TMI Blog2018 (12) TMI 1816X X X X Extracts X X X X X X X X Extracts X X X X ..... sion Petition Nos.3278, 4028, 4029 and 4065 of 2017 - - - Dated:- 21-12-2018 - Mr.Justice S.Manikumar and Mr.Justice Subramonium Prasad, JJ. For Petitioner: Mr.Naveen Kumar Murthi, Mr.M.Aravind Subramaniam COMMON ORDER Subramonium Prasad, Instant Civil Revision Petitions are directed against an order, dated 28/8/2017, 11/7/2017, 24/7/2017 and 27/7/2017, passed by the National Company Law Tribunal, Chennai, in CP/536/(IB)/CB/2017, TCP/307/IB/2017, TCP/306/IB/2017 and TCP/ 408/(IB)/2017, respectively. Since all the Revision Petitions raise a common question regarding the maintainability of the Revision Petitions under Article 227 of Constitution of India, in the light of an Appellate remedy available to the petitioners under Section 61 of the Insolvency and Bankruptcy Code, 2016, all the Revision Petitions were heard together with the consent of the parties and a common order is being passed in all the Revision Petitions. 2. Facts in C.R.P.No.3278 of 2017 are as follows:- a. The Revision Petitioner approached the respondent, to supply Facility Security Solution Products. Supply terms were finalised and verbal requests for supply of Facility Security Soluti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olvency and Bankruptcy Board of India (IBBI) for recommending the name of an IRP. Therefore, the Registry is directed to make a reference to IBBI for recommending the name of an IRP. c. Aggrieved against the abovesaid order, M/s. Infonet Asia Private Limited, has filed C.R.P.No.3278 of 2017. d. When the matter came up for hearing, on 6/9/2017, this Court issued notice to the respondent, returnable in two weeks and further, directed the petitioner, to deposit a sum of ₹ 3,00,000/- (Rupees Three lakhs only), on the payment of which, this Court, stayed the operation of the order, dated 28/8/2017, passed in CP/536/(IB)/CB/2017. 3. Facts in C.R.P.No.4028 of 2017 are as follows:- a. First respondent Company, in C.R.P.(PD) No.4028 of 2017 had proposed, to construct a multistoried residential apartments, in the name of JIN Naksatra and Jain Palm Meadows, for which Electrification was executed by the petitioner herein. Work orders were issued. Petitioner herein submitted a bill of ₹ 8,97,665/-, which was not honoured. b. A petition for winding up has been filed under the Companies Act, 1956, against the petitioner. On the advent of the Insolvency and Bankruptcy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent, to file counter, within seven days, thereafter. Counsel for the petitioner was further directed to file an affidavit and bank statement, as per Section 9 (3) (b) (c) of Insolvency and Bankruptcy Code, 2016. On 21/6/2017 and 11/7/2017, extension of time was granted to the petitioner to serve copy of the affidavit and other documents to the other side and also to comply the statutory requirements. c. Since no document has been filed, vide, order, dated 24/7/2017, the National Company Law Tribunal, Chennai, passed an order, and the same reads as under:- Counsel for the petitioner present and submitted that he has not filed the affidavit and bank statement under Section 9 (3) (b) (c) and other required statutory formalities to be complied as per IB Code, 2016. In view of the Notification, dated 29/6/2017 issued by the Ministry of Corporate Affairs, the matter stands abated. d. Being aggrieved, M/s. Satheeshlim Engineering Industries, has filed instant C.R.P.No.4029 of 2017. 5. Facts in C.R.P.No.4065 of 2017 are as follows:- a. AKMG Alloys Private Limited/petitioner had filed a winding up petition, under Section 433 (e) and (f) r/w. 434 (1) (a) and 435 (1) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days. (3) An appeal against an order approving a resolution plan under section 31 may be filed onthe following grounds, namely:- (i) the approved resolution plan is in contravention of the provisions of any law for the time being in force; (ii) there has been material irregularity in exercise of the powers by the resolution professional during the corporate insolvency resolution period; (iii) the debts owed to operational creditors of the corporate debtor have not been provided for in the resolution plan in the manner specified by the Board; (iv) the insolvency resolution process costs have not been provided for repayment in priority to all other debts; or (v) the resolution plan does not comply with any other criteria specified by the Board. (4) An appeal against a liquidation order passed under section 33 may be filed on grounds of material irregularity or fraud committed in relation to such a liquidation order. 7. On the other hand the learned counsel for the petitioners would state that the jurisdiction of the High Court under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge. 8. This Bench has considered a similar question arising under the Companies Act, 1956, proceedings arising out of an application under Section 241 and 244 of the Companies Act dealing with oppression and mis-management in CRP.No.3739 of 2016. In that case against an interim order passed by the National Company Law Tribunal, Revision Petition under Article 227 of the Constitution of India was filed in this Court. In that case, like in the present case a preliminary objection was taken regarding the maintainability of the Revision Petition because of the Appellate remedy provided under Section 421 of the Companies Act. After examining the issue in detail, this Bench by a judgment dated 20.12.2018 refused to entertain the petition under Article 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
