SIMPLEX INFRASTRUCTURES LIMITED Vs. NITESH ESTATES LIMITED

JUDGEMENT

(1.) In this petition under Article 226 and 227 of the Constitution of India the petitioner has assailed the validity of the orders dated 25.07.2018 passed by the National Company Law Tribunal, Bengaluru. In order to appreciate petitioner's grievance, few facts need mention, which are stated infra:

(2.) Learned counsel for the petitioner submitted that the subject matter of the proceeding under Section 9 of the Code could not be referred for arbitration. It is further submitted that even though arguments on application under Section 9 of the Code were heard, yet the arguments were passed on merits and even the corporate insolvency resolution process initiated by the petitioner under Section 9 of the Code was rejected. It is further submitted that the petitioner do not have the remedy of appeal against the impugned order before the National Company Law Appellate Tribunal. In support of aforesaid submissions, reliance has been placed on decisions of Supreme Court in 'FUERST DAY LAWSON LTD. VS. JINDAL EXPORTS LTD.,', (2011) 8 SCC 333, 'SUMITOMO CORPORATION VS. CDC FINANCIAL SERVICES (MAURITIUS) LTD. & ORS.,', (2008) 4 SCC 91 AND 'KANDLE EXPORT CORPORATION AND ANOTHER VS. OCI CORPORATION AND ANOTHER', CIVIL APPEAL NO.1661-1663/2018. On the other hand, learned counsel for the respondent has supported the order passed by the Tribunal and has submitted that in case of alternative remedy this court should not exercise the powers under Article 226 of the Constitution of India. It is also pointed out that since the petitioner has already filed an application for appointment of arbitrator. In support of his submissions, reference has been made to a decision of Supreme Court in 'BOOZ ALLEN AND HAMILTON INC. VS. SBI HOME FINANCE LIMITED AND OTHERS', (2011) 5 SCC 532.

(3.) I have considered the submissions made by learned counsel for the parties and have perused the record. The relevant extract of the impugned order reads as under: