TMI Blog2013 (9) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners therein would be directed to serve the copy of the petition to the caveators and they would be heard before passing any orders in the company petition. 4. The petitioners challenged the order dated 12th September, 2013 before this Court in writ petition bearing W.P.(C) No.5889/2013, which was listed before DB-V on 16th September, 2013 when it was adjourned to 10th October, 2013. The first prayer made in the said petition is that the order dated 12th September, 2013 passed by the Company Law Board be declared as nullity. 5. On 16th September, 2013, the Member (Judicial) of Company Law Board heard the arguments of the petitioners therein and listed the matter for arguments of the respondents therein for 25th September, 2013 and, in the meantime, directed the status quo to be maintained with respect to the shareholding, board pattern and right of call option. 6. According to the petitioners, the order dated 16th September, 2013 passed by the Member (Judicial) amounts to review of the order dated 12th September, 2013 because neither the copy of the petition was served nor the petitioners were heard before passing the order dated 16th September, 2013. It is subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leave petitions under Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice . (Emphasis supplied) 9. In Fakeerappa v. Karnataka Cement Pipe Factory, (2004) 2 SCC 473, the Supreme Court held that impleadment of the High Court of Karnataka and Supreme Court by the petitioner was held to be gross abuse of process of law. The Supreme Court held as under: 10. Before we part with the case we think it necessary to point out a somewhat shocking state of affairs which came to our notice. In the claim petition filed before the Tribunal, this Court and the High Court of Karnataka, Bangalore were impleaded as respondents for no sensible reason, and in gross abuse of process of law, though by hindsight the absurdity seems to have been set right by ordering deletion . Though these parties were given up during adjudication, it is clear that the claim petition was filed without any application of mind by the counsel concerned as to who would be proper or necessary party or even a formal party and great sense of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and of this Court in Union Public Service Commission (supra), Sat Prakash Rana (supra), R.K. Saxena (supra). The writ petition is therefore not maintainable in the present form. 14. Section 10F of the Companies Act, 1956 provides an equally efficacious remedy of an appeal against every order of Company Law Board. Petitioner No.2 submits that the remedy of appeal under Section 10F of the Companies Act is not efficacious because in the event of being unsuccessful in the appeal, there is no further statutory appeal before the Division Bench whereas against the order in this writ petition, the petitioners have remedy of Letters Patent Appeal before the Division Bench of this Court. There is no merit whatsoever in this contention as the order under Section 10F of the Companies Act is appealable before the Division Bench of this Court. However, it may be added that even assuming there was no appeal against the order passed in appeal under Section 10F that would not by itself make the remedy of appeal under Section 10F as nonefficacious. The point to be considered by this Court is whether the remedy of appeal is efficacious. Non availability of further statutory appeal would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Respondent 1 and others against the order dated 26-12-2006 passed by the State Consumer Disputes Redressal Commission (for short the State Commission ) ignoring that the statutory remedy of appeal was available to them under Section 19 of the Consumer Protection Act, 1986 (for short the 1986 Act )? xxx xxx xxx 8. Shri SanjeevAnand, learned counsel for the appellant argued that even though the exercise of power by the High Courts under Articles 226 and 227 of the Constitution is not hedged with any limitation/constraint, the Division Bench of the Delhi High Court committed serious error by entertaining the writ petition ignoring that the 1986 Act is a code unto itself and the remedy of appeal available against an order passed by the State Commission is an equally efficacious alternative remedy. 9. Shri C.S. Vaidyanathan, learned Senior Counsel appearing for Respondent 1 and Shri R.S. Suri, learned Senior Counsel appearing for pro forma Respondent 4 argued that even though their clients could have availed the remedy of appeal under Section 19 of the 1986 Act, the Divisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved: (AIR p. 1423, para 7) 7. 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. 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa [(1983) 2 SCC 433 : 1983 SCC (Tax) 131] this Court observed: (SCC pp. 440-41, para 11) 11. 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. inWolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CBNS 336 : 141 ER 486] in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has recognised some exceptions to the rule of alternative remedy. However, the proposition laid down in ThansinghNathmal v. Supt. of Taxes [AIR 1964 SC 1419] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. (Emphasis supplied) 18. On careful consideration of the contentions raised by the petitioners, this Court is of the view that the remedy of appeal under Section 10F is equally efficacious and therefore, the exercise of writ jurisdiction is not warranted in this case. This Court therefore declines to exercise writ jurisdiction in this case. 19. There is no merit whatsoever in this writ petition. For all the aforesaid reasons, the writ petition as well as the applications are dismissed. 20. Copy of this order be sent to the Company Law Board. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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