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TMI Blog2024 (12) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... lekar i/by Raval Shah & Co., Advocate. For the Respondent No. 18: Mr. Yahya Batatawala a/w Ms. Shneha Mishra, Advocate. ORDER PER (RAVINDRA V GHUGE, J) 1. On 12th November, 2024, the Bench (Coram : A.S. Chandurkar & Rajesh Patil, JJ.), referred to the order dated 18th July, 2024 passed in Interim Application (L) No.22605 of 2024 with Interim Application (L) No.22609 of 2024, and directed that this Petition should not be listed before the said Bench. 2. On 13th November, 2024, the Bench (Coram: M.S. Sonak and Jitendra Shantilal Jain, JJ), recorded that the matter would not be listed before the Bench of which Justice Jain is a member. 3. Pursuant to the above, the Hon'ble the Chief Justice of the Bombay High Court has placed this matter before this Bench. 4. On 27th November, 2024, we considered the oral submissions of the learned Advocate Mr. Nedumpara for almost three hours, from 12:00 noon to 1:30 p.m. and from 2:30 p.m. to 4:00 p.m. As Respondent Nos. 1 to 6, 7, and 18 had appeared suo moto, they were unable to file their affidavit and reply. We permitted them to file their written notes/bullet points or affidavit in reply, considering extensive submissions of Mr. Nedumpa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Central Government under Section 9 thereof, as also the circulars and guidelines issued by the Reserve Bank of India under Section 10 thereof, which provides for a mechanism of resolution of stress, no proceedings for recovery under the SARFAESI Act, RDB Act, N.I. Act, will lie, except in the manner contemplated under the said notification, in particular Paragraph 5 (4) (iii) of the same; f) to declare that the MSMED Act, 2006 in so far as it has not created a special forum/tribunal to adjudicate the inter-se rights and obligations/remedies, which it has created in addition to those rights/obligations/remedies recognized by the common law, the jurisdiction of the Civil Court is not ousted, for it is impossible to oust the jurisdiction of the Civil Court without providing for an alternative forum/tribunal to adjudicate the inter se disputes between parties who are governed by the Act; g) To declare that the Section 13 of the SARFAESI Act, Section 19 of the RDB Act and Section 7 of the IBC are unconstitutional, ultra vires and void and are liable to be so declared, inasmuch as the said enactments are wholly on-sided, drafted on the grossly erroneous premise that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue a writ in the nature of prohibition, restraining and prohibiting the Respondent no.22 and 23, the Hon'ble Members of the NCLT-1, Mumbai, from assuming to itself a jurisdiction which the law has not vested in them and from passing any order in CP/322/2023 instituted by the TDB, whatsoever, in the purported exercise of its jurisdiction under Section 7 of the IBC, the Petitioner being an MSME entitled to the protection under the notification dated 29.5.2015; m) To issue a writ in the nature of mandamus directing the Respondents Bank of India and the ICICI Bank to allow the Petitioners, namely the Directors of Perfect infraengineers Pvt. Ltd. Who were illegally ousted, to operate the various accounts maintained by the Company and to cause no obstruction or inconvenience in the smooth operation of the company, and further to direct the Respondent no.18, who falsely claims to be the IRP, to undo whatever hasty steps he has taken in meddling with the affairs of the Petitioner's Company; n) To initiate suo motu Contempt of Court proceedings against the IRP for the gross breach of the oral directions and orders of this Court in the common orders dated 14.8.2024 in W.P(L) no. 23291 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ster data that the Petitioner's Company M/s Perfect Infraengineers Ltd. is under CIRP Process; e) Any other order in the facts and circumstances of this matter which this Court may deem fit;" 8. Mr. Nedumpara, while addressing the Court for 3 hours, has made several submissions, some based on the pleadings in the Writ Petition, some based on the issues not pleaded and he narrated a host of latin phrases. However, we deem it appropriate to refer to the contentions which are in relation to the pleadings before us. THE PETITIONER DECLINES TO APPROACH THE NCLAT 9. Considering Section 61 (2) of the IBC prescribing 30 days limitation with a grace period of 15 days, the Petitioner had 45 days at its disposal for challenging the order of the NCLT-1, Mumbai dated 29th October, 2024 before the NCLAT. Within the said limitation period, the Petitioner had approached this Court, actually within 24 hours by filing this Petition running into 730 pages. We called upon Mr. Nedumpara as to whether the Petitioner desires to approach the NCLAT, in the light of the law laid down Godrej Sara Lee v. Excise and Taxation Officer, 2023 SCC Online SC 95, and several judgments on special statutes and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deprecated. 12. Despite the above, Mr. Nedumpara insisted that this Court should deal with this Petition. SUMMARY OF THE SUBMISSIONS OF ADV NEDUMPARA 13. The Petitioner claims to be a promoter and guarantor of an Industry, which had taken loan from the ICICI Bank. After noticing that the Bank was incorrectly calculating the interest at a higher rate and in excess of the agreed rate of interest, the Petitioner initially addressed the ICICI Bank and later on approached the RBI/Banking ombudsman. The said Authority is said to have reversed the excess interest charge. During the COVID-19 pandemic, the RBI is said to have declared a moratorium against recovery from 1st March, 2020 to 31st August, 2020. 14. The ICICI Bank is said to have wrongly classified the Company's loan account as NPA in July, 2020 with retrospective effect from 29th February, 2020. It is alleged that this was done to deny the Petitioner of the benefit of the COVID-19 moratorium and various Government of India and RBI notifications. After classifying the loan account as NPA, the ICICI Bank invoked Section 13 (2) of the Securitisation And Reconstruction of Financial Assets and Enforcement of Security Interest Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d only one proceeding before the Civil Court. The Tribunals under the Recovery of Debts and Bankruptcy Act, 1993 (for short 'RDB Act'), SARFAESI Act, 2002 and IBC, do not have jurisdiction. However, as the Civil Court jurisdiction came be questioned whenever the Petitioner tried to invoke the same, therefore, she had to institute innumerable Petitions before the High Court, the Debts Recovery Tribunals (for short 'DRT'), etc. 19. The Petitioner submits that the TDB instituted an Application under Section 7 of the IBC. The Petitioner challenged the said action in W.P. (L) No. 35792 of 2022, before the High Court. By a common Judgment dated 11th January, 2024, the plea of the Petitioner and other MSMEs, was rejected. The said Judgment was carried in Special Leave Petition (C) No. 2112 of 2024, under Article 136. The Hon'ble Supreme Court declined Leave to Appeal, by order dated 29th January, 2024. The Review Petition (L) No. 4048 of 2024, was filed by the Petitioner in this Court seeking Review of the order of this Court dated 11th January, 2024. By order dated 19th March, 2024, the Review Petition (L) No. 4048 of 2024, was dismissed. 20. The Petitioner preferred a Writ Petition (L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the SARFAESI Act, was prohibited. (d) Recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor, was prohibited. Further directions were also issued which include that the creditor would deposit a sum of Rs. 5,00,000/- with IRP and that the order of moratorium shall have effect from the date of the order till completion of CIRP or until the Bench approves the resolution plan. 24. In Writ Petition (L) No. 23291 of 2024, this Court requested the NCLT vide order dated 14th August, 2024, to consider the Recall Applications filed before NCLT by the present Petitioner. By order dated 29th October, 2024, the NCLT dismissed the Recall Applications observing that NCLAT is the Appellate Authority to decide on an Appeal arsing out of the order passed by NCLT. 25. The Petitioner preferred Writ Petition (L) No. 26313 of 2024, before the High Court, against the order dated 15th July, 2024. The prayers put forth are as under : "a) to declare that the Petitioner being an MSME within the mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious action, so too, violation of the express statutory provisions at the hands of the ICICI Bank and the TDB, are entitled to institute an action/suit as against the ICICI Bank and the TDB for the enforcement of the Petitioners' right as against them; f) To Issue a writ in the nature of certiorari or any other appropriate writ, order or direction, calling for the entire records and proceedings leading to the action at the hands of the ICICI Bank under Section 13 (4) and 14 of the SARFAESI Act and Section 19 of the RDB Act, so too, the entire records and proceedings before the NCLT-1, Mumbai, in Company Petition No. 322 (MB) of 2023 under Section 7 of IBC at the hands of the TDB leading to the orders dated 15.7.2024, so too, to quash and set aside the same, being unconstitutional and void; g) To Issue a writ in the nature of prohibition or any other appropriate writ, order or direction restraining and prohibiting the ICICI Bank and the Technology Development Board in proceeding any further in furtherance of Section 13 (2), 13 (4) & 14 of SARFAESI Act, Section 19 of the RDB Act, Section 7 of IBC, Section 138 of the Negotiable Instruments Act or under any other law; h) To d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner has now once again filed the present Writ Petition seeking declarations as mentioned here-in-above and also assailing Orders dated 15th July 2024 passed by the NCLT in the three I.A's filed by the Petitioner herein." 27. Finally, this Court concluded in Paragraph No. 5 and its sub-clauses, as under : "5. Since both the parties consented to advance their respective arguments on the Company Petition before the NCLT as mentioned above, we direct the NCLT to grant an opportunity to the Petitioner herein to place on record of the Company Petition No.322/IBC/MB/2023, the Judgment and Order dated 1st August 2024 passed by the Supreme Court in SLP (C) No.7898 of 2024 and advance its submissions in that regard and thereafter adjudicate on the initiation of the CIRP against the Petitioner/Corporate Debtor. This Order is however, subject to the following terms and conditions:- (i) Status-quo will be maintained in so far as Order dated 15th July 2024 passed by the NCLT, Mumbai bench in Company Petition No. 322/IBC/MB/2023, initiating CIRP, till fresh orders are passed by it after giving an opportunity to the Petitioner to place the Order dated 1st August 2024 of the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id Company Petition at the earliest and preferably within a period of two weeks from the date of commencement of hearing of the Company Petition. The parties shall present themselves before the NCLT on 16th October 2024 at 10.30 a.m. and produce this Order before it." 28. The Petitioner then preferred a Review Petition (L) No. 33425 of 2024, on 29th October, 2024. The Petitioner had appeared in person. The said Court permitted Mr. Nedumpara to canvass his submissions at length. The Review Petitioner in person sought time for arrangements of funds, that was the principal amount to be deposited with the Registry of this Court. Time was granted until 7th January, 2025. It was made clear that the Court had not granted any relief to the Review Petition. For clarity, we are reproducing the order dated 11th November, 2024, hereunder : "1) Heard Mr. Nedumpara at length. 2) The Review Petitioner in-person seeks time for arrangement of the funds, i.e. the principle amount to be deposited in the Registry of this Court. Time is granted. 3) Stand over to 7th January, 2025. 4) It is made clear that, we have not granted any relief till date in the present Petition." SUMMARY OF THE SUBMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light of the observations in the order dated 1st October, 2024 below Paragraph No.4, which reads as "during the course of arguments, both the parties agreed that the proper recourse for effective and expeditious determination of the issue in question was to request the NCLT to grant an opportunity to the Petitioner to be heard in the Company Petition No.322/IBC/MB/2023 filed by the TDB against the company of the Petitioner". It was further recorded that "According to Mr. Nedumpara this view of the Apex Court may have a bearing on the Company Petition before the NCLT, Mumbai Bench". It was further recorded in Paragraph No. 5, as "Since both the parties consented to advance their respective arguments on the Company Petition before the NCLT as mentioned above, we direct the NCLT to grant an opportunity to the Petitioner herein to place on record of the Company Petition No.322/IBC/MB/2023, the Judgment and order dated 1st August, 2024 passed by the Supreme Court in SLP (C) No.7898 of 2024 and advance its submissions in that regard and thereafter adjudicate on the initiation of the CIRP against the Petitioner/Corporate Debtor". 33. We have perused the order dated 29th October, 2024, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier Petition. Main Prayer Clause (i) in this Petition is identical in the Prayer Clause (f) in the earlier Petition. Main Prayer Clause (m) and Interim Prayer Clause (d), are almost identical to Prayer Clause (i) in the earlier Petition. Main Prayer Clause (n) in this Petition is identical to Prayer Clause (j) in the earlier Petition. Interim Prayer Clause (a) in this Petition, except so far as it concerns Order dated 29th October, 2024, is identical to Interim Prayer Clause (a) in the earlier Petition. Interim Payer Clause (c) in this Petition is almost identical to Interim Prayer Clause (b) in the earlier Petition. Interim Payer Clause (d) in this Petition is identical to Interim Prayer Clause (c) in the earlier Petition. 36. In the light of the above, we have concluded in the earlier part of this order, that the impugned order dated 29th October, 2024, can neither be termed as perverse or illegal. Merely because a different view could be possible, would not call upon this Court to quash and set aside the impugned order, in view of the law laid down in Syed Yakoob V/s. K.S. Radhakrishnan, AIR 1964 SC 477 and Surya Dev Rai V/s. Ram Chander Rai, AIR 2003 SC 3044, this Petition to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2024, in the same Commercial Suit, it is again prayed that the same order dated 15th July, 2024 passed in the same Company Petition No. 322(MB) of 2023, be stayed. The learned Single Judge refused to grant ad-interim relief to the Petitioner. (e) The fact of challenging the order dated 15th July, 2024, in the earlier Writ Petition and also in the Interim Application (L) Nos. 25072 and 25073 of 2024, was suppressed from this Court. (f) The law on suppression/misrepresentation, as settled in Kishore Samrite V/s. State of Uttar Pradesh, (2013) 2 SCC 398 and Bhaskar Laxman Jadhav and others V/s. Karamveer Kakasaheb Wagh Education Society, AIR 2013 SC 523, would be squarely applicable. 41. This is a serious case of a Petitioner/litigant blatantly and glaringly indulging in forum shopping, misrepresentation and suppression. Imposition of cost would be justified in the light of Kamini Jaiswal V/s. Union of India, (2018) 1 SCC 156 (3 Judges) and Dinesh Gupta V/s. State of Uttar Pradesh and Anr., 2024 SCC OnLine 34. In Dinesh Gupta (supra), the Hon'ble Supreme Court recorded in the opening paragraph that unscrupulous litigants should not be allowed to go scot-free. They should be put ..... X X X X Extracts X X X X X X X X Extracts X X X X
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