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TMI Blog2020 (1) TMI 1319X X X X Extracts X X X X X X X X Extracts X X X X ..... nd unlawful. It had also been stated that the respondent Nos.3 to 6 have been trying to undermine the interests of the petitioners to dispossess the controlling stake held by the petitioners. The learned counsel for the petitioner stated that a fraud had been conducted by holding the Annual General Meeting on 14.10.2019. It had been stated that the fact that the decision had been kept in abeyance and has not been disclosed in the audit report. If fraud is alleged then the petitioner may very well agitate the same before the Tribunal, which as held by the Hon'ble Supreme Court can examine allegation of fraud - The actual grievance of the petitioners for filing the Writ Petition is that the Presiding Officer is on leave and a mention was made before the Co-ordinate Bench of the NCLT, Chennai. The said Presiding Officer had adjourned the case to February 2020. That will not be a ground for the writ petitioner to file this writ petition with the very same relief before this Court. The Writ jurisdiction cannot be exercised to grant the relief sought by the petitioners, particularly since the Company Petition No.20 of 2018 is already pending before the NCLT with respect to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsolvency and Bankruptcy Code, 2016, ignoring the availability of a statutory remedy of appeal to the National Company Law Appellate Tribunal and if so, under what circumstances; and (ii) Whether question of fraud can be inquired into by the NCLT/NCLAT in the proceedings initiated under the Insolvency and Bankruptcy Code, 2016, arise for our consideration in these appeals. 7. The back ground facts have been given in the paragraph 4 of the said judgment which are as follows: i) A company by name M/s. Udhyaman Investments Pvt. Ltd. which is the twelfth Respondent in the first of these three appeals, claiming to be a Financial Creditor, moved an application before the NCLT Chennai, under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the IBC, 2016), against M/s. Tiffins Barytes Asbestos Paints Ltd., the Corporate Debtor (which is the fourth Respondent in the first of these three appeals and which is also the appellant in the next appeal). ii) By an Order dated 12.03.2018, NCLT Chennai admitted the application, ordered the commencement of the Corporate Insolvency Resolution Process and appointed an Interim Resolution Professional. Conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the lease should be deemed to be valid upto 31.03.2020 and also a consequential direction to the Government of Karnataka to execute Supplement Lease Deeds for the period upto 31.03.2020. ix) By an Order dated 11.12.2018, NCLT, Chennai allowed the Miscellaneous Application setting aside the Order of the Government of Karnataka on the ground that the same was in violation of the moratorium declared on 12.03.2018 in terms of Section 14(1) of IBC, 2016. Consequently the Tribunal directed the Government of Karnataka to execute Supplement Lease Deeds in favour of the Corporate Debtor for the period upto 31.03.2020. x) Aggrieved by the order of the NCLT, Chennai, the Government of Karnataka moved a writ petition in WP No.5002 of 2019, before the High Court of Karnataka. When the writ petition came up for hearing, it was conceded by the Resolution Professional before the High Court of Karnataka that the order of the NCLT could be set aside and the matter relegated to the Tribunal, for a decision on merits, after giving an opportunity to the State to respond to the reliefs sought in the Miscellaneous Application. It is relevant to note here that the Order of the NCLT da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supplemental Lease Deeds for the extension of the mining lease. Since NCLT chose to exercise a jurisdiction not vested in it in law, the High Court of Karnataka was justified in entertaining the writ petition, on the basis that NCLT was coram non judice. 9. With respect to the second issue, the Hon'ble Supreme Court had held as follows: 52. The upshot of the above discussion is that though NCLT and NCLAT would have jurisdiction to enquire into questions of fraud, they would not have jurisdiction to adjudicate upon disputes such as those arising under MMDR Act, 1957 and the rules issued thereunder, especially when the disputes revolve around decisions of statutory or quasi judicial authorities, which can be corrected only by way of judicial review of administrative action. Hence, the High Court was justified in entertaining the writ petition and we see no reason to interfere with the decision of the High Court. Therefore, the appeals are dismissed. There will be no order as to costs. 10. In the present case, the petitioner has alleged that the respondent Nos.3 to 6, who are private parties have usurped the controlling interest of the 2nd respondent by getting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the NCLT, the petitioners have sought representation in proportion to the equity shareholding of the petitioners with 47.68% and the respondents with 47.82%. It is thus seen that it is a re-agitation of the issue which had been raised before the NCLT and which is pending before the said Tribunal. 13. This practice of re-agitation and re-litigating the same issue before two different forums has been very strongly commented by the Honourable Supreme Court reported in 1998-3-SCC-573, K.K.Modi Vs. K.N.Modi. The Honourable Supreme Court had stated as follows:- 44. One of the examples cited as an abuse of the process of the court is re litigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to re litigate the same issue which has already been tried and decided earlier against him. The re agitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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