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TMI Blog2018 (9) TMI 1927X X X X Extracts X X X X X X X X Extracts X X X X ..... emedy under Section 62 of the said Code to prefer an appeal if it is aggrieved by an order of the Appellate Tribunal, before the Hon ble Supreme Court on question of law. Upon perusal of pleadings and prayer clauses of the petition it would reveal that petition is based on various questions of law that have been framed by the petitioner. Even if the petitioner fails before the learned Appellate Tribunal, the petitioner can very well raise the questions of law which are sought to be raised in the present petition, before the Hon ble Supreme Court. When the Court is flooded with thousands of petitions, we do not expect the petitioner to approach this Court under Article 226 of the Constitution of India. The Court cannot have the luxury to ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as "said Code") to prefer an appeal before the National Company Law Tribunal. It is submitted that the petition, therefore, without having taken recourse of Appellate Tribunal is not permissible in law. When we permitted learned Counsel for respondent No.3 to raise his preliminary objection, Shri Nedumpara, learned Counsel for the petitioner objected to the procedure of the Court permitting the respondent No.3 to raise the preliminary objection. He submitted that the petitioner is dominus litus and he has a right of first audience. 3. We informed Shri Nedumpara that when the party respondent has raised a preliminary objection regarding the tenability of the petition, it is such a party who raises such an objection will have to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmit Shri Nedumpara from advancing further arguments. 5. Shri Nedumpara relying upon the Constitution Bench judgment of the Apex Court in the case of A.R. Anthulay vs. R.S. Nayak and another reported in [(1988) 2 SCC 602] basically submitted that the petitioner has not only a remedy of an appeal under the provisions of the said Code, but he can also raise the issue to which he is entitled to either in a suit or even before this Court in its exercise in the jurisdiction of this Court under Article 226 of the Constitution of India. 6. No doubt, this Court is not powerless to entertain the petition under Article 226 of the Constitution of India even if the party has an alternate remedy. Non exercise of the jurisdiction of this Court under Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt cannot have the luxury to entertain the petition when the petitioner has not only alternate but equally efficacious remedy in law. Hence the petition is dismissed on the ground of availability of alternate remedy in law. 8. At this stage Shri Nedumpara prays for stay of the order passed by us. We do not understand as to for what purpose the stay is to be granted. Perusal of the record would reveal that there is no interim protection granted by the earlier Bench when the petition was entertained. Shri Nedumpara states that there was no written order passed by the Court but one of the Bench granted oral protection. The Court proceeds on the basis of the record that is available before it. The Court does not proceed on the basis of the ora ..... X X X X Extracts X X X X X X X X Extracts X X X X
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