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2022 (2) TMI 1255 - HC - Insolvency and BankruptcyMaintainability of the Civil Revision Petition - as per Section 61 of the Insolvency and Bankruptcy Code, 2016, the petitioner has got remedy only before the National Company Law Appellate Tribunal - petitioner submitted that inspite of the provisions of Section 61 of the Insolvency and Bankruptcy Code, 2016, this Court can entertain the Civil Revision Petition filed under Article 227 of the Constitution - HELD THAT - It is clear that as per Section 61 of the Insolvency and Bankruptcy Code, 2016, the petitioner has got remedy by way of an appeal before the National Company Law Appellate Tribunal. However, without exhausting the appeal remedy available to them, the petitioner has filed the Civil Revision Petition under Article 227 of the Constitution. On a perusal of the recent judgments of the Apex Court in AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE AND ANOTHER VERSUS MATHEW K.C. 2018 (2) TMI 25 - SUPREME COURT , it is clear that when an appeal remedy is provided under the Act, the aggrieved party should exhaust the said remedy by filing an appeal before the Appellate Forum and the Writ Petition/Civil Revision Petition filed by them under Articles 226/227 of the Constitution is not maintainable. When the petitioner can raise all the grounds available to them under law before the Appellate Forum, the filing of the Civil Revision Petition under Article 227 cannot be entertained. The Civil Revision Petition filed under Article 227 of the Constitution challenging the order passed by the National Company Law Tribunal is not maintainable - the Civil Revision Petition is dismissed as not maintainable.
Issues Involved:
1. Maintainability of the Civil Revision Petition under Article 227 of the Constitution of India. 2. Availability of an alternative remedy under Section 61 of the Insolvency and Bankruptcy Code, 2016. 3. Jurisdiction of the High Court under Articles 226 and 227 of the Constitution. 4. Distinction between judicial and administrative orders for the purpose of writ jurisdiction. Issue-wise Detailed Analysis: 1. Maintainability of the Civil Revision Petition under Article 227: The primary issue raised by the respondent was the maintainability of the Civil Revision Petition under Article 227 of the Constitution. The respondent argued that, as per Section 61 of the Insolvency and Bankruptcy Code, 2016, the petitioner should have approached the National Company Law Appellate Tribunal (NCLAT) instead. The court referred to multiple judgments, including the Supreme Court's decision in Embassy Property Developments Private Limited vs. State of Karnataka, which emphasized that the IBC is a complete code in itself, providing a three-tier mechanism for dealing with insolvency resolution, and that the High Court should not interfere under Articles 226/227 when a statutory alternative remedy is available. 2. Availability of an Alternative Remedy: The court noted that the petitioner had a remedy available under Section 61 of the IBC, which allows for an appeal to the NCLAT. The court cited various precedents, including ICICI Bank Limited vs. Umakanta Mohapatra, where the Supreme Court held that writ petitions are not maintainable when an effective alternative remedy is available. The court reiterated that the petitioner should have exhausted the appeal remedy before approaching the High Court. 3. Jurisdiction of the High Court under Articles 226 and 227: The petitioner's counsel argued that the High Court's jurisdiction under Articles 226/227 could not be wholly excluded and that the decisions of the Tribunal are subject to the High Court's jurisdiction. The counsel relied on L. Chandra Kumar vs. Union Bank of India, where the Supreme Court held that all decisions of Tribunals are subject to the High Court's writ jurisdiction. However, the court found that this argument did not hold in the present case due to the specific alternative remedy provided under the IBC. 4. Distinction between Judicial and Administrative Orders: The court examined the distinction between judicial and administrative orders for the purpose of writ jurisdiction. It referred to the Kerala High Court's decision in Sulochana Gupta vs. RBG Enterprises Private Limited, which clarified that orders by courts or tribunals could be challenged under Article 227, while administrative orders could be challenged under Article 226. The court concluded that the impugned order was judicial in nature and, therefore, the appropriate remedy was to file an appeal under Section 61 of the IBC. Conclusion: The court dismissed the Civil Revision Petition under Article 227 as not maintainable, emphasizing the need to exhaust the alternative remedy provided under the IBC. The court reiterated the principle that when an effective statutory remedy is available, the High Court should refrain from exercising its jurisdiction under Articles 226/227. Consequently, the connected miscellaneous petition was also closed.
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