Telangana High Court
Anandram Sarda And Associates vs Union Of India on 3 March, 2025
THE HON'BLE THE ACTING CHIEF JUSTICE SUJOY PAUL
AND
THE HON'BLE SMT. JUSTICE RENUKA YARA
WRIT APPEAL Nos.122, 129 and 139 of 2025
COMMON JUDGMENT:
(Per the Hon'ble the Acting Chief Justice Sujoy Paul)
Sri P.Indra Prakash, learned counsel for the appellant;
Sri B. Mukherjee, learned counsel representing Sri Gadi Praveen
Kumar, learned Deputy Solicitor General of India, appearing for
respondent No.1; and Sri S.Ravi, learned Senior Counsel
appearing for M/s. R.S. Associates, for respondent No.4.
2. Heard on admission.
3. These intra court appeals assail the similar orders and
therefore on the joint request of the parties, the appeals are
analogously heard.
4. The appellant/aggrieved auditor (writ petitioner) takes
exception to the orders of the learned Single Judge in
W.P.No.40530 of 2022, dated 29.11.2024, and two other writ
petitions, whereby the learned Single Judge in view of Rule 78(2)
and (3) of the National Company Law Tribunal Rules, 2016
(hereinafter referred to as, 'the Rules') relegated the appellant to
avail the remedy before the National Company Law Tribunal
(hereinafter referred to as, 'NCLT').
5. Learned counsel for the appellant raised twofold
submissions. Firstly, the writ petitions were filed in the year 2022
and therefore, after almost two years, the appellant should not
have been relegated to avail the alternative remedy. Secondly, in
view of the judgment of the Supreme Court in M/s.Godrej Sara
Lee Ltd. v. Excise and Taxation Officer-cum-Assessing
Authority 1, the alternative remedy is not a bar for the appellant
and the writ petitions can be entertained.
6. Learned Senior Counsel for respondent No.4 supported the
impugned orders of the learned Single Judge and submitted that
the appellant, in the affidavits filed along with the writ petitions,
pleaded that it has no alternative remedy but to approach the
High Court under Article 226 of the Constitution of India. When
respondent No.4 entered appearance and brought it to the notice
of the learned Single Judge that there exists a statutory remedy,
the appellant was rightly relegated to the appropriate forum.
( 2023) 1 SCC 443
7. The parties have confined their arguments to the extent
indicated above and no other point is pressed.
8. It is not the case of the appellant that it did not have remedy
under Rule 78(2) and (3) of the Rules before the NCLT. The
appellant has made an incorrect statement in the affidavits filed in
support of the writ petitions that it had no alternative remedy but
to approach the High Court. When it was pointed out after
appearance of the other side, the writ Court relegated the
appellant to avail the said remedy.
9. So far the judgment of the Supreme Court in M/s.Godrej
Sara Lee Ltd. (supra) is concerned, it distinguishes between
'maintainability' and 'entertainability'. Every petition which is
maintainable is not necessary to be entertained. The Supreme
Court in Whirlpool Corporation v. Registrar of Trade Marks,
Mumbai 2, opined that despite availability of statutory remedy, a
petition can be entertained in certain circumstances including
1) violation of principles of natural justice, 2) if order is passed by
an authority having no jurisdiction, 3) constitutionality of a
provision is under challenge etc. The said judgment was again
2 (1998) 8 SCC 1
considered by the Supreme Court in U.P. State Spinning Co. Ltd.
v. R.S. Pandey and Another 3 and it was opined as under:-
"17. ...But normally, the High Court should not
entertain writ petitions unless it is shown that there is
something more in a case, something going to the root
of the jurisdiction of the officer, something which would
show that it would be a case of palpable injustice to the
writ petitioner to force him to adopt the remedies
provided by the statute...."
10. The Supreme Court in its recent judgment dated 10.04.2024
in the case of PHR Invent Educational Society v. UCO Bank 4,
disapproved the order of the Telangana High Court in W.P.No.5275
of 2021, dated 04.02.2022, wherein a Division Bench of this Court
entertained a Writ Petition despite availability of alternative
remedy. The Supreme Court opined that merely because a petition
is maintainable, it is not necessary to entertain a petition. It is the
discretion of the Court to entertain a petition and not a
compulsion. The relevant paragraph reads as under:
"15. It could thus be seen that, this Court has
clearly held that the High Court will ordinarily not
entertain a petition under Article 226 of the
Constitution if an effective remedy is available to
the aggrieved person. It has been held that this
rule applies with greater rigour in matters
involving recovery of taxes, cess, fees, other types
of public money and the dues of banks and other
financial institutions. The Court clearly observed
(2005) 8 SCC 264
(2024) 4 S.C.R. 541
that, while dealing with the petitions involving
challenge to the action taken for recovery of the public
dues, etc., the High Court must keep in mind that the
legislations enacted by Parliament and State
Legislatures for recovery of such dues are a code unto
themselves inasmuch as they not only contain
comprehensive procedure for recovery of the dues but
also envisage constitution of quasi-judicial bodies for
redressal of the grievance of any aggrieved person. It
has been held that, though the powers of the High
Court under Article 226 of the Constitution are of
widest amplitude, still the Courts cannot be oblivious of
the rules of self-imposed restraint evolved by this
Court. The Court further held that though the rule of
exhaustion of alternative remedy is a rule of
discretion and not one of compulsion, still it is
difficult to fathom any reason why the High Court
should entertain a petition filed under Article
226 of the Constitution."
(Emphasis Supplied)
11. In the instant case, it was not argued that the impugned
orders before the writ Court were passed by incompetent
authority. It is also not argued that if the appellant is relegated to
avail the alternative remedy, it will cause any palpable injustice to
it. In fact, the appellant approached the writ Court with an
incorrect statement that there exists no alternative remedy.
12. In this backdrop, merely because the writ petitions remained
pending for about two years and upon entertaining the objection
of other side, the appellant is relegated to avail the said remedy,
the appellant alone must be blamed for the same. If the appellant
would have apprised the Court at the time of admission itself that
there exists an alternative remedy, the Court could have taken an
informed decision at that point of time itself whether the appellant
is to be relegated to the said remedy. After having suppressed the
said fact, it is no more open to the appellant to highlight the
grievance about the same.
13. In the interest of justice, while upholding the orders of the
learned Single Judge, we deem it proper to observe that if the
appellant files such applications before NCLT as observed by the
learned Single Judge within three weeks from today, the said
applications be decided on merits and shall not be dismissed on
the ground of delay.
14. Accordingly, the writ appeals are disposed of. No order as to
costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________
SUJOY PAUL, ACJ
__________________________
RENUKA YARA, J
03.03.2025
sa/vs
THE HON'BLE THE ACTING CHIEF JUSTICE SUJOY PAUL
AND
THE HON'BLE SMT. JUSTICE RENUKA YARA
WRIT APPEAL Nos.122, 129 and 139 of 2025
(Per the Hon'ble the Acting Chief Justice Sujoy Paul)
03.03.2025
sa/vs
