S. CHANDRAIAH Vs. SUNIL KUMAR AGARWAL

JUDGEMENT

(1.) This petition is filed under Article-226 of the Constitution of India for quashing and setting aside the order dated 05-02-2020 passed in I.A. No.658 of 2019 in C.P. (I.B.) No.594/9/NCLT/AHM/2018. The challenge is on the basis of non-following of principles of natural justice and not affording an opportunity of hearing to the petitioner before passing the impugned order. The impugned order is for reserving the aforementioned proceedings for order.

(2.) It is the case of the petitioner that the Tribunal had reserved the order proceedings for order by the impugned order dated 05-02-2020 and immediately on 07-02-2020, the order was pronounced. The petition is filed, at that time, the petitioner was not having a copy of the order passed on 07-02-2020. Therefore, prayer is made that the Tribunal should consider the claim of the petitioner as per Section-5(8)(F) of the Insolvency and Bankruptcy Code, 2016. An application of the petitioner primarily is to IRP to recognize the petitioner as financial creditor. It is submitted that an application was filed. However, no decision was taken by the IRP and therefore, under Section-60(5) of the Insolvency and Bankruptcy Code, 2016, the application was preferred before the NCLT, Ahmedabad. In the said application, the order was passed on 22-10-2019 for Resolution Professional to see the claim of the applicant and after collating the information submitted the same before the COC. It is therefore, NCLT had recognized the right of the petitioner and therefore, the Tribunal ought to have heard the petitioner on merits. Thereafter, reserving the proceedings for order. It is submitted that on 05-02-2020, IRP had furnished the list consisting of name of the financial creditors / Operational creditors / Employee (Form-F), as on 01-02-2020, where the name of the petitioner was at Sr. No.5. Against his name, claim amount was reflected at Annexure-S. It is the case of the petitioner that the petitioner immediately passed the pursis on the same day, arguing the Tribunal to disregard such document (Annexure-S) and filed the same along with the Affidavit to furnish an opportunity of hearing to the petitioner to deal with such Affidavit and accompanying documents. Despite this, the matter was proceeded to be reserved for orders and on 07-02-2020, pronouncement was made.

(3.) Learned Advocate for the petitioner submitted that the Tribunal has heard procedural and has failed to give an opportunity of hearing to the petitioner and therefore, order reserving is required to be quashed and set aside and the Tribunal to direct to hear the petitioner. In support of her arguments, for invoking Article-226 and 227 of the Constitution of India, despite alternative remedy provided under the Code, reliance is placed upon the judgment of the Bombay High Court in case of Kamal K. Singh V/s. Union of India and others in Writ Petition No.3250 of 2019 dated 29th November, 2019 to contend that where the principles of natural justice are in breach, affecting the right of the petitioner, then Article-226 can be invoked. Reliance is placed upon the judgment of the Apex Court in case of Rojer Mathew v/s. South Indian Bank Ltd. and others reported in 2019(369)ELT3(S.C.) to contend that where the Tribunal is not situated within the State and is not like in the present case, where the Appellate Tribunal is in Delhi, then jurisdictional High Court under Article-226 , can redressed the grievance. Reliance is placed upon the decisions of Embassy Property Developments Pvt. Ltd. v/s. State of Karnataka and ors. reported in 2019(17)SCALE37 to contend that despite the availability of statutory alternative remedy of Appeal to NCLT under Article-226 and 227 of the Constitution of India, writ can be issued by the High Court.