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2018 (5) TMI 576 - HC - Companies LawBreach of contract - jurisdiction of court - alternative remedy of statutory appeal - petitioner-Company has availed credit facilities from Bank Consortium headed by respondent no.4, i.e., State Bank of India but failed to make payment as per the financial discipline laid-down between the parties and there were efforts for restructuring of the petitioner-Company’s loan account - Held that:- The petitioners cannot be heard to say that writ jurisdiction is the only remedy merely because they have chosen to add some new reliefs or the respondents in the writ petition. There is nothing on record to suggest that the petitioners have ever approached the State of Madhya Pradesh for the release of the due amount of alleged subsidy hence they cannot spring surprise on the Ministry of Textiles or State of Madhya Pradesh by seeking a writ of mandamus without even once agitating the matter before those agencies. Similarly, the question whether RBI guidelines have been followed or consciously violated by the SBI, is also essentially a question of fact which can be effectively adjudicated by the learned Appellate Tribunal. Assuming that there is some merit in the petitioners’ contention that all these issues were raised before the Adjudicating Authority and the same have not been decided on merits, yet it would not be a sufficient ground to entertain the writ petition. There is a sea difference between ‘erroneous exercise of jurisdiction’ or ‘lack of jurisdiction’ in a Tribunal. The erroneous or failure to exercise jurisdiction by a Tribunal is a ground which can be effectively taken before the Appellate Authority. It appears to us that the petitioners cannot be heard to say that notwithstanding the powers expressly conferred under Section 60(5) of the Code, the NCLT lacks jurisdiction to entertain or dispose of the issues raised by them. Undisputedly, equally efficacious and effective remedy of appeal is available under Section 61 of the Code to the petitioners. More-so, the petitioner-Company had submitted to the jurisdiction of Adjudicating Authority and in that process, continued to appear and associate before the Adjudicating Authority during 15 effective hearings in a long span of 6 months. Unfortunately, instead of approaching the National Company Law Appellate Tribunal under Section 61 of the Code, the petitioner-Company has now preferred to invoke the writ jurisdiction of this Court. With a view to enable the petitioners to avail the alternative remedy of statutory appeal, as directed above, we deem it appropriate to direct that the ‘Interim Resolution Professional’ appointed by the Adjudicating Authority vide order dated 19.04.2018 shall not take over management of the first petitioner- Company till 15.05.2018 so as to meanwhile enable the petitioners to file their statutory appeal.
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