2009 (7) TMI 770 - HC - Companies Law

Interim injunction orders - whether without calling for the records from the 1st respondent and without disclosing their defence, the 2nd respondent is not at all entitled to raise the plea of maintainability in the writ petition on the ground of availability of alternative remedy? Held that - In this case not only the petitioner was given sufficient opportunity he was also given the order copy of the 1st respondent, which the 1st respondent was not obliged, according to the 2nd respondent. Therefore, having regard to the fact that alternative remedy is available to the petitioner and that alternative remedy is effective and efficacious as the Securities Appellate Tribunal is presided over by a retired Judge of High Court and two persons, having full expertise in respect of securities and further appeal remedy is provided to the Hon ble Supreme Court against the decision of the Tribunal, the present writ petition filed by the petitioner cannot be entertained and hence, it is dismissed. Consequently, connected Miscellaneous Petition is also dismissed

Issues Involved:
1. Availability of alternative statutory remedy.
2. Violation of principles of natural justice.
3. Maintainability of the writ petition.

Detailed Analysis:

1. Availability of Alternative Statutory Remedy:

The primary issue raised by the respondents was the availability of a statutory appeal under the Securities and Exchange Board of India Act, 1992, specifically under Regulation 46, which allows an appeal to the Securities Appellate Tribunal. The respondents argued that the writ petition should not have been entertained due to the existence of this alternative remedy. The court acknowledged the existence of the statutory appeal and emphasized that the availability of an alternative remedy is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. However, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy.

The court cited the judgment of the Hon'ble Supreme Court in *State of Uttar Pradesh v. Uttar Pradesh Rajaya Khanki Vikas Nigam Sangharsh Samiti* [2008] 12 SCC 675, which held that even if alternative remedy is available, it does not bar the maintainability of a writ petition. The court concluded that it could entertain the plea of the respondents regarding the maintainability of the writ petition on the ground of availability of alternative remedies.

2. Violation of Principles of Natural Justice:

The petitioner argued that the writ petition is maintainable despite the availability of an alternative remedy because the impugned order was passed in violation of the principles of natural justice. The petitioner contended that the order was passed without giving him an opportunity to submit his argument, and the matter was heard by one respondent but decided by another without considering his objections.

The court examined the principles of natural justice, which include "No Man shall be Judge in his own case" and "Audi Alteram Partem" (no one should be condemned unheard). It was noted that the petitioner was given an opportunity to make submissions, and his objections were considered before the impugned order was passed. The court referred to the case of *Union of India v. Tulsiram Patel* AIR 1985 SC 1416, which elaborated on the elements of natural justice.

The court found that the petitioner was given sufficient opportunity to represent his case, and the impugned order was passed after considering his submissions. Therefore, the argument that the principles of natural justice were violated was not accepted.

3. Maintainability of the Writ Petition:

The court considered whether the writ petition was maintainable in light of the availability of an alternative remedy. The petitioner argued that the availability of an alternative remedy is only a rule of discretion and not one of compulsion. The court referred to several judgments, including *Whirlpool Corpn. v. Registrar of Trade Marks* AIR 1999 SC 22 and *Dhampur Sugar Mills Ltd. v. State of U.P.* AIR 2007 SCW 6072, which established that the High Court can entertain a writ petition in certain contingencies, such as enforcement of fundamental rights, failure of principles of natural justice, or orders passed without jurisdiction.

The court concluded that the petitioner had not disclosed the availability of the statutory appeal in his affidavit, which could have influenced the court's decision to entertain the writ petition initially. The court also referred to the judgment in *U.P. State Spinning Co. Ltd. v. R.S. Pandey* 2005 (8) SCC 264, which emphasized that writ petitions should not be entertained when statutory remedies are available unless exceptional circumstances are made out.

The court dismissed the writ petition, holding that the petitioner had an effective and efficacious alternative remedy available through the Securities Appellate Tribunal, and further appeal to the Hon'ble Supreme Court was also provided. Consequently, the connected Miscellaneous Petition was also dismissed, and no costs were awarded.

← Previous Next →