

Resolution Professional and the learned counsel appearing for

the additional 3rd respondent.

14. This Court, while entertaining this writ petition,

found that the petitioner had approached the NCLT filing

Ext.P9 Miscellaneous Application. The petitioner was

aggrieved by the decision of the Resolution Professional

declining his claim in its entirety. The NCLT directed the

petitioner to file necessary documents before the Resolution WP(C) No.1962/2021

Professional within two weeks and directed the Resolution

Professional to consider those documents. The petitioner

submitted the requisite documents on the last day of the two

weeks period. However, the 1 st respondent found that the

representation received from the petitioner is beyond the

period granted by the NCLT. The Resolution Professional

also held that he had finalised the plan even before receipt of

the documents from the petitioner.

15. This Court finds that when the NCLT directed the

Resolution Professional to consider the documents submitted

by the petitioner within a period of two weeks, the Resolution

Professional, without waiting for the representation and

documents of the petitioner, proceeded to submit his final

resolution plan. The petitioner attempted to file a

Miscellaneous Application before finalisation of the Resolution

plan.

16. The learned counsel for the 1 st respondent would

contend that the resolution plan was approved by the

Committee of Creditors in its meeting held on 26.12.2020, WP(C) No.1962/2021

which was even before the Resolution Professional issuing

Ext.P5 order. In the circumstances, the 1 st respondent stated

that he is not in a position to consider the claim of the

petitioner since it will be highly detrimental to the entire

resolution process. It is to be noted that the petitioner's

specific case was that the HR Department of the Corporate

Debtor effected downward revision of petitioner's salary

illegally. The Resolution Professional had omitted to consider

or overlooked this fact. It is in the said circumstances that the

petitioner attempted to get his grievance redressed through

the NCLT by filing Ext.P9 Miscellaneous Application.

17. In spite of the earnest efforts made by the

petitioner, the petitioner could not get his Miscellaneous

Application listed and heard by the NCLT. Without

considering his Ext.P9 Miscellaneous Application, if the NCLT

proceeds to finalise the resolution plan, it would have put the

petitioner into great difficulties. It was in the said

circumstances that this Court entertained the writ petition and

passed an interim order directing the NCLT to consider Ext.P9 WP(C) No.1962/2021

Miscellaneous Application before passing orders in IA

No.13/2021. This Court passed that order in the peculiar

circumstances of this case and the order was intended to

meet the ends of justice.

18. In the circumstances, this Court does not find any

impropriety so as to recall the interim order passed by this

Court. The limited prayer of the petitioner in this writ petition is

to direct the NCLT, Kochi Bench to hear and dispose of Ext.P9

Miscellaneous Application before the commencement of

proceedings in IA(IBC)/13/2021 in TIBA/11/KOB/2019 on its

file.

In the circumstances of the case, this Court dispose

of this writ petition confirming the interim order passed on

25.01.2021. It is made clear that this Court has not expressed

any opinion on the merits or otherwise of the claims made by

the petitioner.

Sd/-

N. NAGARESH, JUDGE

aks/15.02.2021 WP(C) No.1962/2021

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE PHOTOCOPY OF CLAIM DATED 30.10.2019 SUBMITTED BY THE PETITIONER.

EXHIBIT P2 TRUE PHOTOCOPY OF RELEVANT PAGES OF CONSOLIDATED SHEET DOWNLOADED FROM WEBSITE OF THE IST RESPONDENT.

EXHIBIT P3 TRUE PHOTOCOPY OF THE ORDER DATED 14.12.2020 IN MA NO.177/KOB/2019 ISSUED BY THE NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH.

EXHIBIT P4 TRUE PHOTOCOPY OF LETTER DATED 28.12.2020 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT.

EXHIBIT P5 TRUE PHOTOCOPY OF LETTER DATED 29.12.2020 ISSUED BY THE IST RESPONDENT REJECTING THE CLAIM OF THE PETITIONER.

EXHIBIT P6 TRUE PHOTOCOPY OF CAUSE LIST OF COURT NO.1, NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH DATED 18.1.2021.

EXHIBIT P7 TRUE PHOTOCOPY OF EMAIL DATED 16.1.2021.

EXHIBIT P8 TRUE PHOTOCOPY OF DAILY ORDERS ISSUED BY NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH IN IA(IBC)/13/2021 IN TIBA/11/KOB/2019.

EXHIBIT P9 TRUE PHOTOCOPY OF UNNUMBERED MA.NO........./2021 IN TBA/11/KOB/2019, NATIONAL COMPANY LAW TRIBUNAL, KOCHI.

EXHIBIT P10 TRUE PHOTOCOPY OF EMAIL DATED 02.02.2019 ISSUED TO THE PETITIONER FORM THE HR DEPARTMENT, PVS MEMORIAL HOSPITAL, ERNAKULAM.

WP(C) No.1962/2021

EXHIBIT P11 TRUE PHOTOCOPY OF EMAIL RECEIVED ON 07.01.2021 FROM NCLT, ERNAKULAM

EXHIBIT P12 TRUE PHOTOCOPY OF FORM 26 AS UPLOADED IN THE TRACES WEBSITE OF IT DEPARTMENT

RESPONDENTS' EXHIBITS

EXHIBIT R1(a) TRUE COPY OF THE ORDER PASSED BY THE NCLAT, NEW DELHI DATED 25.10.2019 IN COMPANY APPEAL (AT) (INSOLVENCY) NO.1130 OF 2019 EXHIBIT R1(b) TRUE COPY OF THE ORDER PASSED BY THE NCLAT, NEW DELHI DATED 03.12.2019 IN COMPANY APPEAL (AT) (INSOLVENCY) NO.1130 OF 2019 EXHIBIT R1(c) TRUE COPY OF THE ORDER PASSED BY THE NCLT, KOCHI DATED 09.12.2019 IN MA/35/KOB/2019 IN TIBA/11/KOB/2019

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