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TMI Blog2019 (9) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... l result in such an injury which cannot be rectified. Under Section 248 (5) of the Companies Act were passed by the Registrar of Companies, removing the name of the Company from the register, without passing an order under Section 248 (6) of the Act. That was a case wherein it was brought to the notice of this Court that Registrar of Companies struck off the names of the Companies, without passing any order, under Section 248 (6) of the Act. This practise was sought to be rectified by exercising the powers under Article 227 of the Constitution of India. Such is not the scenario here. Efficacious alternate remedy is available to the petitioner, by challenging the order before the National Company Law Tribunal. Petitioner, if so advised can approach before the National Company Law Appellate Tribunal, by filing an appropriate appeal. It is needless to say that National Company Law Appellate Tribunal may entertain an appeal, even after the expiry of the said period applying Section 14 of the Limitation Act,1963. Civil Revision Petition is not maintainable and the same is dismissed. - Civil Revision Petition No.3739 of 2016 - - - Dated:- 20-12-2018 - Mr.Justice S.Man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age to the stakeholders or beneficiaries. (iii) The revision petitioner, on receipt of the notice from the National Company Law Tribunal, filed an application C.A.12 of 2016, challenging the maintainability of the petition filed for oppression and mismanagement. According to the revision petitioner, in a case of a Company not having share capital, a petition under Section 241 of the Companies Act for oppression and mis-management is maintainable only when not less than 1/5th of the total number of members of the Company present such an application to the Tribunal. According to them, even one of the petitioners (respondents herein) is not a member and therefore, the application is not maintainable. (iv) According to the revision petitioner, neither the first respondent nor the other applicants who had given their consent authorising the petitioner No.1 to file the petition, under Section 241 of the Companies Act, are members of the petitioner Company and therefore, the requirements of Sections 244 of the Companies Act, are not satisfied. (v) The National Company Law tribunal, by the impugned order, dismissed the application, challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al under sub-Section (1) shall be filed within a period of forty-five days from the date on which a copy of the order of the Tribunal is made available to the person aggrieved and shall be in such form, and accompanied by such fees, as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. (4). On the receipt of an appeal under sub-Section (1), the Appellate Tribunal shall, after giving the parties to the appeal a reasonable opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (5). The Appellate Tribunal shall send a copy of every order made by it to the Tribunal and the parties to appeal. 7. The learned Senior Counsel, contended that the National Company Law Tribunal has been formed as a specialised body under the Companies Act, 2013, to deal with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case. 39. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self http:// restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acon J. White 2. Mr.L.D.Miller Mr.L.D.Miller 3 Mr.C.J.Lucas Mr.C.J.Lucas 4 Rev.L.J.Thomas Rev.L.J.Thomas 5 Mr.P.K.Mon Singh Mr.P.K.Mon Singh 6 Rev.A.M.Payler Rev.A.M.Payler 7 Rev.T.R.Foulger Rev.T.R.Foulger 8 The Venerabl Archdeacon P.C.Kora The Venerabl Archdeacon P.C.Kora 9 The Venerable Archdeacon E.M.Spear The Venerable Archdeacon E.M.Spear 10 Mr.M.G. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Company Law Tribunal could exercise its powers under the proviso to waive any of the requirements under Section 244 of the Companies Act, to enable the members to apply under Section 241 of the Companies act only if at least one member is there to maintain the application. In the absence of even one member the Company petition is not maintainable. 14. He would further submit that the Tribunal has exercised its jurisdiction which is not vested in it at all, in as much it has entertained an application which is not maintainable and further, it has gone ahead and while considering an application for maintainability of the petition has passed interim orders by removing all the Directors of the Company and further, appointing a retired Judge to take over the Company. He would further submit that the High Court has jurisdiction to entertain in such matters where the authority has over stepped or crossed the lines of jurisdiction and has acted in flagrant disregard of law or the rules of procedure and the exercise of jurisdiction has resulted in failure of justice and grave injustice has been caused to the Company. 15. The National Company Law Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IA AND OTHERS , while dealing with the issue regarding entertaining 227 petition, arising out of an authority constituted under an Act, which provides for a hierarchy of Courts, The Hon'ble Supreme Court observed as under:- 11. We have considered the respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation-L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L S) 577] . However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. [1919 AC 368 : (1918-19) All ER Rep 61 (HL)] and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. [1935 AC 532 (PC)] and Secy. of State v. Mask and Co. [(1939-40) 67 IA 222 : AIR 1940 PC 105] It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine. 14. In Mafatlal Industries Ltd. v. Union of India [(1997) 5 SCC 536] B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) 77. So far as the jurisdiction of the High Court under Article 226-or for that matter, the jurisdiction of this Court under Article 32-is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t district, State and national level. 20. In Fair Air Engineers (P) Ltd. v. N.K. Modi [(1996) 6 SCC 385] this Court referred to the judgment in LDA v. M.K. Gupta [(1994) 1 SCC 243] and observed: (N.K. Modi case [(1996) 6 SCC 385] , SCC p. 393, para 15) 15. Accordingly, it must be held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words in derogation of the provisions of any other law for the time being in force would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. (See: N.T. Veluswami Thevar vs. G. Raja Nainar, AIR 1959 SC 422; Municipal Council, Khurai vs. Kamal Kumar, (1965) 2 SCR 653; Siliguri Municipality vs. Amalendu Das, (1984) 2 SCC 436; S.T. Muthusami vs. K. Natarajan, (1988) 1 SCC 572; Rajasthan SRTC vs. Krishna Kant, (1995) 5 SCC 75; Kerala SEB vs. Kurien E. Kalathil, (2000) 6 SCC 293; A. Venkatasubbiah Naidu vs. S. Chellappan, (2000) 7 SCC 695; L.L. Sudhakar Reddy vs. State of A.P., (2001) 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, (2001) 8 SCC 509; Pratap Singh vs. State of Haryana, (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. vs. ITO, (2003) 1 SCC 72). 13. In Nivedita Sharma vs. Cellular Operators Assn. of India, (2011) 14 SCC 337, this Court has held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows: 12. In Thansingh Nathmal v. Supdt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt throughout. The High Court was therefore justified in dismissing the writ petitions in limine. 14. In Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) 77. So far as the jurisdiction of the High Court under Article 226-or for that matter, the jurisdiction of this Court under Article 32-is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. (See: G. Veerappa Pillai v. Raman Raman Ltd., AIR 1952 SC 192; CCE v. Dunlop India Ltd., (1985) 1 SCC 260; Ramendra Kishore Biswas v. State of Tripura, (1999) 1 SCC 472; Shivgonda Anna Patil v. State of Maharashtra, (1999) 3 SCC 5; C.A. Abraham v. ITO, (1961) 2 SCR 765; Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433; H.B. Gandhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. vs. State of Haryana, (1985) 3 SCC 267 this Court has noticed that if an appeal is from Caesar to Caesar s wife the existence of alternative remedy would be a mirage and an exercise in futility. 17. In the instant case, neither has the assessee-writ petitioner described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case. In light of the same, we are of the considered opinion that the Writ Court ought not to have entertained the Writ Petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the Act, the re-assessment orders passed and the consequential demand notices issued thereon. 18. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Judge. It is also difficult to see how the learned Judge could give a direction that the decision of the City Civil Court on the issue whether the respondent was a paying guest would not bind the parties in the adjudication of the Small Cause Court suit. The question whether the parties in the Small Cause Court suit would be bound by the decision of the City Civil Court would be a question which would arise for determination in the Small Cause Court suit and the Small Cause Court would have to determine it in deciding the suit before it. If the decision of the Small Cause Court is erroneous, the aggrieved party would have a right to file an appeal against it and the appellate court would then consider this question and adjudicate upon it. But we fail to understand how the learned Judge could, without any decision having been given by the Small Cause Court and such decision having been brought up before him in appeal or revision, enter upon a consideration of this question and pronounce upon it. The order passed by the learned Judge was clearly erroneous and it must be quashed and set aside and the Special Civil Application must be dismissed. We may make it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nevertheless when there is an alternative remedy available judicial prudence demands that the court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act. 20. In the instant case, the Companies Act, provides for an appeal from the order of the National Company Law Tribunal to the National Company Law Appellate Tribunal. Appeal is both on law and facts. Both can be adjudicated before the Appellate Tribunal. 21. Judgment, relied on by the learned counsel for the petitioner in the case of SURYA DEV RAI Vs. RAM CHANDER RAI AND OTHERS {2003 (6) SCC 675}, cited supra, deals with the exercise of powers under Article 227 in a matter arising out of a suit. No doubt, the High Court has powers under Article 227 of the Constitution of India to entertain petitions where Courts and Tribunals under the jurisdiction of the High Court have acted in a manner which has resulted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India, SAM Branch, Anna Salai, Chennai, reported in AIR 2011 Madras 220, at paragraph No.12 of the judgment held thus:- It is true that when there is a provision of alternative remedy, which is more effective, the writ petition cannot be entertained unless such a remedy is exhausted. In fact, this law is reiterated by the Apex Court in the judgment reported in the case of (2010) 8 SCC 110 : (AIR 2010 SC 3413) (cited supra). Availing alternative remedy is general Rule, but there are exceptions. In case if the order of the Tribunal is questioned on the ground of want of jurisdiction, the provisions of Article 226 of the Constitution can be invoked and more so, when it is pleaded that the order questioned in this writ petition is a nullity and non-est in law. In this context, we may also refer that when an order of the Tribunal is a nullity, an appeal therefrom cannot be of greater validity and in that sense, the question of directing the parties to prefer an appeal against that order, which is a nullity, is if no consequence. In the event when the order is void, non-est, relegating a person to avail alternative remedy would result in palpable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myraid. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. (ii) In Hindalco Industries Ltd., v. Union of India reported in 1994 (2) SCC 594, the Hon'ble Supreme Court, at paragraph 7, held as follows: 7. It is settled law that it is no longer necessary to 85 specifically ask for general or other relief apart from the specific relief asked for. Such a relief may always be given to the same extent as if it has been asked for provided that it is not inconsistent with that specific claim which the case raised by the pleadings. The court must have regard for all the relief and look at the substance of the matter an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of such a discretion must be a real exercise of the discretion. If in any statute conferring the jurisdiction, there are to be found, expressly or by implication, matters to which the authorities exercising the discretion ought to have regard, then, in exercising the discretion, they must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, they must disregard those matters. Expressions have been used in cases where the powers of local authorities came to be considered relating to the sort of thing that may give rise to interference by the court. Bad faith, dishonesty - those, of course, stand by themselves, unreasonableness, attention given to extraneous circumstances, disregard of public policy, and things like that have all been referred to as being matters which are relevant for consideration. The discretion must be exercised reasonably. A person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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