TMI Blog2019 (12) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... ns have been laid down in the said Part, which confer power on the Adjudicating Authority (the NCLT) to pass an order. There are no other provisions than those referred to by the petitioner for passing any order by the Adjudicating Authority under Part II. Sub‐section (5) of Section 60 lays down that notwithstanding anything to the contrary contained in any other law for the time being in force, the NCLT shall have jurisdiction to entertain or dispose of the matters provided therein, including those mentioned in clause (c), that is, any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under the IBC - The said provision does not empower the Adjudicating Authority to pass any order, as contemplated in Section 61(1) of the IBC, but merely confer jurisdiction on the NCLT (the Adjudicating Authority) to incidentally decide questions of facts as well, arising out of or in relation to the insolvency resolution. The said provision confers power and jurisdiction on the Adjudicating Authority to deal with such questions while deciding matters under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as granted time to file a reply within seven days as well. 4. In the impugned order, no reason was assigned as to why the belated rejoinder of the financial creditor was allowed to be filed as late as on August 14, 2019 but, in the same breath, the leave sought by the corporate debtor to file its supplementary affidavit was refused on the ground that no valid reasons were submitted. 5. This, according to the petitioner, exhibited a lack of impartial attitude on the part of the tribunal. It is argued that the cardinal rule of fair play was absent in such refusal on the part of the tribunal. 6. Learned senior counsel for the opposite party/financial creditor argues at the outset that an appeal lay under Section 61(1) of the Insolvency and Bankruptcy Code, 2016 (hereafter referred to as the IBC ). As such, as settled by various High Courts and the Supreme Court, this court ought not to have entertained or to dispose of the present application under Article 227, since an equally efficacious alternative remedy is available under the IBC. By placing reliance on the preamble of the IBC, learned senior counsel for the opposite party argues that primacy was gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of and in relation to an insolvency resolution and, as such, is covered by Section 60(5)(c) of the IBC, thus, bringing the said order within the fold of the appellable orders contemplated in Section 61(1) of the IBC. 12. In reply, learned senior counsel for the petitioner argues that Rule 55 of the NCLT Rules are not applicable to insolvency resolution proceedings under the IBC. By placing reliance on Rule 10 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as the IBC Rules ), learned senior counsel argues that the specific rules of the NCLT Rules, 2016, which are applicable to IBC Proceedings, have been referred to there. Neither in Rule 10 nor in any other Rule of the IBC Rules, does Rule 55 of the NCLT Rules find mention. As such, Rule 55 is not applicable at all to the present IBC proceeding, merely because the NCLT was designated as the Adjudicating Authority under the IBC. 13. Learned senior counsel for the petitioner, in answer to the issue of maintainability raised by the opposite party, argues that Section 61(1) specifically refers to the order of the Adjudicating Authority under Part II o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BC, as regards appellability of orders passed by the Adjudicating Authority, is to be undertaken first. 16. It is seen from Section 61(1) that the language used is, notwithstanding anything to the contrary contained under the Companies Act, 2013, any person aggrieved by the order of the Adjudicating Authority under that Part (Part II) may prefer an appeal to the National Company Law Appellate Tribunal. 17. However, in contrast, the very next Section, that is, Section 62 of the IBC provides for an appeal to the Supreme Court against an order of the NCLT to the Supreme Court, thereby creating an explicit distinction between the language of the two successive sections between the appeal preferable against the order of an Adjudicating Authority and that of the NCLT. 18. Seen in such context, it cannot be presumed that the legislature carved out such a distinction without any meaning or reason. Going through the provisions of Part II of the IBC, as rightly argued on behalf of the petitioner, specific provisions have been laid down in the said Part, which confer power on the Adjudicating Authority (the NCLT) to pass an order. There are no other provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61 (1) of the IBC reflects the intention of the Legislature and cannot be construed to be redundant. Such intention of the Legislature has to be attributed a meaning and cannot be ignored while construing the statute. 24. The judgment cited on behalf of the petitioner is besides the point, inasmuch as the said judgment lays down a distinction between alternative remedies of civil nature and other alternative remedies, which does not take away from the sanctity of the alternative remedy in any manner. 25. Even the judgment cited on behalf of the opposite party does not lay down the proposition that an alternative remedy is an absolute bar for a High Court to exercise its jurisdiction under Article 226 or Article 227 of the Constitution of India. It is well‐settled since long that, although there is no absolute bar if alternative remedies are available, if such remedies are equally efficacious, the High Court exercises a self‐imposed restriction in not frustrating the scheme of the concerned statute by interfering, but generally chooses to leave the matter for being challenged before the appropriate forum, of course, unless there is any inherent juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red, without even assigning any reason. The said modus operandi reeks of bias and a partisan approach and ought to be deprecated. 31. It may be mentioned here that the argument advanced by the opposite party as to the entertainment of the present application under Article 227 of the Constitution opening a flood gate for the litigants to come up against every order passed by the Adjudicating Authority under the IBC, is misplaced in view of the discussions made above. There are several orders which can be passed by the Adjudicating Authority under Part II of the IBC, which are appellable under Section 61(1), as referred to in the present judgment. However, in the event the order impugned does not fall within the category of such appellable orders, the principle of ubi jus ibi remedium would be squarely hit, if this court shuts its eyes to a patent perversity or jurisdictional error committed by the tribunal. 32. In the present case, the perversity occasioned by meting out a step‐motherly treatment to the parties respectively is, by itself, a sufficient ground to interfere with the impugned order. Moreover, the supplementary affidavit sought to be filed being ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
