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Judgment
ORDER
The Company Appeal (AT) (Ins) No. 370/2022, was adjudicated finally on merits by the Judgement rendered by this Appellate Tribunal on 19.10.2022. At the stage, when the final adjudication was made in the company appeal, which was emanating from the Judgement of 21.07.2022, which was rendered by NCLT, Hyderabad in CP(IB)150/9/HDB/2019, at that stage, this Tribunal was exercising its appellate power vested in it under section 61 of I & B Code, 2016. It goes without saying that the I & B Code itself is a self-contained statute and is mandatory in nature too.
Question which would ultimately emerge for consideration is as to whether any party aggrieved by the Judgment of this Tribunal, by overriding the jurisdiction of Hon’ble Apex Court under Section 62 of I & B Code, can invoke a writ jurisdiction under Article 226 of the Constitution of India and furthermore whether the writ courts in the exercise of their jurisdiction under Article 226 of the Constitution of India, under an equitable jurisdiction can condone delay and remit the Appeal back to this Appellate Tribunal to be decided afresh, by overriding the impact of limitation which is statutorily prescribed under special statute and condoning the delay beyond the ambit of I & B Code of 2016 and by directing to revive the proceedings under I & B Code of 2016, to be decided afresh on merits, thus taking / assuming jurisdiction over this Appellate Tribunal.
The statute in all its wisdom has conferred the Appellate jurisdiction to this Tribunal, as against the Judgements which are rendered by the National Company Law Tribunals, as constituted under law. Accordingly, any person aggrieved by the order of NCLT may prefer an appeal to this Tribunal under section 61(1) of I & B Code, 2016. Similarly, anybody being aggrieved against the Judgment orders of this Appellate Tribunal could redress their grievances before the Hon’ble Apex Court by filing an Appeal before it on a question of law arising out of such order under section 62(1) of the said code. From this it is quite clear that this Tribunal, namely National Company Law Appellate Tribunal is a forum created under law to exercise Appellate Jurisdiction in matters coming under I & B Code, 2016.
This matter, as it is listed today, is listed for consideration of a Restoration Application (AT) (CH) No.02/2024. This itself engages consideration of a very peculiar circumstances, in the legal arena, which should not have chanced, being a very embarrassing situation for this Tribunal is being forced to make certain observations which under the judicial propriety and discipline should have been best avoided to be made.
This company appeal stood adjudicated by this Tribunal vide its Judgement dated 19.10.2022 on merits and as already observed, the appropriate legal recourse which was available to the appellant would have been to invoke the jurisdiction under section 62 of I & B Code, 2016, before the Hon’ble Apex Court. But for the reasons best known, the appellant had chosen to approach the Hon’ble High Court of State of Telangana, by filing a Writ Petition being WP No. 14133/2023 M/s. Johnsons Lifts Pvt. Ltd. Vs. Union of India & Anr. From the Judgement, which was rendered by the Hon’ble High Court of Telangana in this case, it appears as if the High Court was exercising its powers under Article 226 of the Constitution of India, as reflected from the Judgement itself as passed by it.
This situation presents an occasion for this Tribunal to deal with the issue, as to what would be the implications in application of Articles 226 & 227 of the Constitution of India while challenging the orders passed by this Tribunal created under Companies Act. The Hon’ble High Court of Telangana had passed the following Judgement: -
“ WRIT PETITION No.14133 OF 2023
ORDER:
“Heard Sri V.Murali Manohar, learned counsel appearing on behalf of the petitioner and Sri Gadi Praveen Kumar, learned Deputy Solicitor General of India appearing on behalf of respondent No.1 and Sri J.V.Ravi Shankar, learned counsel appearing on behalf of respondent No.2.
2.The petitioner approached this Court seeking the relief as under:
"To issue an appropriate Writ, Order or Direction, more particularly one in the nature of Writ of Certiorari calling for records pertaining to the orders dated 19.10.2022 in (AT) (CH) (INS) No.371/2022 and I.A.No.869 of 2022 passed by the National Company Law Appellate Tribunal Chennai under Section 61 of the Insolvency and Bankruptcy Code, 2016 ("Code"), and quash the same as being illegal, arbitrary, highhanded, in violation of the purpose and intention of Section 65 of the Insolvency and Bankruptcy Code, 2016 ("Code") and in violation of the rights guaranteed under Article 14 and 21 of the Constitution of India and pass such other relief or reliefs as this Honble Court deems fit and proper in the circumstances of the case."
3.It is represented by both the learned counsel on record that the subject issue is squarely covered by the order of this Court dated 05.03.2024 passed in W.P.No.22537 of 2023. The Division Bench of this Court vide orders dated 05/03/2024 disposed of the Writ Petition No.22537of 2023 observing as under:
"Thus, it is evident that appeal against an order passed by the National Company Law Tribunal has to be filed within a period of 30 days. The Appellate Tribunal has power to condone the delay of 15 days. In the instant case, the National Company Law Tribunal passed an order on 21.07.2022. The certified copy of the order was collected by the petitioner on 01.08.2022 and the petitioner filed appeal on 09.09.2022. Thus, the appeal was preferred within the limitation prescribed under Section 61 of the IBC and therefore, the Appellate Tribunal erred in rejecting the application for condonation of delay on the ground that the same was filed beyond the period of 45 days. The order passed by the Appellate Tribunal suffers from jurisdictional infirmity. The same therefore cannot be sustained in the eye of law. It is accordingly quashed. The delay in filing the appeal is condoned. The Appellate Tribunal is directed to deal with the appeal on merits."
4.Taking into consideration the order passed by the Division Bench of this Court dated 05.03.2024 in W.P.No.22537 of 2024 and duly bringing the contents of Para No.10 of the said order dated 05.03.2024 passed in W.P.No.22537 of 2023 on record, the present Writ Petition is allowed as prayed for. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.”
In this context, it is to be noted that the Article 226 of the Constitution of India confers and ensures a right to a citizen as defined under Article 5 of the Constitution of India, to approach the Hon’ble High Court, wherever there is a breach or any infringement of his apparent and ensured legal fundamental rights as guaranteed under the Constitution and whenever the Hon’ble High Court is exercising its powers under the Article 226 of the Constitution of India, it is simpliciter and exclusively for the purpose of protection of a Constitutional or a legal right, as envisaged under the covenants of the Constitution itself and not otherwise. Article 226 is extracted hereunder: -
“226. Power of High Courts to issue certain writs.-
(1)Notwithstanding anything in article 32, every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including [writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.]
(2)The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority on the residence of such person is not within those territories.
[(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without-
(a)furnishing to such party copies of such petition and documents in support of the plea for such interim order; and
(b)giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which copy of such application is so furnished, whichever is later, or where the High Court is closed on the day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the inters order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4)The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.”
The provisions of Article 226 of the Constitution of India, cannot be read and be utilised as if it is a power conferred to the Hon’ble High Court which is akin, to exercise “supervisory jurisdiction” over the “subordinate courts” created under law, because had that been the situation, there would not have been any judicial necessity for the framers of the Constitution of India to provide for an independent provision of Article 227 of the Constitution of India, which exclusively contemplates exercise of powers of superintendence over all “subordinate courts” by the Hon’ble High Court “over which it has powers of superintendence”. The power of superintendence granted to the Hon’ble High Court under Article 227 of the Constitution of India is restricted and can only be exercised, as against the judicial scrutiny of the orders which have been passed by the courts subordinate to the High Court and are under a judicial review by it and not otherwise. In other words, the Article 227 of the Constitution of India, is confined to scrutinizing the judicious propriety of the Judgement under challenge before a Hon’ble High Court, of the courts which are subordinate to it and are within its territorial jurisdiction, in the exercise of the powers vested to it under Article 227 of the Constitution of India.
The provisions of the Article 226 with the Constitution of India is not to be misconstrued and misunderstood to be applied as a provision akin to the provisions contained under Article 227 of the Constitution of India because both the provisions travel and intend to protect and are applied for protection of an entirely different set of legal rights as envisaged by the law of writs. Article 227 of the Constitution of India, is extracted hereunder: -
“227. Power of superintendence over all Courts by the High Court. -
(1)[Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction.]
(2)Without prejudice to the generality of the foregoing provisions, the High Court may-
(a)call for returns from such Courts;
(b)make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; and
(c)prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts.
(3)The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such Courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4)Nothing in this article shall be deemed to confer on a High Court power of superintendence over any Court or tribunal constituted by or under any law relating to the Armed Forces.”
Under Article 227 of the Constitution of India, unlike Article 226, the respective Hon’ble High Courts while exercising their powers of superintendence would have jurisdiction over only those Courts and Tribunals, situated within the territory in relation to which they exercise their respective jurisdiction. From the above constitutional expression, this Tribunal feels it apt to clarify that the word “Tribunal” as referred to in Article 227, has to be harmoniously construed to be read along with the word “territory”, as well as the words used “to which it exercises jurisdiction” both of which have to happen together and simultaneously to attract Article 227 of the Constitution of India for a Tribunal. In other words, the Hon’ble High Court of a state will have power of superintendence only on that Tribunal, which is created under law within its territorial jurisdiction and in relation to which the Hon’ble High Court has supervisory jurisdiction. The term “Tribunal” in its literal sense means a type of Court with the authority vested in it to deal with a particular problem or disagreement between the parties. To be more specific, when Article 227 conjointly uses the word “Tribunal” and “territory”, it should once again be read as a Tribunal created under a State Law and that too, within the territorial jurisdiction of a state, over which the concerned Hon’ble High Court exercises its jurisdiction. Accordingly, it follows that this expression will not apply to the Tribunals which are created under a Central Act ousted from the supervisory jurisdiction of a particular Hon’ble High Court, even though they may be situated within the territory of a particular state over which the particular Hon’ble High Court exercises its powers. Further when the adjudications made by such Tribunals which are not amenable to the supervisory jurisdiction of the respective Hon’ble High Courts, as is the situation in the instant case where this Tribunal does not fall to be within either the territorial jurisdiction or the supervisory jurisdiction of the Hon’ble High Court, the same will not be treated as a Tribunal in parlance to the word “Tribunal” used under Article 227 of the Constitution of India. Moreover, particularly when constitution of this Tribunal, is under a special statute, which specifically restricts the exercise of powers of supervisory jurisdiction as against the Judgements passed by the Tribunal, to Hon’ble Apex Court only and does not provide for any supervisory scrutiny by the Hon’ble High Court, this Tribunal cannot be subjected to supervisory scrutiny by any Hon’ble High Court. In other words, under the law once the Judgements of a Tribunal which are made appealable to the Hon’ble Apex Court, it would, by a logical conclusion exclude the ambit of supervisory jurisdiction of the Hon’ble High Court and thus in these circumstances, the Hon’ble High Court, would not have supervisory jurisdiction over such Tribunals. Thus it follows that such Tribunals, being creations of a Central Statute, and whose Judgements are amenable only to the Appellate Jurisdiction of the Hon’ble Apex Court as is the case in the instant case, under Section 62 of I & B Code, will not fall under the supervisory jurisdiction of the Hon’ble High Courts.
This Tribunal will not hesitate to observe that we are the Tribunals which have been constituted under Section 410 of the Companies Act, 2013. Being a creation of a specific special statute and being a “Tribunal”, constituted under a special Act, whose judgments are made appealable before the Hon’ble Apex Court, under section 62 of the I & B Code, it will not be a subordinate court/tribunal to the Hon’ble High Courts of a State as contemplated under Article 227 of Constitution of India, since we are specifically and independently governed by the provisions of the I & B Code and the law governing the field stands covered under the Companies Act. If the constitution of the Tribunal, as given under the Companies Act, itself is taken into consideration, it is a forum created by the Government of India by issuance of a notification in its official Gazette. And by virtue of an express Appellate provision prescribed under section 62 of I & B Code, 2016 of providing for an appellate forum before the Hon’ble Apex Court, against the Judgement rendered by this Tribunal, it by its legal implication removes this “Appellate Tribunal” from the supervisory jurisdiction of the Hon’ble High Courts, which could have if at all been exercised by the Hon’ble High Court even under Article 227 of the Constitution of India. This is our answer to the first limb as to whether Article 227, can at all be restored for making any subjective or a judicial scrutiny of the decision taken by this Appellate Tribunal, with all due reverence at our command, we are of the view that since this Tribunal being a creation of a special statute as contemplated under section 410 of the Companies Act, 2013 and since not being a court subordinate to the Hon’ble High Court, over which powers of superintendence could have at all been exercised by Hon’ble High Courts, as contemplated under Article 227 of the Constitution of India, the Judgements rendered by this Appellate Tribunal cannot be subjected to a judicial review by the Hon’ble High Court, because the law itself is governs and the field stands covered by the statute prescribing for appeal against such judgement by this Tribunal under section 62 of I & B Code, 2016, before the Hon’ble Apex Court. Thus, the jurisdiction of a Hon’ble High Court under Article 227 of the Constitution of India itself stand ousted by implication of law.
While scrutinizing the comparative provisions of Article 226 & 227 of the Constitution of India, Article 226, both the constitutional provisions, in clear terms, provide for distinct sets of powers vested with the Hon’ble High Court, one, the powers conferred under Article 226 to protect an infringement of the fundamental right as guaranteed to any citizen confined to the nature of Writs, but which does not include a writ of certiorari to be preferred for quashing a judicial order passed by a Tribunal constituted under law, and after the powers conferred under Article 227 to supervise all courts and Tribunals throughout the territories to which it exercises jurisdiction.
In the case at hand the Hon’ble High Court of Telangana, for whatsoever justification, which has been given in the Judgement, while quashing the Judgement passed by this Appellate Tribunal under Section 61 of I & B Code of 2016, has travelled to decide the question of limitation and by quashing the same, had consequently revived the proceedings of the instant Company Appeal. Owing to the said Judgement of the Hon’ble High Court and the directions which have been issued therein, this Recall Petition has been preferred by the Appellant.
The Hon’ble Apex Court had an occasion to deal with the issue as to what would be the comparative impact of exercising of jurisdiction under Article 226 and 227 of the Constitution of India to be read in harmony with the provisions of the I & B Code, 2016. The Hon’ble Apex Court has observed that in respect of the procedures to be followed by the NCLT or the NCLAT as created under the Companies Act, they will follow the procedure as contemplated under the code itself obviously after adhering to principles of natural justice. This issue came before the Hon’ble Apex Court in the matters of Kalparaj Dharamshi & Anr. Vs. Kotak Investment Advisors Ltd., in that case, it was the Judgement of the NCLT was being directly challenged under the writ jurisdiction and Hon’ble High Court had dismissed the Writ Petition on the ground that the Petitioner therein had an alternative efficacious statutory remedy of filing appeal before the NCLAT. In the said Judgement, the question which ultimately emerged and was dealt with was for consideration, as to whether an aggrieved party can, by overriding the jurisdiction of the Hon’ble Apex Court, as created under Section 62 of I & B Code can invoke a writ jurisdiction under Article 226 of the Constitution of India and furthermore whether the writ courts in the exercise of their jurisdiction under Article 226 of the Constitution of India, can at all step in and condone the delay which is exclusively the prerogative of the Tribunals created under the Act, particularly when the aspect of limitation becomes apparently quite relevant and crucial in the proceedings under the I & B Code. Hon’ble Apex Court had observed that merely because the proceedings have been drawn with the bar of limitation, the writ courts ought not to have stepped into condone the delay and to remit the matter back and particularly with a direction to consider the Appeal on merits. The direction to consider the Appeal on merits cannot be the prerogative of the writ courts exercising their powers under Article 226 of the Constitution of India because they do not exercise a supervisory jurisdiction over this Tribunal and that too under Article 226 of the Constitution of India.
Further the order of Hon’ble High Court issued under Article 226 in this case would amount to a situation where the period of limitation which has already been observed to be an important aspect in all proceedings under I & B Code would automatically stand extended contrary to the basic objectives and intention of the statute. Accordingly, it follows that the powers conferred under Article 226 of the Constitution of India cannot be utilised by Hon’ble High Courts to cloud the powers created with the Tribunals under the I & B Code and to irrationally extend the same to condone a delay beyond the ambit as prescribed under the I & B Code, resulting into the consequential reviving of a proceedings which would otherwise have stood closed by the application of law of limitation, as prescribed under the code itself. It would not be out of context to mention that I & B Code is a complete code and neither Section 5 nor Section 14 of the limitation Act has been made applicable. Thus, the Judgement which has been subjected to challenge in a writ jurisdiction before Hon’ble High Court of Telangana ought not to have been entertained by the Hon’ble High Court under Article 226 of Constitution of India, without being vested with the power to do so under the code, by using an inherent jurisdiction of Article 226 of the Constitution of India.
Article 227 of the Constitution, even though it covers ‘Tribunals’ within its ambit, it has to be co-related with the Tribunals as prescribed under the State Acts over which it exercises its territorial jurisdiction and supervisory jurisdiction. Since the jurisdiction of the NCLAT is not limited to a particular state, a writ court under Article 226 cannot treat the NCLAT or NCLT as to be the courts or Tribunals lying within its jurisdiction for the exercise of its inherent power under Article 226 of the Constitution of India. The Hon’ble Apex Court in the matters of a Civil Appeal No. 9170/2019 M/s. Embassy Property Developments Pvt. Ltd. Vs. State of Karnataka & Ors. was dealing with the question with regard to the scope of interference by the Hon’ble High Court under Article 226 & 227 of the Constitution of India over the Tribunals created under Companies Act and the question thus formulated to be answered by the Hon’ble Apex Court was the following:
“Whether the High Court ought to interfere, under Article 226/227 of the Constitution, with an Order passed by the National Company Law Tribunal in a proceeding under the Insolvency 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.”
The Hon’ble Apex Court in the matters of M/s. Embassy Property Developments Supra, after hearing the respective contentions, had laid down that since by the implications of Section 238 of the I & B Code, the IBC has been given an overriding effect over all other statutes it will have a binding effect in terms of the jurisdiction conferred to the Tribunals under Section 60(5) and Rule 11 of I & B Code.
If it is to be kept in mind that in a way, the Hon’ble High Court exercising their jurisdiction under Article 226, have been refrained from interfering over the orders passed by the NCLT/NCLAT and the reason behind it is that I and B Code, being a complete code in itself does not provide a room for challenging the orders of the NCLT, otherwise, than in the manner prescribed under the code. The analysis drawn by the Hon’ble Apex Court had been with regards to the implications to the provisions contained under the I & B Code, vis-a vis Article 226 had been dealt with in Para – 11, 13 & 14 of the said Judgement which are extracted hereunder: -
“11.It is beyond any pale of doubt that IBC, 2016 is a complete Code in itself. As observed by this Court in M/s Innoventive Industries Limited vs. ICICI Bank, it is an exhaustive code on the subject matter of insolvency in relation to corporate entities and others. It is also true that IBC. 2016 is a single Unified Umbrella Code, covering the entire gamut of the law relating to insolvency resolution of corporate persons and others in a time bound manner. The code provides a three-tier mechanism namely (i) the NCLT, which is the Adjudicating Authority (ii) the NCLAT which is the appellate authority and (iii) this court as the final authority, for dealing with all issues that may arise in relation to the reorganisation and insolvency resolution of corporate persons. In so far as insolvency resolution of corporate debtors and personal guarantors are concerned, any order passed by the NCLT is appealable to NCLAT under Section 61 of the IBC, 2016 and the orders of the NCLAT are amenable to the appellate jurisdiction of this court under Section 62. It is in this context that the action of the State of Karnataka in by-passing the remedy of appeal to NCLAT and the act of the High Court in entertaining the writ petition against the order of the NCLT are being questioned.
13.What is recognized by Article 226 (1) is the power of every High Court to issue (i) directions, (ii) orders or (iii) writs. They can be issued to (i) any person or (ii) authority including the Government. They may be issued (i) for the enforcement of any of the rights conferred by Part III and (ii) for any other purpose. But the exercise of the power recognized by Clause (1) of Article 226, is restricted by the territorial jurisdiction of the High Court, determined either by its geographical location or by the place where the cause of action, in whole or in part. arose. While the nature of the power exercised by the High Court is delineated in Clause (1) of Article 226, the jurisdiction of the High Court for the exercise of such power, is spelt out in both Clauses (1) and (2) of Article 226.
14.Traditionally, the jurisdiction under Article 226 was considered as limited to ensuring that the judicial or quasi- judicial tribunals or administrative bodies do not exercise their powers in excess of their statutory limits. But in view of the use of the expression "any person in Article 226 (1), courts recognized that the jurisdiction of the High Court extended even over private individuals, provided the nature of the duties performed by such private individuals, are public in nature. Therefore, the remedies provided under Article 226 are public law remedies, which stand in contrast to the remedies available in private law. As observed by this Court in Nilabati Behera @ Babita Behera vs. State of Orissa, public law proceedings serve a different purpose than private law proceedings.”
This issue has been in debate since quite a long time and in a matter reported in ILR LX VIII Calcutta 138, it was held, that before a court can be said to hold a jurisdiction to decide a matter, it must not only have jurisdiction to try the matter or a case brought before it, but it must also hold an authority and jurisdiction to pass an order, which has been prayed for in the proceedings. Since the company tribunals created under the statute had a specific jurisdiction to pass an order, the same could not have been interfered with by the Hon’ble High Court in the exercise of its plenary powers by overriding the implications of the provisions contained under Section 238 of the I & B Code the logic being that correctness of a decision of the Tribunal can only be called into question before a superior court which is created and vested with the powers of such judicial and/or an administrative review under the statute.
Needless to mention, in the Judgement of M/s. Embassy Property Developments Pvt. Ltd. Vs. State of Karnataka & Ors., the issue of jurisdiction and the powers of the NCLT has been dealt with in very clear terms in Para – 30 of the Judgement which is extracted hereunder: -
“Jurisdiction and powers of NCLT
30.NCLT and NCLAT are constituted, not under the IBC. 2016 but under Sections 408 and 410 of the Companies Act. 2013. Without specifically defining the powers and functions of the NCLT, Section 408 of the Companies Act, 2013 simply states that the Central Government shall constitute a National Company Law Tribunal, to exercise and discharge such powers and functions as are or may be, conferred on it by or under the Companies Act or any other law for the time being in force. Insofar as NCLAT is concerned, Section 410 of the Companies Act merely states that the Central Government shall constitute an Appellate Tribunal for hearing appeals against the Orders of the Tribunal. The matters that fall within the jurisdiction of the NCLT, under the Companies Act, 2013, lie scattered all over the Companies Act. Therefore, Sections 420 and 424 of the Companies Act, 2013 indicate in broad terms, merely the procedure to be followed by the NCLT and NCLAT before passing orders. However, there are no separate provisions in the Companies Act, exclusively dealing with the jurisdiction and powers of NCLT.”
Thus, the aforesaid Judgement makes it quite clear that the Hon’ble High Courts should lay their hands off in those proceedings which are governed by a special statute like I & B Code 2016, because the right of judicial review being made available before the Appellate Jurisdiction under the code itself, it should not be left open to be gone into under Article 226 & 227 of the Constitution of India, despite being a constitutional remedy for the infringement of a constitutional right or for the exercise of a supervisory jurisdiction. It follows that the matters emanating from I & B Code, do not apparently fall for consideration under either of the expressions given under Article 226 & 227 of the Constitution of India and hence this Tribunal would not hesitate to observe that the Hon’ble High Court of Telangana, should not have by the order condoned the delay and instead could have directed the matter to be decided on merits by the Tribunal.
Vide its judgement dated 19.03.2024, the Hon’ble High Court of Telangana had condoned the delay on its own, which itself is beyond its competence since entertaining an Appeal under I & B Code being a prerogative of the Appellate Tribunal under the prescribed statute under section 61 of the Act, where the aspect of limitation plays a very pivotal role in view of the provisions contained under Section 61(2). Thus, the Hon’ble High Court should not have allowed the writ petition and condoned the delay as it was not lying with the jurisdiction of Hon’ble High Court to condone the delay and furthermore it is not open for the Hon’ble High Court, that after considering the aspect of delay, to have remitted the matter to this Appellate Tribunal, to decide the appeal itself afresh on merits.
It is seen that based on the Judgement of 19.03.2024 of the Hon’ble High Court of Telangana, that the Appellant has filed a Restoration Application seeking recall of the order dated 19.10.2022, dismissing the Company Appeal (AT) (CH) (Ins) No. 370/2022 and the relief sought for in the Recall Application is expressed in the following manner: -
“In view of the aforementioned facts and circumstances, it is therefore humbly prayed that this Hon'ble Tribunal may kindly be pleased to
i.Recall the appeal filed in COMPANY APPEAL (IB) NO. 370 OF 2022 before the Hon'ble National Company Law Appellate Tribunal, Chennai Bench and consider the same on merits;
ii.pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances and thus render justice.”
In this context, there arises yet another interesting issue which is required to be dealt with at this juncture, that is, of the power of recall which is being projected by the appellant in his recall petition as synonymous with the power of review. It is to state that both are quite distinct to one another. The power of “review” does not grant the power to a Court to re-scrutinise its Judgements in its entirety, except wherein there are apparent flaws/errors in the Judgement on the face of the record. But this may not be the case at hand herein for the reason being that the power of “review” is yet again a creation of a statute and since it’s not a provision contemplated under I & B Code, 2016, this Tribunal is of the view that it will not have power to review its own Judgement which has been rendered finally on merits.
So far as the restoration recall application is concerned, which is presently under consideration at hand, it has its birth on the basis of the Judgement dated 05.03.2024 of the Hon’ble High Court of Telangana. We are of the view that since there was an inherent lack of constitutional jurisdiction vested with the Hon’ble High Courts, to travel into the judicial validity of the judgement rendered by this Tribunal on merits, solely on the basis of the said Judgement of the Hon’ble High Court, no recall would be maintainable or could have been preferred because the same is not maintainable and particularly when the recall application, is being sought to be utilised to induce this Tribunal to take up the review of its own judgement for rehearing of the appeal afresh in this appellate proceedings under section 61 of I & B Code, 2016.
The Hon’ble Apex Court had dealt with an almost similar issue with regards to the question, that when a special statute provides for a specific forum for redressal of grievances, whether the Hon’ble High Court, would at all have jurisdiction to deal with the matter or not. Though this case is related to the matters pertaining to the Consumer Protection Act, the verdict of Hon’ble Apex Court is singularly illustrative while deciding the said case, the Hon’ble Apex Court in Para – 9 of its Judgement has held in clear and in equivocal terms that the High Courts in exercise with Article 226 of the Constitution of India should not interfere in those matters where a specific statutory forum has been created under a special statute. The relevant Para is extracted hereunder: -
“While declining to interfere in the present special leave petition preferred against the order passed by the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, we hereby make it clear that the orders of the Commission are incapable of being questioned under the writ jurisdiction of the High Court, as a statutory appeal in terms of Section 27-A(1)(c) lies to this Court. Therefore, we have no hesitation in issuing a direction of caution that it will not be a proper exercise of jurisdiction by the High Courts to entertain writ petitions against such orders of the Commission.”
For the aforesaid reason, this Tribunal does not find any merits in the Restoration Application and consequently the Restoration Application (AT) (CH) No. 2/2024, would stand rejected. In view of the reason which has been assigned while dealing with the Restoration Application, as above preferred in Company Appeal (AT) (Ins) No. 370/2022, a similar restoration application being Restoration Application (AT) (CH) No. 3/2024 as preferred in Company Appeal (AT) (Ins) No. 371/2022 would also stand rejected.