Kerala High Court
Kosamattam Finance Ltd vs Mango Meadows Agricultural ... on 8 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 8TH DAY OF JUNE 2022 / 18TH JYAISHTA, 1944
WA NO. 508 OF 2022
AGAINST THE ORDER IN WP(C) 7444/2022 OF HIGH COURT OF KERALA
APPELLANT:
KOSAMATTAM FINANCE LTD
KOSAMATTAM MATHEW K CHERIAN BUILDINGS, MC ROAD KOTTAYAM
686 001 REPRESENTED BY ITS DEPARTMENT HEAD OF CREDIT
DEPARTMENT, T.P. RAMACHANDRAN NAIR, AGED 69 YEARS, S/O
K.R. PADMANABHA PILLAI, RESIDING AT MIDHILA HOUSE,
THELLAKOM.P.O, KOTTAYAM, PIN - 686 630.
BY ADVS.
JOLLY JOHN
Liza Meghan Cyriac
RESPONDENTS:
1 MANGO MEADOWS AGRICULTURAL PLEASURE LAND PVT. LTD
REGISTERED OFFICE AT BUILDING NO. XV/175A,
MANGO MEADOWS, AYAMKUDY P.O., KADATHURUTHI,
KOTTAYAM - 686 613 REPRESENTED BY ITS
MANAGING DIRECTOR N.K. KURIAN., PIN - 686 613.
2 UNION OF INDIA
MINISTRY OF ENVIRONMENT & FOREST, 2ND FLOOR,
AGNI BLOCK, INDIRA PARYAVARAN BHAWAN,
JORBAGH ROAD, NEW DELHI - 110 003
REPRESENTED BY ITS SECRETARY, PIN - 110 003.
3 STATE OF KERALA
REPRESENTED BY GOVERNMENT PLEADER,
HIGH COURT OF KERALA, PIN - 682 031.
4 KERALA STATE BIO DIVERSITY BOARD
BELHAVEN E ST, BELHAVEN GARDENS, NANTHANCODU,
THIRUVANANTHAPURAM - 695 003 REPRESENTED BY ITS
CHAIRMAN, PIN - 695 003.
W.A.No.508 of 2022
2
5 MAHATMA GANDHI UNIVERSITY
PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM -
686 560 REPRESENTED BY ITS REGISTRAR, PIN - 686
560.
6 KERALA FORESTS & WILDLIFE DEPARTMENT,
HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM -
695 014 REPRESENTED BY SECRETARY, PIN - 695 014.
7 KERALA FINANCIAL CORPORATION (KFC)
VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 033
REPRESENTED BY CHAIRMAN/MANAGING DIRECTOR, PIN -
695 033.
8 DEPARTMENT OF FINANCE
1ST FLOOR, MAIN BLOCK, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001 REPRESENTED BY
SECRETARY, PIN - 695 001.
9 KADUTHURUTHY GRAMA PANCHAYATH
KADUTHURUTHY P.O., KOTTAYAM - 686 604
REPRESENTED BY SECRETARY, PIN - 686 604.
10 NATIONAL COMPANY LAW TRIBUNAL
KOCHI BENCH, COMPANY LAW BHAVAN, BMC ROAD,
THRIKKAKKARA P.O., KAKKANAD, KOCHI - 682 021
REPRESENTED BY OFFICE MANAGER, PIN - 682 021.
BY ADVS.
ADV.GEORGE POONTHOTTAM (SR.)
ASSISTANT SOLICITOR GENERAL SRI.S.MANU
ADV. VENUGOPAL.M.R
ADV.NISHA GEORGE
ADV.DHANYA P.ASHOKAN(K/001671/2000)
ADV.S. MUHAMMAD ALIKHAN(K/000644/2020)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.No.508 of 2022
3
JUDGMENT
Dated this the 8th day of June, 2022
S.Manikumar, C.J.
Being aggrieved by the interim order dated 07.04.2022
in W.P.(C)No.7444 of 2022, instant writ appeal is filed on
various grounds.
2. Record of proceedings shows that when the writ
appeal came up for hearing, on 22.04.2022, a Hon'ble Division
Bench of this court has passed the following order:
"Admitted.
Smt.Nisha George takes notice for the first
respondent. The learned ASGI takes notice for the second
respondent.The learned Government Pleader takes notice
for respondent 3, 6 and 8. Issue notice to respondents 4, 5,
7, 9 and 10.
Post on 20.5.2022.
On a consideration of the pleadings and materials on
record, we are satisfied that the appellant is entitled to an
interim order. Hence we restrain the first respondent from
alienating or creating any charge over any property directly
or indirectly owned or managed by the first respondent till
the date of next hearing."
W.A.No.508 of 2022
3. Before the writ court, the prayers sought for are as
follows:
"i. Issue a writ declaring that Section 7 of the Insolvency and
Bankruptcy Code, 2016 and the form appended thereto
are unconstitutional in the absence of conferring of
power on the adjudicating authority to adjudicate on an
issue rather than passing an order appointing an
insolvency professional in a mechanical manner if the
application is in the prescribed manner;
ii. To issue of a writ of mandamus or any other appropriate
writ order or direction to the 2nd respondent to consider
Exhibit-P9 as expeditiously as possible and at any rate
within a period of 2 weeks in view of the peculiar nature
of the activity undertaken by the Petitioner;
iii. To pass an order staying all further proceedings before
the 10th respondent Tribunal in Exhibit-P7, pending
consideration of Exhibit- P9."
4. Having regard to the material on record and after
hearing the learned counsel for the parties, while issuing
notice to the concerned, vide interim order dated 15.03.2022
in W.P.(C)No.7444 of 2022, a learned single Judge has passed
the following order:
"Admit.
W.A.No.508 of 2022
Assistant Solicitor General of India takes notice
for the 1st respondent. Government Pleader takes
notice for respondents 2, 5 and 7. Standing Counsel
takes notice for respondents 4, 6 and 8. Issue urgent
notice by speed post to respondents 3, 9 and 10.
Learned counsel for the petitioner submitted
that pursuant to the legislative Assembly Minutes
recorded in Ext.P10, made in the presence of the Chief
Minister, the matter is to be discussed and decided in
consultation with the 6th respondent- Kerala Financial
Corporation. In the meanwhile if an interim resolution
professional is appointed, the petitioner will be put to
irreparable loss and injury.
In the circumstances, there will be an interim
order staying all further proceedings pursuant to
Ext.P7, for a period of one month."
5. When the matter came up on 07.04.2022, the said
interim order has been extended to 18.05.2022. Registry has
been directed to post the matter on 18.05.2022. It is against
this order dated 07.04.2022, instant writ appeal is filed.
6. Though Mr.Jolly John, learned counsel for the
appellant made submissions on the grounds raised, going
through the interim orders dated 15.03.2022 and 07.04.2022,
we are of the view that the above said orders are only interim
W.A.No.508 of 2022
orders and the writ court has not finally decided the case on
merits.
7. It is trite law that the above said interim orders can
always be modified or vacated by filing necessary applications
before the writ court, which course has not been adopted by
the appellant.
8. Though Mr.Jolly John, learned counsel for the
appellant submitted that the writ court would be approached
for seeking for modification or vacation of the interim orders
dated 15.03.2022 and 07.04.2022, keeping in tact the interim
order dated 22.04.2022 passed in the instant writ appeal, we
are not inclined to accept the said suggestion for the reason
that allowing such prayer would be amounting to entertaining
the writ appeal against an order which has not become final.
Order passed in the writ appeal is rescinded.
9. In that view of the matter, we are inclined to permit
the appellant to seek for appropriate modification or vacating
of the interim orders dated 15.03.2022 and 07.04.2022 posted
for final disposal of W.P.(C)No.7444 of 2022 filed for the
W.A.No.508 of 2022
prayers stated supra.
10. That apart, one of the contentions raised in this
appeal is about maintainability of the writ petition which also
can be taken up before the writ court, as a preliminary issue.
Accordingly, the writ appeal is disposed of.
Pending interlocutory applications, if any, shall stand
closed.
Sd/-
S.Manikumar
Chief Justice
Sd/-
Shaji P.Chaly
Judge
vpv
